Judge 'troubled' by care ruling
Wednesday 06 July 2011
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."
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