Dementia: Protecting The Interests Of Each Spouse

Katie de Swarte

Protecting Loved Ones with Dementia

Dementia is a cruel disease, slowly robbing individuals of their character and their abilities. The potential extent of its cruelty is illustrated in a recent case where a husband and wife, both in the advanced stages of dementia, were prevented from having contact with each other. That was considered to be in their best interests.

If you have a loved one who is suffering from dementia and you need legal advice to protect them, we can help you. At Osbornes Law, our specialist private client solicitors act to protect clients with dementia; and regularly advise concerned family members whose loved one has a dementia or Alzheimer’s diagnosis.

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

Where a couple are both suffering from dementia, determining what is in their best interests will increasingly become a challenge. In this case, the couple (H and W) met when they were 11 and had been married for 63 years. Sadly, their dementia had worsened to the point where they had to go into a care home.

By the time legal proceedings began, W (84) had been moved from the home where she and H (89) had been living (latterly on separate floors) into a specialist unit to ensure she received the appropriate care. Sadly, attempted communication between the couple had failed.

There were very real concerns about the impact of continuing direct contact – particularly on W who would be very distressed by the end of contact sessions. Neither had the mental capacity to make their own decisions around living arrangements and contact (even with each other).

A necessary act by the Court of Protection

Local authorities have a duty under s1(1) of the Care Act 2014 to promote individual wellbeing, including in personal relationships; and to ensure any restrictions on a person’s rights or freedom is kept to the minimum necessary.

The Local Authority asked the Court of Protection to decide the issue of contact and to determine whether ending contact would breach their Article 8 rights to a family life. The judge adopted a holistic approach, having regard to the couple’s respective needs and what was in each of their best interests.

The starting point is that wherever possible, spouses should have contact with each other. Sadly, H no longer recognised his wife and neither recognised each other’s voice; contact caused distress; and H was particularly at risk of harm during face-to-face contact time.

The judge weighed up the advantages of contact continuing, versus the disadvantages and found that there was a clear conflict between their best interests. It was “blatant and obvious” that there should be no contact as far as H was concerned.

It was less obvious as far as W was concerned, but the judge decided no contact was in her best interests for the time being. He was sensitive to the fact that barring contact would distress W, but that had to be balanced against the distress she faces whenever remote contact is imposed on her.

Interference with their Article 8 rights was necessary and proportionate to protect W’s best interests. For the same reasons, the Local Authority had complied with its statutory duty under the Care Act 2014.

Importantly, contact was not stopped permanently: it was to be kept under review – with the first review to be undertaken three months’ after the initial decision.

How Can We Help?

We understand how distressing these types of cases are for the family members of loved ones living with a dementia diagnosis. The team at Osbornes Law is experienced in advising on dementia-related matters, and understand the nuances and the emotional impact on all the parties.

If you need help contact us by:

• Filling the online contact form below; or
• Calling us at 020 7485 8811