CASE OF McDONALD v. THE UNITED KINGDOM
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
4. The applicant was born in 1943 and lives in London. 5. The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation. 6. The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided. 7. In March 2007, after the applicant’s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008. 8. A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it’s required during the night”. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.” 9. However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.” 10. A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted: “Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets... Summary of Needs Assessment Ms McDonald needs assistance to use the commode at night. Substantial need.” 11. A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.” This assessment was subsequently described by Lord Dyson as “a concession” granted on a “temporary basis” (see paragraph 53 of the opinion of the Supreme Court). 12. On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant’s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant’s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that: “As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council’s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.” 13. On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention. 14. Pending judicial consideration of the applicant’s complaints, a “holding compromise” was reached: from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant’s partner stayed with her when night-time care wasn’t provided in order to assist her. In September 2011 all night-time care was withdrawn. 15. On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant’s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant’s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant’s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant’s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into. 16. Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that “It remains Social Service’s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald’s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead...” 17. After a visit to the applicant’s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs”. The Review concluded: “I remain of the opinion that Ms McDonald’s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald’s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views. ... ... ... In light of her entrenched position on this, and despite the council’s view that pads and/or sheets are the best way to ensure Ms McDonald’s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.” 18. The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant’s borough were funded. The local authority also argued that the use of pads would ensure the applicant’s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant’s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary. 19. Upon the applicant’s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant’s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant’s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant’s partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant’s need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head. 20. With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant’s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it. 21. Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995. 22. The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995. 23. By a majority, the Supreme Court agreed with the Court of Appeal that the applicant’s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant’s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995. 24. With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that: “There is, of course, a positive obligation under Article 8 to respect a person’s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they 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. They respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent’s proposed care provision was not ‘in accordance with the law’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.” 25. In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal.