• 01616 966 229
  • Request a callback
Stephensons Solicitors LLP Banner Image

News and Events

The "magnetic" factor - family contact vs the need for consistent communication with care home staff and other residents

View profile for Megan Taylor
  • Posted
  • Author
Healthwatch releases report of findings following two year analysis of home care services in England

The recent case of K v N Council [2022] MHLO1 (COP) concerned the residence and care arrangements of a Polish National, ‘K’.  K is an 89-year-old lady who has a diagnosis of dementia and schizophrenia. She is also registered deaf and blind. She is polish speaking and does not speak English.

K was discharged from hospital to ‘H’ care home in March 2021, as it was close to her great niece, ‘G’ and G’s son, which would allow the benefit of regular contact with her family. At the time, there was only one Polish speaking member of staff at H.

The proceedings started as a s21A challenge to the standard authorisation in place at H care home. In September 2021, the local authority applied for an order to move K to ‘J’ care home. K’s social worker reported that K had lost over 6kg of weight since her admission to H, she was low in mood, expressing a wish to move back to Poland, not engaging with other residents due to the language barrier and isolating herself in her room most days. Although K’s physical needs were being met, her cultural needs were not, which was impacting her emotional wellbeing. J care home had many members of staff who spoke Polish, but was a minimum of 1 hour 30-minute journey time away from G.

G strongly objected to the proposed move to J on the basis that an unfamiliar environment would be traumatic for K, and she would lose the benefit of frequent contact with family due to the travelling distance. K herself expressed to her Accredited Legal Representative (ALR) that the proposed move would be a good idea on a trial basis whilst it was determined whether she could return to Poland. The court granted the order to move K to J for a trail period and K moved to J in September 2021.

Following the move to J, G expressed concern for K’s welfare; she did not believe that K was happy or settled at J and reported that K complained about the quality of food. G expressed her own frustration about K’s placement at J in that her hair had been cut short, despite years of shoulder length hair, when taking K out for a meal or a trip, K was reluctant to return to J, which she had not done at H, K was unable to go outside and was not able to smoke as she wished as her cigarettes had been confiscated, and G was upset at the attitude of the manager.

G gave multiple reasons as to why she thought K should return to live at H; G lived ten minutes away and could visit frequently and bring K to their home during the day or for overnight stays, there were some Polish speaking staff, G would be available to respond to calls and visit if Polish speaking staff were not on duty, and K was much happier at H than her current placement.

K’s social worker contradicted many of the issues raised by G and highlighted noticeable improvements to K’s weight, presentation, mental health, socialisation and wellbeing, as well as K experiencing fewer delusional episodes and no longer requiring PRN medication. K’s social worker also made recommendations for changes that could be made at J to alleviate some of the concerns raised by G, such as allowing K the option to sit alone outside once she had been escorted by staff and obtaining a small fridge for K to keep her food to hand. K’s social worker highlighted the importance of K being able to reliably communicate with those caring for her, particularly if she experiences deterioration in her mental health or in a medical emergency.

Ultimately, K wished to return to Poland, which was not an available option. She expressed on numerous occasions that she would prefer to live in a Polish care home and stated that the staff at J were good to her.

All parties in this case, including K’s ALR, supported the proposal for K to remaining living at J in the long term. G firmly opposed this plan, for the reasons stated above, and thought it to be in K’s best interests to return to live in a residential home in the area local to her, or to H, where K was living previously.

The judge was tasked with weighing the significant benefits of frequent family contact, with what the judge considered the ‘magnetic factor’ in this case, namely “the need for K to be able to communicate freely 24/7, unhindered by any language barrier.”

The judge, having regard to s4 Mental Capacity Act 2005, decided that it was in K’s best interests to remain living at J. The judge concluded that, “based on an evaluation of the overall quality of life that can be provided to K as a result of living in a Polish care home” … she is “satisfied that K’s holistic needs, which include her linguistic, social, cultural and care needs, are met to a good standard at J.”

The judge emphasised the need for “every effort” to be made to repair relationships between G and J and build more positive communication going forward. Furthermore, K’s wish to spend time at G’s home should be accommodated if appropriate and manageable.

This case demonstrated the interplay between two important factors; frequent family contact, and the need for K to be able to communicate freely, 24/7. Although frequent family contact was identified as being a significant and important factor in the best interests decision, the ability of a placement to meet K’s linguistic, social, cultural and care needs proved to be the vital factor in determining where K should live.