Ballerina ruling threatens care of the elderly

A leading judge has said she is "troubled" by the implications of a Supreme Court decision which could lead to vulnerable people being "warehoused" at home "without regard to their quality of life".

The Supreme Court justice Lady Hale was one of five judges ruling on the case of the former ballerina Elaine McDonald who argued that her local authority should continue providing a night-time carer to help her use a commode. Lady Hale disagreed with her colleagues, who ruled against Ms McDonald, and in her written analysis she raised concerns about the implications of the ruling. She said she feared that older people "might be left lying in faeces" because local authorities would be entitled to withdraw their help.

The case was considered an important legal milestone for people who need social care to stay at home, as cash-strapped local authorities reduce services and change their care packages. The campaigning charity Age UK described the ruling as "shameful".

Ms McDonald, 68, a former a star of Scottish Ballet who received an OBE in 1983, was left with reduced mobility after a stroke in September 1999. She was fighting against Kensington and Chelsea's decision to replace her night helper with incontinence pads – even though she is not incontinent.

The local authority argued that incontinence pads would reduce the risk of Ms McDonald being hurt using a commode, provide independence and privacy and cut the cost of her care by £22,000 a year.

Ms McDonald's appeal, in which she describe the use of the pads as an "intolerable affront to her dignity", was dismissed after four out of five justices ruled in favour of the London borough.

Lady Hale said the case centred on a "really serious question". "Logically, the decision 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," she said.

"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," she said. "We are, I still believe, a civilised society. I would have allowed this appeal." She added: "The consequences do not bear thinking about."

Lord Brown, one of four judges who ruled in the council's favour, said Lady Hale was an acknowledged expert in social care law but added that he found her analysis "surprising".

Michelle Mitchell, charity director at Age UK, said: "Today's decision is shameful. Care should not be just about keeping people safe. It must enable them to live dignified and fulfilled lives."

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