Article 8 and night-time care

The ECtHR Chamber has delivered its decision in McDonald v UK. For the reasons given below, the Court has decided that there was no breach of Article 8 ECHR following the reduction in Royal Borough of Kensington and Chelsea’s care services package for Ms McDonald, except for a period from November 2008 to November 2009, when her care needs were not met.

Ms M’s health began to deteriorate seriously following a stroke, which she suffered in 1999 and which left her with restricted mobility. Her mobility was compromised still further when she fell heavily on three occasions, making it difficult for her to access the toilet safely. Needs assessments were completed in February and October 2008,both of which concluded that Ms M had a substantial need to use the commode at night.

A decision was then made to reduce the amount payable in respect of Ms M’s care, which she then challenged by way of judicial review. As a temporary compromise, RBKC agreed to provide 4-5 nights a week care (supplemented by support from Ms M’s partner). The JR application was refused on 5/3/09 and a care plan review dated 4/11/09 determined that incontinence pads were a practical and appropriate solution to Ms M’s night-time care needs, as opposed to the cost of a night-time carer, which would cost in the region of £22,000 p.a.

The Court of Appeal dismissed her appeal and the Supreme Court decided by a majority (Lady Hale dissenting) that, except for the period before November 2009, there was no breach of the Disability Discrimination Act 1995 or Article 8 ECHR. The local authority had gone to lengths to accommodate Ms M’s wishes and desires and even if there had been an interference, this would have been proportionate given the interests of other service users.

Ms M then complained to Strasbourg that there had been a violation of her Art.8 rights. She argued that the State was under a positive duty to provide the night-time care to meet her assessed needs and to safeguard her psychological integrity. Furthermore, Article 19 of the UN Convention on the Rights of Persons with Disabilities required the State, according to Ms M, to provide the personal assistance necessary to enable the disabled person to live with dignity.

The Court held that between 21/11/2008 and 4/11/2009, the Council had been in breach of its statutory duty to provide care in line with its own assessment that Ms M needed to use a commode at night. This meant that the authority had not acted “in accordance with the law” and there had been a violation of Art.8. However, from 4/11/09 onwards, the question was whether the restriction on care services was proportionate.

The Court had regard to the wide margin of appreciation afforded to the State when prescribing health and care services and when allocating scarce resources to meet competing priorities within the community. The Court found that the decision to provide Ms M with incontinence pads was a proportionate response to safeguard Ms M from injury and harm and to enable her to live with some independence. 1000 Euros were awarded in respect of the November 2008 to November 2009 period.

 Comment

This case emphasises the great distance that exists between an international court and a local authority entrusted with the task of calculating budgets and devising tailored care plans. Hence, the State’s wide margin of appreciation is a key component of the Court’s decision.

At para.54 of the Court’s judgement, reference is made to Osman v UK. This case involved the failure of the police authorities to apprehend a teacher from attacking a pupil with whom he had become obsessed, and from murdering his father. There was no violation of either Art.2 or Art.8 because the incident could not reasonably have been foreseen or prevented, regard being given to operational decisions and prioritisation of resources. However, Osman was distinguished in a more recent Art.2 case: Kayak v Turkey, which concerned a fatal knife attack on a child on school premises. The issue of prioritisation of resources was likewise noted but the Chamber held that school authorities had a fundamental responsibility to protect school children as a vulnerable group from all forms of harm and it found an Art.2 violation.

Disabled people are a vulnerable group too and while it might not have made much difference to the Court’s emphasis on subsidiarity and the national authority’s unique ability to assess local conditions, it is regrettable that the Court did not take the opportunity to develop the Court’s jurisprudence on the application of financial resources to vulnerable individuals. There is no real treatment of Ms M’s arguments on her status as a disabled person (as noted above) and it seems that the Court had recourse first and foremost to the State’s margin of appreciation. As Judge Spielmann stated in his recent UCL lecture on the margin of appreciation: “The margin of appreciation is neither a gift nor a concession, therefore, but instead an incentive to national courts to conduct the requisite Convention review.”

 

 

 

Posted in Community care, Housing law - All.

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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