XX v West Northamptonshire Council & Anor [2022] EWCOP 40

An application was brought before the Court under s.21A of the Mental Capacity Act 2005 (‘MCA’) which concerned XX. The main issue related to whether it was in XX’s best interests to travel to Jamaica and live out the remaining years of life as he would be supported by his extended family including 2 living sisters and many nieces and nephews.

XX is 89 years old and originally from Jamaica but came to the UK to live and work in the 1960s. He lived for many years with his wife until she moved into a nursing home in 2013 and later passed away in 2016. XX has lived at his current care home since December 2020 following his discharge from hospital after he was admitted following a fall at home where he had collapsed. He has also been diagnosed with Alzheimer’s.

XX and his wife had no biological children, however he had two-step sons in the UK and at least one step-granddaughter, B. B was also appointed as Lasting Power of Attorney (LPA), however it was the view of the Office of the Public Guardian (OPG) that XX did not have the required capacity to execute the LPA in her favour.

In the period since 2005 the evidence suggests that XX has only returned to Jamaica on 2/3 occasions. However, he did register with the Jamaican Returning Residents Association, and he paid tax on a property that he had inherited. His family also said that he had talked about returning to Jamaica to live.

In the course of these proceedings, a report under s.49 MCA was ordered and produced by Dr Pantula a consultant in Old Age Psychiatry. The report stated that XX had deteriorated and was confused, but that she was of the opinion if XX were to receive the same standard of care, she could not see why it was not appropriate for XX to travel but acknowledged significant difficulties that could arise. She also said unfamiliar surroundings might increase agitation, but overall, XX could travel as long as it was properly mitigated and planned, and proper consideration given to his frailty as additional support would be required.

XX’s family in Jamaica submitted plans constituting a detailed care package, inclusive of both family care and professional care as and when needed. The plan proposed that XX would live in a five bedroomed house belonging to his sister and other members of the family would live in the house to provide 24/7 care and supervision.

All parties agreed that XX was too frail to travel on normal flight and therefore an air ambulance would be required at an estimated cost of £100k. The Judge noted that XX’s capital appeared to be in region of £150k. One of the points raised by Mr Daley for the Applicant was that the cost of XX staying at his current care home would be around £40,000.00, but if he returned to Jamaica his care costs would be reduced and therefore his funds would last longer.

The Local Authority’s stance was that XX should remain in his current care home, however after considering the best interests tests under s.4 of the MCA, Mrs Justice Lieven DBE concluded that it was in XX’s best interests to return to Jamaica.

Mrs Justice Lieven also said that XX would ‘benefit of being in the place of his childhood, with the smells of that place, with the food of his childhood and also surrounded by religion of his family’ and that there wereintangible benefits in the nature of human feeling and an experience for XX to spend those last years with a loving family around him rather than being cared for by strangers in a care home.

The ruling of this case is significant in showing how important it is to carefully consider the Protected Party’s wishes and feelings in determining a decision when that person lacks the required capacity to make such a decision themselves.

The full judgement can be found at XX v West Northamptonshire Council & Anor [2022] EWCOP 40 (22 July 2022) (bailii.org)

If you have any questions regarding this summary case law please contact Danielle Walker here

 

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