​MA & AA, Re (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65

Best interests judgment involving two P's, a married couple now both diagnosed with dementia, and where there are concerns over contact

MA and AA have been married for 63 years. They previously lived at home together but as their illnesses progressed  concerns arose about their ability to manage at home. They moved to the same room at placement 1 but MA was later moved to another floor and contact with AA was stopped. Placement 1 was unable to provide the care MA required so she was moved to placement 2 which was a specialist unit able to deal with her needs. Attempts at phone contact and video contact failed so the judge had to decide on future care and residence, whether there should be any further attempts at contact and whether cessation of contact with is a breach of their Article 8 rights. It was accepted that both MA and AA lacked capacity.

Judge Simpson notes the relevant case law including HH v Hywel Dda University Health Board & Ors [2023] EWCOP 18 another case involving a 'two P situation' in which Francis J emphasised a holistic approach. He then sets out the evidence around the breakdown of contact, which was partly due to MA's erratic behaviour during face to face contact and AA's lack of interest in video meetings. He identifies the question as being whether AA should move placement to a sister home of MA's current placement (placement 3) to be nearer to her, however he concludes AA would be unsettled by the move. Then at [62] he states 'it is universally accepted that the starting point in this matter is that wherever possible, a husband and wife should have contact with each other' but the evidence shows, sadly, AA no longer recognises MA. Given this analysis, he decides at [80]  he had 'not found any evidence that the respondents have acted in a way which is disproportionate and incompatible with a Convention right.' Two helpful balance sheet tables set out the pros and cons underpinning the judge's decision. 

Read the judgment on Bailii