Mental capacity, end of life care and religion: MR & Ors

In London Borough of X v MR & Ors [2022] EWCOP 1, MR, aged 86, was living with dementia and was expected to die at some time between the spring of 2022 and the spring of 2024 [22]. He had been discharged from hospital to CC Nursing Home during the first COVID emergency, where he was held under a standard Deprivation of Liberty issued by the local authority. The sole issue before the Court was not whether it was in MR’s best interests to return home but whether he should remain at CC Nursing Home or move to a Jewish care home [2].

The Second Respondent, PD, MR’s nephew by blood and his executor, believed that it was in MR’s best interests to remain at CC Nursing Home [5] but the Third Respondent, AB, disagreed, believing that it was in MR’s best interests to be transferred to a Jewish care home [6]. The applicant local authority and the Official Solicitor, on MR’s behalf, submitted that it was in MR’s best interests to remain where he was, but the Official Solicitor thought that the decision was a “very finely balanced” one [7]. MR’s dementia was at an advanced stage, and it was common ground that he lacked capacity to decide for himself where to live and what care and treatment he should receive [21].

Before his mental decline, MR had been a regular attender at Sabbath services and religious festivals. In his will, he had expressed the wish to be buried in accordance with the Jewish faith and to leave his estate to three Jewish charities [88]. The problem was that if MR were transferred to a Jewish care home there was a high risk of adverse events, including a higher risk of mortality, particularly within the first few months of relocation, and

“This risk needs to be considered in the context that his life expectancy is such that he may only have a few months left to live, so that he may well die soon whatever [the] decision” [71].

On the balance of the evidence, District Judge Eldergill concluded that it was in MR’s best interests to move to T Care Home as soon as practicable. As someone who had been a practising Jew, he would benefit from

“seeing and hearing religious and cultural practices and traditions such as Friday night candles, making Kiddush, Friday night dinners, the singing of Jewish songs and a care home wide celebration of Jewish Sabbath, holy days and festivals” [99].

Cite this article as: Frank Cranmer, "Mental capacity, end of life care and religion: MR & Ors" in Law & Religion UK, 2 March 2022, https://lawandreligionuk.com/2022/03/02/mental-capacity-end-of-life-care-and-religion-mr-ors/

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