The recent decision of the European Court of Human Rights (ECHR) in McDonald v United Kingdom [Application no 4241/12] is the first time the courts have recognised that human rights principles under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) could apply in the context of providing social care services.
In this particular case Ms McDonald, a former ballerina, has disabilities which mean she needs to visit the lavatory several times during the night. Her local authority provided her with assistance from a night carer to get out of bed and use a commode.
When Ms McDonald’s local authority reassessed her in November 2008 it failed to follow the relevant law and guidance on re-assessment and concluded she only required general assistance with toileting which could be provided if she were to wear continence pads at night which could then be changed in the morning. Ms McDonald found this very distressing.
The local authority re-assessed her one year later (this time using the correct law) but came to the same conclusion to withdraw the service of the night carer. Ms McDonald challenged the decision to withdraw this service both on the basis that the original assessment had been carried out unlawfully and that the withdrawal of services constituted a breach of her Article 8 rights in forcing her to soil herself rather than facilitating her using the comode. The case went all the way to the Supreme Court (the highest court in the UK) but all UKcourts concluded that there was no breach of Article 8 in Ms McDonald’s case.
On appeal to the European Court of Human Rights, it was concluded that although Article 8 principles applied in Ms McDonald’s case and as such her rights were breached when the relevant law had not been followed during her first re-assessment, her local authority still had wide discretion over how it spent its own budget. The ultimate withdrawal of services (following re-assessment under the correct procedure) was a justified breach of Article 8 on the grounds that the breach was “necessary for the economic well-being of others”.
Whilst the ECHR’s recognition of Article 8 principles in Ms McDonald’s case is welcomed, Article 8 is not an absolute right and as such local authorities seem to be able to justify the interference with this right in the current context of limited state resources.
It is hoped that ensuring respect for a service user’s dignity and autonomy is a concept at the heart of providing social care services and, in most cases, it is. However, there is understandable concern amongst social care service users that reduced budgets and ongoing reassessments may mean that the services they are assessed as needing today may not be the ones they will continue to receive, which could in turn compromise their dignity.
Unfortunately, the ongoing drive to reduce local authority budgets may mean that this concept is pushed further down the agenda of priorities as local authorities continue to struggle to provide services with reduced budgets and the courts continue to afford them wide discretion.
Natasha Hejabizadeha, Solicitor
Posted on Thursday, 7th August 2014