McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea  EWCA Civ 1109 (13 October 2010)
The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use a commode during the night, and instead requiring that the individual use incontinence pads and special sheets (in circumstances where the individual was not incontinent), did not breach the right to privacy in art 8 of the European Convention on Human Rights.
The claimant, Ms McDonald, suffered a stroke in 1999 which left her with numerous physical disabilities. As a result of her disabilities, Ms McDonald suffered from series of falls, three of which resulted in hospitalisation.
Of direct relevance to the proceedings, was the fact that Ms McDonald suffers from a ‘small and neurogenic bladder’, which means that she needs to urinate approximately three times during the night. Ms McDonald would use the assistance of a carer in order to use a commode during the night. She would be unable to use the commode without the assistance of a carer, due to her risk of falling and sustaining further injuries if she were to do so.
Ms McDonald’s carers are provided by the Royal Borough of Kensington and Chelsea. The proceedings arose from the Royal Borough’s decision to withdraw funding for a night carer on the basis of its assessment that Ms McDonald’s needs could be met through the use of incontinence pads and special sheeting. Ms McDonald refused to use these methods on the basis that she was not incontinent, and would find it an affront to her dignity to do so. The withdrawal of night-carer funding reduced Ms McDonald’s weekly care cost from £703 to £450.
The Royal Borough had a responsibility for carrying out a ‘needs assessment’ for Ms McDonald. Once that needs assessment was carried out, the Royal Borough were under a statutory duty to meet the assessed needs of Ms McDonald.
The parties were in dispute about the scope of the Royal Borough’s needs assessment. Counsel for Ms McDonald argued that the Royal Borough had assessed her need as being ‘assistance at night to use a commode’. The Royal Borough argued that it had assessed her need as being ‘safe urination at night’. If the assessed need had been the former, a failure to provide the carer to assist Ms McDonald to use the commode would have constituted a breach of the statutory duty; had the assessed need been the latter, the use of incontinence pads and special sheets was capable of being considered a reasonable measure for this purpose.
Counsel for Ms McDonald argued that the Royal Borough was in breach of their statutory duty to meet Ms McDonald’s assessed need, and that they had breached art 8 of the ECHR.
The Court found that between the dates 21 November 2008 and 4 November 2009, Ms McDonald’s needs were assessed as requiring the use of a commode. The failure to provide a carer to ensure safe use of the commode was breach of the statutory duty. However, this breach was mitigated by keeping the caring arrangements in place (with the cooperation of Ms McDonald’s partner) awaiting the outcome of the proceedings before the Court.
From 4 November 2009, Ms McDonald’s needs had been reassessed by the Royal Borough as requiring ‘safe urination at night’ (it is noteworthy that Ms McDonald’s circumstances had not changed, and the re-assessment of her needs resulted from a ‘Care Plan Review’ that was carried out following the initial proceedings and pending the appeal). The Court of Appeal held that the withdrawal of night carer assistance did not constitute a failure to meet the assessed need of Ms McDonald in the circumstances.
The Court held that, between the dates 21 November 2008 and 4 November 2009, there had been no breach of Ms McDonald’s art 8 right to respect for privacy. The Court applied the following principles in determining whether art 8 had been breached (as set out in the decision of Anufrijeva v Southwark London Borough Council):
in considering whether the threshold of article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for article 8 rights, the more glaring the deficiency in the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.
Lord Justice Rix (with whom Lord Justice Wilson and Sir David Keene agreed) set out his reasons as follows:
I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald's defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget. One only has to read the range of documents in the files in court concerned with the Royal Borough's dealing with Ms McDonald and her problems to see that there was at all times a genuine attempt to assist her and, even if that was not apparent to Ms McDonald, to do so in a way which respected as far as possible her personal feelings and desires, and at the same time took into objective account her safety, independence, autonomy and personal integrity and the Royal Borough's responsibilities for all its clients.
Relevance to the Victorian Charter
This case may be of relevance to s 13 of the Charter, which sets out the right to privacy, family and the home. If followed or taken into account by Victorian adjudicators, this decision could potentially weaken the protection afforded by s 13 in particular cases.
The European Court of Human Rights has previously held that art 8 includes the protection of the dignity of the individual in his or her private life, covering both the physical and psychological integrity of a person. Counsel for Ms McDonald relied on such authorities and the Court of Appeal did not refute the applicability of those principles; rather, the Court appeared to implicitly accept them by using the language of ‘dignity’ when considering whether there had been a breach of art 8.
The Court described Ms McDonald’s night time urination concerns as ‘distressing’ and noted that the court shared the ‘greatest sympathy’ for her ‘misfortunes’ and ‘understood’ her ‘dislike’ of the use of incontinence pads and special sheets in circumstances where she was not incontinent.
From the reasoning extracted above (and the analysis of evidence throughout the judgment), it appears that the Court accepted that Ms McDonald felt very strongly against, and distressed by, the proposed use of pads and special sheets in circumstances where she was not incontinent. Yet, because the Royal Borough had Ms McDonald’s privacy and dignity in mind when making its assessment of her care needs, this factor outweighed the actual effect the Royal Borough’s assessment had on Ms McDonald’s sense of privacy and dignity.
The Court recognised that the Royal Borough’s assessment was legitimately made in the context of its limited resources and wide client base; however, because the Court found that there had been no breach of art 8, it was unnecessary for the Court to consider whether the assessment could be ‘justified’. There was thus no analysis by the Court of the actual budgetary constraints on the Royal Borough and whether the provision of night time care would be beyond its budgetary capability.
For s 13 of the Victorian Charter, this decision is a problematic example of how adjudicators can place greater weight on process, rather than outcome, in determining whether a decision or act of a public authority breaches an individual’s right to privacy.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1109.html.
Jacqui Bell is a Policy Officer with the Federation of Community Legal Centres (Vic)