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Supreme Court rejects stroke victim's claim for overnight carer

6 July 2011

The Supreme Court has 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.

Lady Hale, who dissented, said the majority ruling 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 appellant, however, is appalled at the thought of being treated as incontinent (which she is not) and having to use pads,” Lord Brown said. “She considers this an intolerable affront to her dignity.”

The Court of Appeal found in October 2010 that the decision to replace the carer with incontinence pads had not been put into operation and had been reassessed in subsequent care plan reviews.

It 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 at the Court of Appeal.

On article 8, Lord Brown said: “There is, of course, a positive obligation under article 8 to respect a person’s private life. But it cannot plausibly be argued that such respect was not afforded here.”

Lord Brown said that council staff “sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients”.

He rejected both challenges under the Act. Lord Brown said that he found it “impossible” to regard the council’s decision as a practice, policy or procedure under section 21D of the Act, and, even if it was, it must be regarded as a “proportionate means of achieving a legitimate aim”.

Lord Brown rejected a further argument under section 49A of the Act, which deals with equality of opportunity, describing it as “hopeless” because the claimant was obviously disabled and the council discharging functions under statutes “which expressly direct their attention to the needs of disabled persons”.

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

Lady Hale dissented. She said the council had not found McDonald an easy person to deal with, but the fact they had been trying for so long to persuade her to accept their point of view did not mean it was a rational one.

“A person in her situation needs this help during the day as well as during the night and irrespective of whether she needs to urinate or to defecate,” Lady Hale said.

“Logically, the decision of the majority in this case would entitle a local authority to withdraw this help even though the client needed to defecate during the night and thus might be left lying in her faeces until the carers came in the morning.

“This is not Ms McDonald’s problem at the moment, but her evidence leaves one in no doubt that this is one of her fears.”

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