Judge 'troubled' by care ruling

A leading judge today said she was "troubled" by the implications of a Supreme Court decision which campaigners say could lead to the elderly being "warehoused" at home "without regard to their quality of life".





Supreme Court justice Lady Hale - a member of the five-strong judges' panel which made the ruling - told of her fears that older people "might be left lying in faeces" because local authorities would be entitled to withdraw help.



Campaigning charity Age UK described the ruling as "shameful" and suggested that it could lead to the infirm being forced to "sleep in their own urine".



Lady Hale and four other Supreme Court justices had been asked to rule on a case in which a 68-year-old stroke victim argued that a council should provide a night-time carer to help her use a commode at her London flat rather than merely supply her with incontinence pads.



Four justices ruled in favour of the Royal London Borough of Kensington and Chelsea, and former ballerina Elaine McDonald's appeal was dismissed by a 4 - 1 majority.



Lady Hale disagreed with her colleagues and said she would have allowed the appeal. In her written analysis she raised concerns about the implications of the ruling.



The Supreme Court, which sits in London and is the UK's highest court, was ruling on the latest round of Ms McDonald's legal fight. The High Court and Court of Appeal had earlier ruled in the council's favour.



Judges heard that Ms McDonald, who was once a star of Scottish Ballet and received the OBE in 1983, was left with reduced mobility after a stroke in September 1999.



She had argued that the care package she received from the Royal Borough of Kensington and Chelsea should include assistance at night to use a commode.



The council said Ms McDonald should use incontinence pads or absorbent sheets - even though she is not incontinent - at night.



Bosses said 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 said she was "appalled" at the thought of being "treated as incontinent" and considered the use of incontinence pads an "intolerable affront to her dignity".









Lady Hale said the case centred on a "really serious question" which could affect anyone - was it lawful for a local authority to provide incontinence pads for a person who was not incontinent but required help using a toilet?



"I am troubled by the implications of the (majority) view," said Lady Hale. "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.



"This is not Ms McDonald's problem at the moment, but her evidence leaves one in no doubt that this is one of her fears.



"Indeed, the majority view would also entitle an authority to withdraw this help during the day. The only constraint would be how frequently (or rather how infrequently) it was deemed necessary to change the pads or sheets, consistently with the avoidance of infection and other hazards such as nappy rash.



"The consequences do not bear thinking about."



Lady Hale said it was "irrational" to characterise Ms McDonald as having a "different need from the one which she in fact has" and said it would not be "regarded as acceptable" to treat a hospital patient or care home resident in such a way.



She added: "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."



Michelle Mitchell, charity director at Age UK, said: "Today's decision is shameful.



"Older people have a fundamental right to dignity and forcing someone to sleep in their own urine and faeces could not be more undignified.



"This judgment opens the door to warehousing older people in their own homes without regard to their quality of life.



"Care should not be just about keeping people safe. It must enable them to live dignified and fulfilled lives."







Four justices - Lord Walker, Lord Brown, Lord Kerr and Lord Dyson - ruled in the council's favour.



"Ms McDonald has chosen not to take up the offer of assistive technology to help monitor her safety, has declined the offer of moving to one of the borough's extra care sheltered housing schemes and she has to date refused to consider incontinence pads as a means to manage risk when she cannot safely get to the commode unaided," said Lord Brown.



"I remain of the opinion that Ms McDonald's need to be kept safe from falling and injuring herself can be met by the provision of (pads or absorbent sheets)."



He added: "I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users in my experience have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve quality of life."



Lord Brown said Lady Hale was an acknowledged expert in social care law but he found her analysis "surprising".



"It seems to me, with great respect to Lady Hale's acknowledged expertise in social care law, particularly surprising to find her saying 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'," he added.



"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 (council's) decision as irrational."



Lord Walker said: "Lady Hale states that the idea that anyone should be obliged to go into a care home in order to be treated with ordinary dignity is extraordinary."



He added: "I can see no evidence that the (council) is not well aware of Ms McDonald's right to have her dignity respected.



"She is a courageous and determined lady and (the council's) Adult Social Care Department have tried hard to find a solution to her problems."



He went on: "In 2008 they offered to put her in touch with the Home Share Scheme, under which someone such as a female student might have given Ms McDonald help at night in return for rent-free accommodation, but she declined because she did not want a stranger living in her house.



"In 2010 they offered her a move to one of (the council's) Extra Care Sheltered Housing schemes, but Miss McDonald did not want to consider this."

Sport
Alexis Sanchez has completed a £35m move to Arsenal, the club have confirmed
sportGunners complete £35m signing of Barcelona forward
Voices
Poor teachers should be fearful of not getting pay rises or losing their job if they fail to perform, Steve Fairclough, headteacher of Abbotsholme School, suggested
voicesChris Sloggett explains why it has become an impossible career path
Sport
world cup 2014
Sport
Ray Whelan was arrested earlier this week
PROMOTED VIDEO
Life and Style
ebookA wonderful selection of salads, starters and mains featuring venison, grouse and other game
Arts and Entertainment
In a minor key: Keira Knightley in the lightweight 'Begin Again'
film
Arts and Entertainment
Celebrated children’s author Allan Ahlberg, best known for Each Peach Pear Plum
books
News
peopleIndian actress known as the 'Grand Old Lady of Bollywood' was 102
News
Wayne’s estate faces a claim for alleged copyright breaches
newsJohn Wayne's heirs duke it out with university over use of the late film star's nickname
Life and Style
It beggars belief: the homeless and hungry are weary, tortured, ghosts of people – with bodies contorted by imperceptible pain
lifeRough sleepers exist in every city. Hear the stories of those whose luck has run out
News
Mick Jagger performing at Glastonbury
people
Life and Style
fashionJ Crew introduces triple zero size to meet the Asia market demand
Sport
Santi Cazorla, Mikel Arteta and Mathieu Flamini of Arsenal launch the new Puma Arsenal kits at the Puma Store on Carnaby Street
sportMassive deal worth £150m over the next five years
Arts and Entertainment
Welsh opera singer Katherine Jenkins
musicHolyrood MPs 'staggered' at lack of Scottish artists performing
Life and Style
beautyBelgian fan lands L'Oreal campaign after being spotted at World Cup
Arts and Entertainment
Currently there is nothing to prevent all-male or all-female couples from competing against mixed sex partners at any of the country’s ballroom dancing events
Potential ban on same-sex partners in ballroom dancing competitions amounts to 'illegal discrimination'
News
business
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating
    and  

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    iJobs Job Widget
    iJobs General

    Business Analyst Consultant (Financial Services)

    £60000 - £75000 per annum: Harrington Starr: Business Analyst Consultant (Fina...

    Systems Administrator - Linux / Unix / Windows / TCP/IP / SAN

    £60000 per annum: Harrington Starr: A leading provider in investment managemen...

    AVS, JVS Openlink Endur Developer

    £600 - £700 per day: Harrington Starr: AVS, JVS Openlink Endur Developer JVS, ...

    E-Commerce Developer

    £45000 - £60000 per annum + competitive: Progressive Recruitment: Exciting opp...

    Day In a Page

    A History of the First World War in 100 Moments: Peace without magnanimity - the summit in a railway siding that ended the fighting

    A History of the First World War in 100 Moments

    Peace without magnanimity - the summit in a railway siding that ended the fighting
    Scottish independence: How the Commonwealth Games could swing the vote

    Scottish independence: How the Commonwealth Games could swing the vote

    In the final part of our series, Chris Green arrives in Glasgow - a host city struggling to keep the politics out of its celebration of sport
    Out in the cold: A writer spends a night on the streets and hears the stories of the homeless

    A writer spends a night on the streets

    Rough sleepers - the homeless, the destitute and the drunk - exist in every city. Will Nicoll meets those whose luck has run out
    Striking new stations, high-speed links and (whisper it) better services - the UK's railways are entering a new golden age

    UK's railways are entering a new golden age

    New stations are opening across the country and our railways appear to be entering an era not seen in Britain since the early 1950s
    Conchita Wurst becomes a 'bride' on the Paris catwalk - and proves there is life after Eurovision

    Conchita becomes a 'bride' on Paris catwalk

    Alexander Fury salutes the Eurovision Song Contest winner's latest triumph
    Pétanque World Championship in Marseilles hit by

    Pétanque 'world cup' hit by death threats

    This year's most acrimonious sporting event took place in France, not Brazil. How did pétanque get so passionate?
    Whelks are healthy, versatile and sustainable - so why did we stop eating them in the UK?

    Why did we stop eating whelks?

    Whelks were the Victorian equivalent of the donor kebab and our stocks are abundant. So why do we now export them all to the Far East?
    10 best women's sunglasses

    In the shade: 10 best women's sunglasses

    From luxury bespoke eyewear to fun festival sunnies, we round up the shades to be seen in this summer
    Germany vs Argentina World Cup 2014: Lionel Messi? Javier Mascherano is key for Argentina...

    World Cup final: Messi? Mascherano is key for Argentina...

    No 10 is always centre of attention but Barça team-mate is just as crucial to finalists’ hopes
    Siobhan-Marie O’Connor: Swimmer knows she needs Glasgow joy on road to Rio

    Siobhan-Marie O’Connor: Swimmer needs Glasgow joy on road to Rio

    18-year-old says this month’s Commonwealth Games are a key staging post in her career before time slips away
    The true Gaza back-story that the Israelis aren’t telling this week

    The true Gaza back-story that the Israelis aren’t telling this week

    A future Palestine state will have no borders and be an enclave within Israel, surrounded on all sides by Israeli-held territory, says Robert Fisk
    A History of the First World War in 100 Moments: The German people demand an end to the fighting

    A History of the First World War in 100 Moments

    The German people demand an end to the fighting
    New play by Oscar Wilde's grandson reveals what the Irish wit said at his trials

    New play reveals what Oscar Wilde said at trials

    For a century, what Wilde actually said at his trials was a mystery. But the recent discovery of shorthand notes changed that. Now his grandson Merlin Holland has turned them into a play
    Can scientists save the world's sea life from

    Can scientists save our sea life?

    By the end of the century, the only living things left in our oceans could be plankton and jellyfish. Alex Renton meets the scientists who are trying to turn the tide
    Richard III, Trafalgar Studios, review: Martin Freeman gives highly intelligent performance

    Richard III review

    Martin Freeman’s psychotic monarch is big on mockery but wanting in malice