MK v JK & Ors

Factual and Procedural Background

The matter concerns an individual ("JK") born in 1927, diagnosed with vascular dementia and Alzheimer's Disease, who lacks capacity to decide where to live and to litigate. Since May 2010, JK has resided at a nursing home ("the Home") arranged and funded by The PCT under NHS continuing care. The parties agree JK should live in a nursing home, but dispute which home is appropriate. Two of JK's children ("MK" and "KK") contend the Home is unsuitable and propose an alternative, the "CNC Home." Others, including JK's sibling and another child, support JK remaining at the Home, citing concerns about the risks of moving him.

The proceedings began with an application by MK to be appointed Personal Welfare Deputy for JK. The court case has been managed to resolve the single issue of JK's residence. Expert evidence was obtained from a psychiatrist and an independent nurse expert. The Official Solicitor acts as JK's litigation friend. The court heard from family members and professionals over several days. The PCT's position is neutral, while the Official Solicitor supports a move to the CNC Home.

JK is a professional musician with a history of estrangement among family members. He deteriorated over time, requiring increasing care, and was admitted to hospital before discharge to the Home as an interim measure. Concerns were raised by MK and KK about the Home's care standards, including uninvestigated bruising and missing personal property. The Care Quality Commission reviewed the Home and identified safeguarding and staffing concerns. An expert nurse raised further safeguarding alerts. Various alternative homes were considered, but only the CNC Home was found suitable and available, despite a temporary suspension of admissions due to safeguarding alerts that were largely unsubstantiated.

JK's health and care needs include moderately severe dementia with unpredictable and sometimes aggressive behavior requiring 24-hour specialist nursing care. The experts describe JK as a free spirit who values peace, music, and privacy. The Home is described as compact, dark, and institutionalized with some shortcomings in care and environment. The CNC Home is described as lighter, with en suite facilities, tailored activities, physiotherapy, and a person-centred approach. Risks of moving JK include disorientation and aggression, but these are considered small and manageable with a proper transition plan. Family dynamics involve estrangement and differing motives regarding JK's care.

Legal Issues Presented

1. Whether it is in JK's best interests to remain at the current nursing home ("the Home") or to move to the alternative "CNC Home".
2. Whether the appointment of a Personal Welfare Deputy is appropriate or necessary for JK.
3. The application of the Mental Capacity Act 2005 and the European Convention on Human Rights, particularly Article 8, in determining JK's residence and welfare decisions.

Arguments of the Parties

MK and KK's Arguments

• The Home is unsuitable for JK due to concerns about care quality and safeguarding.
• The CNC Home is a better alternative that can meet JK's needs more effectively.
• They accept there are risks in moving JK but believe the benefits outweigh these risks.
• They have shown flexibility in recognizing the CNC Home as the only suitable care home available.

JiK, MoK and EK's Arguments

• JK should remain at the Home because it is satisfactory and moving would pose unnecessary risks to JK's health and wellbeing.
• They downplay or dispute the safeguarding concerns raised against the Home.
• They acknowledge the CNC Home is a good facility but prioritize stability and familiarity for JK.

The PCT's Position

• Neutral between the two homes.
• Prepared to facilitate JK's move to the CNC Home if deemed appropriate.

The Official Solicitor's Position

• Supports a move to the CNC Home based on expert evidence and best interests considerations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered JK's medical condition, care needs, and personal characteristics, relying heavily on expert evidence from Dr Barker and Miss Phair. It compared the two nursing homes on multiple factors including environment, care quality, risk, and familiarity. The Home was found to have significant shortcomings and an institutionalized care model, whereas the CNC Home offered a more person-centred approach with better facilities and tailored activities.

The court acknowledged the risks associated with moving JK, such as disorientation and aggression, but found these risks to be speculative and manageable with a carefully planned transition. The court also considered family dynamics and motives, concluding that MK and KK acted solely in JK's best interests, while JiK's position appeared influenced by a desire to maintain the status quo.

The court applied the statutory framework of the Mental Capacity Act 2005, including the best interests checklist, and the proportionality requirement under Article 8 of the European Convention on Human Rights. It found that court intervention was necessary and justified to resolve the family dispute.

Regarding Deputyship, the court reasoned that appointing a Personal Welfare Deputy was unnecessary and inappropriate for resolving the single issue of residence, which is properly determined by the court itself. The court emphasized the principle of least intervention under the Mental Capacity Act and the importance of collaborative decision-making.

Holding and Implications

The court ordered that JK should move to the CNC Home, with his placement at the Home retained for eight weeks as a fallback should the move fail. The court declined to make specific orders about the transition plan, leaving that responsibility to The PCT.

The decision directly resolves the dispute over JK's residence in his best interests, prioritizing a higher standard of care and environment while managing risks. No new legal precedent was established, and the court clarified the limited role of Deputyship in personal welfare decisions, reinforcing that significant welfare issues such as residence remain within the court's exclusive jurisdiction.