Judge: DJ Eldergill
Citation:  EWCOP 1
MR was an 86-year-old gentleman with advanced dementia who, during the first Covid emergency in April 2020, was discharged from hospital to a secular nursing home where he remained with his wife. At that time, little or no consideration had been given to his wishes or to his religious and cultural needs. Some staff were not even told the couple were Jewish and had mistakenly fed them pork. Both challenged their respective DoLS authorisations, but his wife sadly passed away before the hearing.
He needed help with all activities of daily living, as well as a full body hoist to transfer, and his life expectancy was estimated to be between Spring 2022 and Spring 2024. The issue was whether it was in his best interests to remain or to move to a Jewish care home. But with his life very much drawing to a close, “this case is about not just where and how he lives but where and how he dies, where he would wish to live and die if he still had capacity, and what he wishes for himself now” (paragraph 23). MR was settled, content, and had developed a rapport with staff who had taken some steps to try to accommodate his religious and cultural needs:
“81… Food is now specially prepared for him, to cater for his dietary requirements … Furthermore, it is recorded that … staff play Jewish movies and music for him on a daily basis. However, at the time of the hearing it was disturbing that no Rabbi had been involved or visited MR, more than 18 months after he arrived there. It is also disappointing that his support worker said that it would not normally be for the nursing home to arrange for a Rabbi to attend, and that it would be the responsibility of the family to make such arrangements … There appears to have been no attempt by anyone to try to arrange a visit to his synagogue, no one visiting from an organisation such as Jewish Visiting and, as far as I can tell, no organised attempt to celebrate or mark festival days with MR other than on one occasion … Article 9 [ECHR] surely requires more than this.
The main factors in favour of staying put were his contentment, the high risk of adverse events of relocation (including a higher risk of mortality, although he could die soon even if he remained), and his loss of a sense of familiarity, environment and routine. But the secular nursing home could never be able to fulfil religious and cultural needs in the same way as a Jewish care home. The fundamental question, therefore, was “what are MR’s religious and cultural needs, and how important is Jewish religious and community life to him? Furthermore, how important were these things to him when he had capacity and what he would be likely to want now if he still had capacity?” (paragraph 83).
DJ Eldergill had uncontradicted evidence that Jewish law “imposes obligations only upon those who enjoy full mental capacity” which, owing to the stage of his illness, would no longer be expected of MR (paragraph 85). But such logic and compassion did not mean religious and cultural practices were irrelevant to him:
“86 … Unless they now express contrary wishes, or there are other overriding considerations, where possible one must seek to enable them to live their remaining days in a way consistent with those wishes, beliefs and values. The Mental Capacity Act 2005 is an enabling Act designed to help, where practicable, those without capacity to live the life they wish or would wish to live if they still had capacity.”
Before her death, MR could no longer recognise his wife as they sat separately in the lounge, and he showed no interest when staff played Jewish movies and music for him every day. But in a heart-wrenching moment, he recalled and repeated information memorised long ago as he sang Jewish hymns with the Rabbi who visited. They had kindled something deep down (paragraph 97). He was a devoted and committed member of his synagogue who always sought connection with the Jewish community and felt the necessity to connect to his Jewish roots. On a fine balance, it was in his best interests to move as soon as practicable:
“99. Having undertaken this balancing exercise as best I can, I have concluded that it is in MR’s best interests to move to T Care Home as soon as practicable. Even if he were to remain at CC Nursing Home, he may have only months left to live. In my opinion, it is likely that he will benefit from the familiar religious and communal activities at T Care Home, although he would be unable to put into words why it pleases him. This gives him the best opportunity to enjoy or gain satisfaction from what life is left to him and the likely benefits outweigh the likely risks. I agree with AB and his sister that it is likely he will feel a comforting sense of familiarity and reassurance from seeing and hearing religious and cultural practices and traditions such as Friday night candles, making Kiddish, Friday night dinners, the singing of Jewish songs and a care home wide celebration of Jewish Sabbath, holy days and festivals (D82).
Reminiscent of his decision on behalf of Manuela Sykes, DJ Eldergill has once again illustrated the aim of best interests decision-making: to try to reach the decision that the person would have made for themselves if they still had capacity to make it. The depth of his factual analysis and thought reflects the scale of the challenge, particularly in the pursuit of MR’s values and beliefs. Whilst past and present wishes and feelings are often more easily ascertained, identifying the values and beliefs of someone with advanced dementia is no mean feat. Particularly striking is that arguably MR’s current preferences were to remain, but his will and past preferences would be to move. And that tension was amidst his rights under Articles 9, 8, 5, and 2 ECHR. The decision is therefore a good example of how respecting “rights, will and preferences” in Article 12 CRPD terms can involve a delicate balancing exercise when they do not all point in one direction.