By Bethan Harris, Barrister at Garden Court Chambers
Ms McDonald was formerly the prima ballerina of the Scottish Ballet. In 1999, aged 56, she suffered a stroke, leaving her with severely limited mobility. She also suffers from a small and neurogenic bladder and has to urinate some 2 – 3 times a night.
The local authority’s Needs Assessment of October 2008 described her lll as “assistance to use the commode at night”. However in November 2009 and April 2010 it conducted Care Plan Reviews which referred to her night-time needs in much more general terms, as a need for support at night, which could be met by the provision of incontinence pads or absorbent sheets. By providing for her needs in this way, instead of providing a night-time carer to help her to get to the commode, the local authority could reduce the cost of her care by some £22,000 per annum.
However, Ms McDonald did not wish to use incontinence pads or sheets. She was not incontinent and she regarded the use of incontinence pads or sheets as an affront to her dignity. She wished to have her needs met by the provision of a night-time carer.
On 21 November 2008 the local authority decided to reduce the sum allocated to her care to reflect the decision to meet her night-time needs by the provision of pads. She challenged the decision by judicial review. Permission was refused at first instance but granted by a single Lord Justice and the matter came before the Court of Appeal on 29 April 2010 ( EWCA Civ 1109; (2010) 13 CCLR 664). The local authority now relied on the more recent Care Plan Reviews which defined Ms McDonald’s needs in more general terms than the October 2008 assessment.
The Court of Appeal held that when her need was defined in the “deliberately chosen language” of the October 2008 assessment as a need for “assistance to use the commode at night” it was not open to the local authority to treat the need as a more general need for support at night, and it would therefore be in breach of statutory duty if it failed to provide for assistance to use a commode at night. However, after Ms McDonald’s needs were reassessed and described in more general terms in the Care Plan Reviews, there was no breach. Claims under Article 8 and s 21E Disability Discrimination Act 1995 (“DDA 1995”) were dismissed.
Ms McDonald appealed to the Supreme Court.
The judgment of the Supreme Court
The majority view
- The Care Plan Reviews included a reassessment of Ms McDonald’s needs and, as a result, the local authority did not remain bound to provide care under the terms of the October 2008 Needs Assessment by means of a night-time carer. There could be no objection in domestic law to the night-time needs being identified and met in the manner proposed, namely by way of pads or sheets.
- There was no interference with Article 8 rights. If there had been, it would have been justified on grounds that it was necessary for the economic well-being of the local authority and interests of other service-users, it was a proportionate response to Ms McDonald’s needs because it protected her from injury, protected her privacy and independence and resulted in a substantial costs saving. Whereas reliance had been placed on R (Bernard) v Enfield LBC  EWHC 2282 (Admin), what was striking about that case was the contrast between it and this one. Also, the local authority had afforded respect to private life in the way it went to great lengths to consult Ms McDonald and reach agreement with her and sought to respect her feelings and desires as far as possible.
- The local authority’s decision was not an application of a “practice, policy or procedure” for the purposes of section 21E(1) DDA 1995 and in any event its acts were a “proportionate means of achieving a legitimate aim” within the meaning of section 21D(5) DDA 1995.
- There was no breach of section 49A DDA 1995 (“the general disability equality duty”). Where the person concerned is ex-hypothesi disabled and the public authority is discharging its functions under statute which expressly direct attention to the needs of disabled persons, it may be superfluous to make express reference to section 49A and absurd to infer from an omission to do so a failure to have regard to the general duty under that section: the question was one of substance not form.
(Ss 21 and 49A DDA 1995 have now been replaced by broadly similar provisions in the Equality Act 2010.)
The dissenting opinion of Lady Hale
- Had it been argued that R v Gloucestershire County Council, ex p Barry  AC 584 was wrongly decided, she would have agreed and adopted the minority view in that case: resources should not be taken into account when assessing what a person’s needs were for the purpose of section 2(1) Chronically Sick and Disabled Persons Act 1970.
- There was a clear distinction between what a person’s needs were and what should be done to meet them; there were various ways of meeting needs and it was sensible to choose the most efficient and economical means of meeting them. If resources did not come into the assessment of needs it was easy to state what a person’s needs were: everyone needed to urinate and defecate and people who could control their bladder/bowels may need help getting to a safe place to do so.
- Once the need was accurately defined, the most economical way of meeting it could be chosen. It might well have been open to the local authority to say that the night-time care was too expensive but Ms McDonald’s need could be provided for in Extra Care Housing or through the Homeshare scheme. She could be expected to co-operate with the local authority in choosing the most economically acceptable way of meeting the need that she had.
- However, it was not necessary to hold that Barry was wrongly decided in order to allow the appeal because (agreeing with the argument of the interveners, Age UK) it was irrational in the Wednesbury sense to characterise Ms McDonald as having a need that was different to the one she actually had. The need for help to get to the lavatory or commode was so different to the need of an incontinent person for help with uncontrollable bodily functions that it was irrational to confuse the two and meet one need in a way that was appropriate for the other need.
- It had been argued that it was accepted practice to meet the need of the kind that Ms McDonald had by incontinence pads, but it was not accepted practice to oblige a person to accept this means of meeting their need, and such Department of Health Guidance that there was pointed the other way: that people should not be offered this form of assistance prematurely, in case they became unnecessarily dependant on it.
- Logically the decision of the majority in this case would entitle a local authority to withdraw the help of a carer even though the client needed to defecate during the night and thus might be left lying in faeces until the carers came in the morning. Also, the majority view would entitle the local authority to withdraw this help during the day (paragraph 77).
- “As Lord Lloyd put it in Barry ‘in every case, simple or complex, the need of the individual will be assessed against the standards of civilised society as we know them in the United Kingdom’ (p 598F). 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 more convenient. We are, I still believe, a civilised society.” (paragraph 79)
The majority’s response to Lady Hale
At paragraphs 27, 29 – 33:
- It was pointed out that Ms McDonald had declined the Homeshare scheme (someone to live in her home rent free in return for night-time care) and Extra Care Housing, so these did not provide an alternative solution.
- The majority view did not logically entitle a local authority to withdraw help from a client so that they would be left lying in their faeces day and night, relieved only by periodic changes of pads. This case did not concern bowel trouble as this was not a complaint from which Ms McDonald suffered. Lord Walker deplored Lady Hale’s suggestion that this was the implication of the majority judgment (paragraph 32).
At paragrahs 59-60:
- The unchallenged evidence, that the use of incontinence pads for people who are not clinically incontinent was widespread and accepted practice and that it was general practice as a means of ensuring the safety of people with compromised mobility, could not be brushed aside; it was no answer to say that it was not accepted practice to oblige the client to accept it. The fact that a client may have no option but to accept the accepted practice did not mean that to adopt the accepted practice against the person’s wishes was irrational.
- How a person’s need for community care services is defined is inevitably value- laden, and the majority view confirms a wide ambit for local authorities to define needs, taking into account resources, and circumscribed only by Article 8 and conventional rationality.
- Lady Hale on the other hand took a dignity- based approach to rationality, with reference to standards reflected in current guidance and regulations concerning the standards of care that apply to hospitals and care home settings and generally to the “standards of civilised society in the UK”.
- Her analysis avoids a person’s need for help to use the toilet at night being redefined as a more basic need for safe management of their urination. One can see straightaway how this kind of redefinition of needs can fly in the face of the idea of promoting dignity and self-determination.
- However, it is clear of course that Lady Hale’s approach does not avoid the impact of cost on the ultimate outcome for the person concerned. She contemplated, on her own analysis, that Ms McDonald might have to accept an offer of Extra Care Housing as the cheaper means of meeting her need. Ms McDonald, only in her sixties, understandably, did not want to take up that solution either.
- There may not be much that suggests that Barry could be overturned in a future case, but there will of course still be mileage in dignity and autonomy- based arguments - perhaps where a local authority has taken a less careful approach to assessment and consultation - as part of proportionality, if not rationality, as held by Lady Hale.
- Whatever one’s views about where the balance lies in this particular case, it must be hoped that the alarm the decision has generated will result in greater awareness of the low quality of life people with disabilities who need help to get around in their own homes and to get to the toilet are often expected to put up with. These basic quality of life issues arise in so many of our cases, and the public discussion that has only recently begun about what is acceptable is well overdue.
The views expressed above are those of the author of this note and not necessarily those of the website authors.