Night fever

‘Ballerina ruling threatens care of the elderly’ ?(The Independent, 7 July 2011)

‘A loss of dignity: judges turn their backs on former ballerina’s fight for overnight care’ ?(Daily Mail, 7 July 2011)

‘Ex-ballerina Elaine McDonald care ruling ‘shameful’’ (BBC News, 6 July 2011)

These are just some of the headlines about the judgment in the case of R (on the application for Elaine McDonald) v Kensington and Chelsea [2011] UKSC 33.

The judgment related to an appeal to the Supreme Court concerning the question of whether or not the Royal Borough of Kensington and Chelsea acted unlawfully in seeking to amend Elaine McDonald’s care package by substituting her night-time carer with the provision of incontinence pads or absorbent sheets. Elaine McDonald was not incontinent, but merely ?had physical difficulty in getting to a commode or other appropriate facilities, which she needed a few times a night.

The Supreme Court, by a majority of four to one, dismissed Elaine McDonald’s appeal and upheld the actions of the local authority. The judgment has been criticised by charities such as Age UK and Disabled People Against Cuts. However, the purpose of this article is not to focus on the details or merits of the case itself. The judges’ role is to apply the law as they interpret it and a decision has been handed down. Now that the courts have ruled on this matter we can try to work out the potential impact: what does the ruling actually mean?

Downward spiral

Clearly, to the press and to the charities involved in the elderly care sector, it appears that if you are physically unable to get to a lavatory at night, but still understand that you need to go, the local authority can provide you with pads rather than a carer to save costs.

Where will the savings’ spiral stop? Initially, the shift by councils was from care home funding packages being limited to providing care assistance at home. Now this change to the provision of incontinence devices. It is also unclear as to what the cost saving will be in real terms, as the risk is that pressure sores (which can develop quickly in the elderly especially with incontinence) then need treatment. These can easily denigrate to hospitalisation and far outstrip the initial cost savings. As a solicitor, I understand that the law has its limitations. Often, in cases such as these, charities campaign to try and bring about a change in the law. However, these campaigns are not always successful. Elderly care, it seems, is not a ‘sexy’ subject. If it were childcare, it would receive far more attention. More and more ‘policy’ decisions, which may bring about cost saving ‘benefits’, will win out over the social ‘benefits’, which a decision in favour of the individual may bring.

I suspect that local authorities around the country have been carrying out this practice and Elaine McDonald is the first person to take it to the courts. So, it could be that this is a decision designed to save a number of local authorities across the country from having to change their practices.

Most local authorities, and some healthcare professionals, will agree that the court’s decision was necessary for policy and budgetary reasons. At the moment, very few people are provided with night-time care by local authorities because of the cost of such care, and local authorities would probably think that, had Elaine McDonald won her case, then they would have had to change the practice taking place across the country regarding such care provision. Their argument would be one of preventing the floodgates from opening.

However, there seems to be a fundamental difference between decisions made on the basis of cost and on the basis of care. I see the ‘floodgates’ argument being made in the opposite direction as well.

Could this case be applied to people who are wheelchair bound? Could it be applied to daytime care as well? Could it be applied in hospitals and nursing homes?

People talk about dignity in dying, but what about dignity in living?

Neverending story

Furthermore, it seems to me that the legislation is flawed. From what I have seen of the legislation quoted in the judgment, there appears to be one vital consideration missing. It does not suggest that the public authority should have regard to the views and needs of the person with disabilities.

As someone who has worked with people with disabilities in the past, it seems obvious to me that the person who has the disability knows better than anyone else how they can manage. If you are ill, you know how you are feeling, and what you are or are not up to doing. If you have a broken leg, you know yourself what movements you can or cannot do and where you need assistance.

It seems quite extraordinary from a human perspective to make an assumption that a local authority knows better than a patient what that patient’s needs are. Even qualified medics may not know better than the patient themselves. Of course, there does need to be some limitations, to prevent some people from making excessive demands on the state, but in my view Elaine McDonald’s demands have not been excessive.

The problem of local authorities and the NHS trying to balance the needs of patients and their books is going to be all the more prevalent in light of the ageing population in the UK and the fact that fewer people will have families who can look after them at home.

Following this through logically, there are only two solutions. The first is that, as is becoming all too common, once again a charity takes on the task of providing something that the state is failing to provide. The second is that NHS and local authority care policies and practices are reviewed in light of the growing need by people requiring care at home or in care homes. Decisions such as that in this case provide further weight to the arguments for the urgent reform of the NHS and the provision of care in the UK.

By way of conclusion, I would like to pose a question that someone else may be able to answer. Could someone in Elaine McDonald’s situation make a claim against the local authority for pressure sores inflicted on them as a result of this change in care provision? Is this the next potential twist in this case? n