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The importance of Spiritual welfare in making decisions about someone who has lost capacity.

Garner & Hancock, Family Law - Grandparent Visiting Rights

Making a Best Interest decision under the Mental Capacity Act 2005

Spiritual -v- Physical welfare

 

It is very easy in what is largely a secular country to forget that religion still plays a big part in many people’s lives.  That its as important to have regard to a person’s spiritual welfare as their physical welfare.

Background of Case 

In the case of London Borough of X v MR and others [2022] MR was 86 years old, had dementia and was severely cognitively impaired. He lacked capacity to decide where to reside and what care and treatment to receive. His life expectancy was between three months and two years.

Best interest of the father

MR’s nephew believed that it was in MR’s best interests to move from his current nursing home (CNH) to a Jewish one (JCH). X, MR’s Relevant Person’s Representative, and the Official Solicitor on X’s behalf considered that MR should remain at CNH.

Court decision

The Court decided MR should move to the Jewish care home. It considered the fact that relocation could unsettle MR, and the stress involves seriously affect his health. He was settled and received good care at CNH. However, MR’s life expectancy was limited; a person at the end of life may value contentment over maximising the duration of life.

Human rights issue

MR’s rights under Article 9 of the European Convention of Human Rights (freedom of religion) and Article 2 (right to life) were finely balanced. A Jewish care home would inevitably better satisfy MR’s religious and cultural needs. It had an on-site synagogue, for example.

MR’s condition limited his observance of religious practices but these were still relevant to his best interests. MR could recall and apparently emotionally connected with religious hymns. These and other familiar religious and cultural activities would allow MR to participate in a group, even with limited intellectual understanding of them; he lived “emotionally and through the senses”. This would significantly benefit MR and outweighed the risks of moving him to JCH. MR would have decided on this; when he had capacity, it was evident that he and his (deceased) wife envisaged spending their last days in a Jewish care facility, consistent with their beliefs and values.

Disappointment by the court that spiritual needs were not taken into account

This is an important illustration of the impact of religious beliefs in best interests decisions. The Court expressed disappointment with CC and X for giving limited and belated support to MR’s religious and cultural needs in some respects, which were insufficiently accounted for in his care plan. The Court considered that Article 9 “surely required more than this”.

For more information on the importance of best interests decisions contact ngeorge@garner-hancock.co.uk

 

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