The European Court of Human Rights (ECtHR) has decided today (20 May 2014) that the withdrawal of night-time care from Mrs McDonald by the Royal Borough of Kensington and Chelsea breached her human rights for a period of almost a year before proper care planning processes were completed.
Sean Rivers, Senior Solicitor at the Disability Law Service:
“We hope that this judgement will make local authorities like the “Royal Borough of Kensington and Chelsea” start to consider the inherent ‘right to dignity’ when dealing with the most vulnerable people in society”
“It is a tragedy that someone like Elaine McDonald OBE should face the indignity of putting the most personal elements of her care though the British legal system just so that she can be afforded the most basic human rights”
Elaine McDonald OBE is a former prima ballerina of the Royal Scottish Ballet. Her complaint arose from the decision by Kensington and Chelsea to withdraw her night-time care on cost saving grounds. This meant Mrs McDonald was forced to wear incontinence pads although she is not in fact incontinent, but needs assistance to reach the commode.
The judgment in McDonald v UK is the first time that a breach of Article 8 ECHR, the right to respect for private and family life, has been identified by the ECtHR in a case concerning the provision of services or support to a disabled person. The ECtHR held that the withdrawal of night-time care was an interference with Mrs McDonald’s right to respect for private life, and that for the relevant period this interference was ‘not in accordance with the law’ because of the admitted failures of the care planning in her case. Although the Court of Appeal found that care planning had not been carried out properly in that period, a finding upheld by the Supreme Court, none of the domestic courts considered this to be a breach of Article 8 ECHR.
An important aspect of the judgment is the focus on Mrs McDonald’s human dignity, and in particular the extension of the principles established in Pretty v UK, a case on assisted dying, to the arena of the provision of welfare support.
A further key finding by the ECtHR was that the withdrawal of night-time care constituted a negative interference with Mrs McDonald’s Article 8 ECHR rights, which meant she did not need to establish any positive obligation to provide the support she was seeking. This is likely to be very helpful to future challenges to cuts to disabled people’s care packages, not least because any such cut which is implemented without a proper reassessment or care plan review is highly likely to involve a breach of Article 8.
Mrs McDonald has been awarded damages of 1,000 Euros by way of just satisfaction.
Notes to Editor
1. For media enquiries and comment please contact Sean Rivers on 0207 791 9822 / sean@dls.org.uk
2. Ms McDonald was represented by DLS and barristers Stephen Cragg QC and Steve Broach from Doughty Street Chambers: Doughty Street Chambers 54 Doughty Street London WC1N 2LS