R (on the application of McDonald) v Royal Borough of Kensington and Chelsea  UKSC 33 (6 July 2011) Summary
The UK Supreme Court has held that the failure to provide an elderly woman with night-time care assistance to help her use the toilet, and instead requiring she use incontinence pads and special sheets (even though she is not incontinent), does not breach the right to privacy in article 8 of the European Convention on Human Rights.
Elaine McDonald, formerly a prima ballerina with the Scottish Ballet, was disabled as a result of a stroke in 1999 which resulted in severely limited mobility. Part of the package of care services provided for Miss McDonald by the local authority, the Royal Borough of Kensington and Chelsea (RBKC), included a night time carer at her home to prevent falls and provide assistance to use a commode for a neurogenic bladder condition, which necessitated Miss McDonald going to the toilet two to three times a night.
RBKC advised Miss McDonald they were cutting her care services to withdraw night time care, replacing her carer with incontinence pads and special sheets, despite the fact she was not incontinent. This decision was made on the basis of its 'needs assessment' that Ms McDonald’s need to 'urinate safely during the night' could be met through the use of pads and sheets. Once that assessment was carried out, the RBKC were under a statutory duty to meet the assessed needs of Ms McDonald.
Miss McDonald considered the reduction in her care to the use of incontinence pads, despite the fact she was not incontinent, to be an '”intolerable affront to her dignity” and appealed RBKC's decision on the grounds it was in breach of its statutory duty to meet her assessed need, and breached her right to privacy pursuant to article 8 of the European Convention of Human Rights (ECHR).
At first instance the Administrative Court of the High Court granted Miss McDonald leave to apply for judicial review to the Court of Appeal. On appeal, the Court upheld RBKC's decision. Miss McDonald appealed the decision to the UK Supreme Court.
The dispute centred on the scope of the RBKC's needs assessment. Miss McDonald argued that the Royal Borough had assessed her need as being “assistance at night to use a commode”. If this was the assessed need, the failure to provide the carer to assist Ms McDonald to use the commode constituted a breach of RBKC's statutory duty. In response, the RBKC argued it had assessed her need as being “safe urination at night” and accordingly the use of incontinence pads and special sheets was capable of being considered a reasonable measure for this purpose.
By majority, the Supreme Court held the RBKC had acted lawfully in their review of Miss McDonald's night time care needs and was free to alter its care package and decide what Miss McDonald's care needs were.
The majority held that the decision to provide incontinence pads to Miss McDonald, despite the fact that she is not incontinent, did not breach her rights to privacy and dignity under article 8 of the ECHR. The Court acknowledged the positive obligation imposed by article 8 for a state to take steps to provide welfare support. However, the Court noted ECHR jurisprudence balanced the competing needs of the individual with the needs of the community as a whole, and that this margin of appreciation was even wider when limited state resources had to be taken into account. In the circumstances the Court agreed with the reasoning of the Court of Appeal that, in comparison with other article 8 cases where a failure to provide welfare support resulted in “appalling” consequences, there was no breach of Miss McDonald's right to privacy, and even if there was a breach, such a breach would be clearly justified by article 8(2) on the grounds
that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant's needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.
Lady Hale provided the dissenting judgment. In contrast to the other judges, Lady Hale considered the needs of the individual should be assessed against the standards of 'civilised society' and opined it was irrational to characterise Ms McDonald as having a different need from the one she in fact has. She noted that in the UK “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”. Lady Hale considered the decision of the majority would entitle local authorities to withdraw night time care even if a person needed to defecate during the night and it would not, under local law, be acceptable to treat a hospital or nursing home patient in that way.
Relevance to the Victorian Charter
The right to privacy has previously been held by the European Court of Human Rights to include protection of the dignity of the individual in his or her private life and physical and psychological integrity. Here, however, it appears the needs of Miss McDonald were characterised in terms of her physical needs only (ie the need to urinate) and in terms of what was cost-efficient in the supply of welfare support. Not only was this contrary to Lady Hale’s approach which measured Miss McDonald’s needs against the standards of a civilised society, it also arguably mischaracterised Miss McDonald’s needs thereby reducing the significance of the failure to provide welfare support. Accordingly, the characterisation of needs of individuals may be critical under section 13 of the Victorian Charter which protects the right to privacy.
The decision is available at: http://www.bailii.org/uk/cases/UKSC/2011/33.html
Zara Durnan and Susanna Kirpichnikov are Lawyers at Lander & Rogers and are previous secondees to the Human Rights Law Centre