2014 05 Adult Care

Sunday 1 June 2014

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McDonald v United Kingdom (Application no. 4241/12, 20 May 2014): a decision to provide a person with incontinence pads rather than, as she wished, and as had been provided earlier, help from a carer to get to the lavatory or a commode was capable of having an impact on her enjoyment of her right to respect for private life and therefore fell within the scope of Article 8 ECHR. It was unnecessary to decide whether Article 8 imposed a positive obligation on States to put in place community care services, such as the services of a night-time carer, provided earlier: because the local authority had provided that service, and had then withdrawn it, that amounted to an interference with the applicant’s right to respect for her private life. Initially, that interference had been in breach of Article 8 because it had not been ‘in accordance with the law’ (in this case, national law), in that the applicant’s community care assessment had continued to entitle her to a night-time carer. However, the local authority’s subsequent and ongoing refusal to provide a night-time carer, pursuant to its fresh assessment that an offer of incontinence pads would meet the applicant’s needs adequately, having regard to its constrained resources, was proportionate and justified, having regard to the margin of appreciation in such cases afforded to the local authority and courts of the United Kingdom, and did not involve any breach of Article 8. Click here for the judgment.

R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712 (Moses and Kitchin LJJ, Bean J): Q had been a long-term resident and mental patient in the area of H. He had been compulsorily admitted to a hospital in H’s area, then conditionally discharged on condition that he reside at an address in H’s area, then compulsorily admitted once again to a hospital in H’s area and then once again conditionally discharged to H’s area. In contrast to the changed position that would have applied, had Q been unconditionally discharged on the 1st occasion, the ‘chain of causation’ remained unbroken and Q remained a patient who had been ‘resident’ in W’s area before his detention, for the purposes of the duty to provide after-care services under section 117 of the Mental Health Act 1983. (NB the position will change on the coming into force of provisions of the Care Act 2014, which will substantially amend the responsibility provisions in section 117). Click here for the judgment.

R (P) Chief Constable of Thames Valley [2014] EWHC Admin (Foskett J): it had been incompatible with Article 8 ECHR to include on P’s enhanced CRB certificate information about an allegation of sexual assault, when that effectively ended P’s prospects of securing work in the caring community, but where the allegation had an arguably unreliable basis. Click here for the transcript.

R (JF) v NHS Sheffield CCG [2014] EWHC 1345 Admin (Stuart-Smith J): it had not been unlawful, in breach of section 3 of the National Health Service Act 2006, for the CCG to decide that a patient who received 24-hour 1:1 care in her home (because of severe respiratory difficulties) did not always need such supervision in a hospital setting, rather than the usual form of monitoring that took place on the ward. Although it was subsequently accepted, following further assessment, that the patient did need 24-hour 1:1 supervision when in hospital, it did not follow that the earlier assessment had been unlawful. Click here for the judgment.

R (LH) v Shropshire Council [2014] EWCA Civ 404 (Longmore, McFarlane, Lewison LJJ): it was a matter of law for the Court to decide whether consultation had been adequate/fair. In this case, the Council had consulted about reconfiguring its day services, which would necessarily entail that some day centres closed. However, fairness required the Council also to consult services users and their relatives, and staff, of any individual day centre it was minded to close. The consultation had not been adequate/fair in that regard but since the day centres in question had now closed, no relief would be granted. Click here for the judgment.

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