Because of bladder problems, Elaine McDonald needs to go to the toilet several times during the night; and because of mobility problems, she can’t get there safely on her own. Kensington & Chelsea have decided that her needs can be met by the use of incontinence pads, which is about £22,000 a year cheaper than what she wants: an overnight carer to help her get to the toilet. By a majority of four to one, the Supreme Court has upheld the lawfulness of Kensington & Chelsea’s decision. Not only is this an emotive issue – the judgment is fascinating because of the harsh criticism aimed by some of the majority Justices against their dissenting member, Lady Hale. More of that later.
The first, and to my mind rather technical issue, was whether, after Kensington & Chelsea had in 2008 assessed the claimant as needing
assistance to use the commode at night
it had properly changed that assessment in subsequent reviews, which spoke in more general terms of her “nighttime toileting needs”. By three to one, the Justices ruled that the council had changed its assessment. The dissent came from Lord Kerr, but even he thought the council was entitled to change its mind, so that a failure to do so by the route of another formal needs assessment was merely technical. I don’t think Lady Hale made any decision on the point.
Second, it was argued that the decision to provide incontinence pads breached Ms. McDonald’s article 8 Convention right to respect for private life. Again, the majority (this time of four) ruled in favour of the council. As Lord Brown explained (paragraph 19):
it cannot plausibly be argued that such respect was not afforded here … the respondents went to great lengths … to consult the appellant … 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 … 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) … 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 …
The majority also rejected two arguments based on the Disability Discrimination Act 1995, both of which Lord Brown described as “hopeless” (paras. 22 and 24). Lords Walker, Kerr and Dyson agreed.
Lady Hale did not address those four issues at all: instead she looked purely at the rationality of the council’s decision, a point raised by interveners, AgeUK. The core of her reasoning is at paragraphs 75 and 76:
It seems to me that the need for help to get to the lavatory or commode is so different from the need for protection from uncontrollable bodily functions that it is irrational to confuse the two, and meet the one need in the way that is appropriate to the other. Of course, there may well be people who are persuaded that this is in fact a more convenient, comfortable and safer way of solving the problem; then it is no longer irrational to meet their need in this way. The authority suggest that this is “accepted practice” but they cannot point to evidence that it is accepted practice in effect to oblige the client to accept it … the fact that they have been trying so hard for so long to persuade her to accept their point of view does not mean that it is a rational view or one which she is bound to accept. For the reasons already given, I do not think that it is.
But at paragraph 77 she went on to outline her further concerns,
Furthermore, I am troubled by the implications of the contrary view. 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. 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.
and she concluded her judgment, at paragraph 79, by strongly implying that the majority’s decision is “uncivilised”:
In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so, unless they themselves find this the more convenient course. We are, I still believe, a civilised society. I would have allowed this appeal.
Sympathy with Ms. McDonald will lead many to agree with her. I’ve accused Lady Hale in the past of wearing her liberal heart on her sleeve, and I think this is another example. On this occasion, though, the language she used seems to have irritated some of the majority into responding with their own trenchant criticism of her approach. At paragraph 32 for instance Lord Walker says
I totally disagree with, and I deplore, Lady Hale’s suggestion that the decision of the majority would logically entitle a local authority to withdraw help from a client so that she might be left lying in her faeces day and night, relieved only by periodic changes of absorbent pads or sheets.
While at paragraph 27, Lord Brown says
it seems to me, with great respect to Lady Hale’s acknowledged expertise in social care law, particularly surprising to find her saying (in para 77) that logically, on the majority’s view, the local authority could properly withdraw care “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” or, indeed, “withdraw this help during the day.” 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.
He goes on, devastatingly in my view, to point out that Lady Hale appeared entirely to have missed an important background fact:
As to the cost, Lady Hale says (at para 74) that “it might well have been open to the local authority . . . to provide her with the sort of night time care that she was asking for . . . in one of the Extra Care Sheltered Housing Schemes in the borough.” As, however, may be seen from the “Conclusion” to the borough’s 2010 review (quoted in para 11 above), the appellant “has declined the offer of moving to one of the borough’s extra care sheltered housing schemes.” In other words, the appellant specifically refused that very solution which Lady Hale mentions.
I agree that this undermines Lady Hale’s reasoning considerably.
Many people will be instinctively attracted to Lady Hale’s approach in spite of this, as I’ve said, simply because they, like me and like the majority, sympathise with Ms McDonald. I wouldn’t want to be in her situation. But I can’t agree with Lady Hale.
What concerns me most about cases like this one is the effect of judicial decisions on democracy at the local level. Decisions about what should be done for Ms. McDonald cannot be seen in isolation: resources are limited, however much we might wish it otherwise. To see care provision in terms of absolute entitlement in the way I think Lady Hale effectively does (i.e. the claimant’s need can be characterised as needing help to get to the toilet, and that’s what she wants, therefore she has an absolute legal right to it regardless of cost) seems to me to wish away that reality.
Decisions about the allocation of resources must be for the council, and councillors must be politically accountable for what they do. If those who live in Kensington & Chelsea don’t like what’s been done to Ms. McDonald, they must decide what else they want to do: transfer money from elsewhere within the social services budget, take money from some other budget (such as library or environmental services), cut council staff wages (including perhaps those of the carers they’d like to look after Ms. McDonald) or increase the council tax bill or some other charge, for instance for parking. Or, if they think local government budgets aren’t big enough, they should complain to Eric Pickles.
Judges can if they wish heroically order a particular form of care for people in real need, leaving local authorities and social workers with the awkward, unglamorous job of deciding who else to say no to instead. But if they do, local government and social work soon become merely administrative exercises in implementing the not necessarily very consistent diktats of Whitehall and the courts. If we want any hope of reviving local government, and if we want professional experts rather than judges to make difficult individual decisions in complex areas, we should certainly not go that way.
Interesting post. I tend to agree with the broad point: that resource allocation decisions are decisions best left to political not judicial accountability and, as unpalatable as the outcome may be, like you I don’t see the Council’s decision as irrational. But that seems to me it also does mean, though, that a local authority “could logically withdraw help from a client so that she might be left lying in her faeces day and night, relieved only by periodic changes of absorbent pads or sheets,” if others, with more serious needs, took priority? In other words, one of the points on which Lady Hale was forcefully criticised . Indeed, I’d venture the view that to suggest what she said is deplorable is to stray beyond the boundaries of respectful debate.
Sadly I’m inclined to agree that elements of Lady Hale’s argument appear not to have taken on board some of the evidence about Ms McDonald’s unwillingness to consider alternatives. However there are two important points about this ruling. Whilst it may appear a mere ‘technicality’ that the review counted as a new needs assessment, this considerably dilutes existing community care law and guidance that sets out in considerable detail what constitutes a lawful and sufficiently detailed assessment. Furthermore, under community care law once an eligible need is identified it ‘must’ be met regardless of resources (see Tucker v London Borough of Sutton for a striking example of this), so in that sense it is an ‘absolute entitlement’. The local authority are entitled to take into account resources at the point of setting eligibility criteria (see Barry v Gloucestershire CC), and also in how the need is met. The difference this judgment makes, is to effectively ‘loosen’ how far resources can be taken into account in identifying the need itself.
The Article 8 issue is a tricky one. I had never really thought it likely they could win on this, although I had expected the Supreme Court to find Article 8 was engaged – but that it was a proportionate interference. That would mean one could say – as you do – that the local authority has leeway to take resources into account in how needs are met. The problem with finding that Article 8 is not engaged at all, is that resources don’t come into it. A person can be left lying in their own urine regardless of resources. It’s one thing when it would cost £22k to support someone to the bathroom overnight in their own home – but what about in care homes and hospitals where it doesn’t cost much extra money, but might just be inconvenient for staff? There’s nothing in the ruling that suggests it would be unlawful for a person in hospital after surgery, for instance, to be left lying in their own urine for long stretches of time because nursing staff chose not to support them to the bathroom – regardless of resources. Everyone who works in social care knows that situations like Ms McDonalds are far from unusual for someone receiving care in their own home, however undesirable. However, the concern is that by not requiring these situations to be ‘proportionate’ to resources, the ruling may legitimise what are widely acknowledged to be poor care practices in other areas than home care.
A small point- I’ve only skimmed the judgment, but at 18 Lord Brown cites the ruling in Bernard where article 3 is mentioned. Presumably the judgment only means that art. 8 wouldn’t protect an individual from being left lying in their own faeces for long stretches- I imagine that art. 3 would come into play were that the case.
What a brutal and cynical society we now inhabit. All our decisions, our very existence, is to be reduced to a cost benefit analysis? You must die or suffer because you “cost” too much? What is misunderstood is that the funds are not taken from others who are in similar situation when it is taken from libraries or grass-cutting. It is taken from the strong and the able so that the weak and the vulnerable may live with the remaining shreds of dignity that their weakness and vulnerability already deny them on a daily basis.
Let us look closely at the “cost benefit” analysis that we use to justify our decisions. It is not a cost benefit analysis that is the issue; it is the society that chooses to employ it to create the society we have. The cost benefit analysis is a crude, but very subtle way, of demonstrating that selfishness is what we want. We do not want more taxes, where the strong help the weak, instead we want to retain our taxes for our purposes so that the weak and vulnerable are left to their own miserable devices. Yet, we want to comfort ourselves in the notion that we have a NHS and we already “do so much”. Yet, the choice we have made is that we do not privilege the weak and the vulnerable, the powerful and the protected make the decisions and we gloss it over as a “cost benefit” analysis creating the necessity to justify their decisions.
We could raise taxes; we could choose to spend differently on different programmes. These are programmes that reflect the society we want to have and for the various reasons we express politically. The cost benefit decision is not an economic or financial decision; it is a political decision. It is a political decision by the community to have the choice framed in this way.
As for privileging the individual at the expense of the community, that is a nonsense. The issue is whether the individual has a right within the context that Lady Hale has explained to have her views considered. This is not about an absolute entitlement. Instead, it is about the rationality of the decision by the council that is being challenged. Is their reliance on a cost benefit justification rational? We cannot dress this up in any other way to say that she has to be coerced to accept the decision, as she has not been convinced that she must lie in her own faeces and urine. We may dress this up to say that we tried to persuade her and she refused. However, we have no knowledge of the alternative that she was given. We do not know why she rejected the offer of an alternative accommodation. I am sure that many do not want to revisit the issue and see if the alternative accommodation was sufficient. Perhaps it is not.
In the end, the lady will have to suffer what she must because that is what we, society, want. We do not want to pay more taxes so services like this are not available. Perhaps instead of hiding behind “cost benefit analysis” we ought to be clear about the reality, the strong do as they will and the weak do as they must. “It is too expensive to have a child protection service” “It is too expensive to have a police force”. “It is too expensive to have …… human dignity.”
The applicant has had her justice and it has revealed an ugliness that haunts our society.
[…] comment about this case here by Lawrence Serewicz sums things up by […]