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Human rights of elderly ‘at serious risk’

Supreme Court rejects claim from stroke victim for overnight care

11 July 2011

The Equality and Human Rights Commission has warned that old people’s rights are “at serious risk” after the Supreme Court rejected a claim by a disabled pensioner to an overnight carer to help her go to the toilet. The council wanted her to use incontinence pads.

John Wadham, group director of legal at the EHRC, said local authorities would have greater discretion in deciding how to meet home care needs and would find it easier to justify withdrawing care.

“This means that older people’s human rights to privacy, autonomy and dignity will often be put at serious risk,” Wadham said.

“The court has missed a significant opportunity to interpret the law to protect some of the people most vulnerable to harm in society. The commission’s inquiry into care in the home has already highlighted some of the problems with the current system of home care. This judgment will only fuel those problems.”

Lady Hale, who dissented from the majority ruling, claimed it could lead to councils withdrawing care even if it meant old people lying in their own faeces until the morning.

Delivering the leading judgment in R (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33, Lord Brown responded: “One might just as well say that logically, on Lady Hale’s approach, it would be irrational not to supply a night carer to take the client to the commode, irrespective of cost, if there is any likelihood of the client having to urinate even once during the night.

“The true position is that the decision is one for the local authority on the particular facts of the case and, on the particular (and undisputed) facts here, it is nothing short of remarkable to characterise the respondents’ decision as irrational.”

The court heard that former ballerina Elaine McDonald suffered a stroke at the age of 56, leaving her with severely limited mobility and other disabilities.

As a result she has to urinate two or three times a night and uses a commode, with the aid of a night-time carer.

The council argued that instead of this McDonald should use incontinence pads which would remove the need for the carer, be safer and cut the cost of her care by £22,000 a year.

The Court of Appeal in October 2010 rejected McDonald’s human rights claim under article 8 and her argument that the council’s decision breached the Disability Discrimination Act 1995. Lord Brown said he agreed with Lord Justice Rix’s leading judgment.

Lords Walker, Dyson and Kerr agreed that the appeal should be dismissed, for their own reasons. Lady Hale dissented.

Councillor Fiona Buxton, the Royal Borough of Kensington and Chelsea’s cabinet member for adult social care, said the council must balance the needs of individuals with the many other people who needed support.

She went on: “For these reasons this is an immensely important case. We understood that this resident had a strong preference for a night-time carer; however, the cost of providing personal care of this kind in this case would have been prohibitive and would compromise our ability to look after other vulnerable residents.”

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