McDonald v UK (2018) viewed in the context of austerity.
Elaine McDonald, a resident of Royal Borough of Kensington and Chelsea decided to take her case of the indignity of care she experienced as a result of LA’s changes in her care package up to the European Court of Human Rights. McDonald had a stroke, leaving her with severely limited mobility. She needed assistance with all personal care including going to the toilet between 2-3 times during the night. . However in (YEAR), Kensington and Chelsea social services wanted to withdraw personal assistance during the night, proposing that McDonald could use incontinence pads as alternative way of meeting her toileting needs. McDonald argued that what Kensington and Chelsea Local Authority were proposing was a violation of her European Convention of Human Rights Article 8 and United Nation Convention for Persons with Disabilities Article 3 and 19 rights, the right to dignity and autonomy supported by personal assistants.
The ECtHR examined whether Mc Donald’s claim that the UK Government’s Care Act 2014 implementation and relevant court law was breaching her Article 8 human rights. There are two parts to Article 8 test. The first part sets out that all have a right to private and family life including personal dignity. The second part of the test states there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.
The ECtHR upheld that McDonald’s compliant of using incontinence pads to meet her toileting needs would have violated her dignity. However, McDonald failed on the second part of the test, that being whether the Local Authority’s decision to alter her care package was done in accordance in law and necessary in a democratic society. The judges dismissed the case in substance because they found that the law was followed. LAs followed the Care Act law including care assessment/review process of McDonald’s personal care needs. LAs were able to consider cheaper alternatives to meeting her care needs. Whilst incontinence pads did not promote McDonald’s dignity, nevertheless it met her toileting needs. Provision of personal assistance resources given to any specific individual person must be weighed up against others requiring personal assistance when there is a finite budget. What is considered as a need for a service cannot be done in a vacuum; consideration has to be given to the severity and level of care service required for any particular individual which needs to be balanced against others with care needs. Fair Access to Care Services eligibility criteria is a good example where local authorities are using a due process to allocate resources from a finite budget for disabled people who are in most need of them. Disabled people with severe or critical needs are much more likely than those with moderate or low level support needs and this would be considered as lawful.
The court were mindful to have regard to the wide margin of appreciation afforded to States in issues of general policy, including social, economic and health-care policies when considering any claimants complaints around an individual’s breach of Article 8 § 2 rights. The margin is particularly wide when the issues involve an assessment of priorities in the context of the allocation of limited State resources. The courts went on to say that national authorities were better placed than an international court in assessing the needs and making decisions about the provision of care for their inhabitants.
This case raises a number of issues.
The judges decided that they had no power to interfere with the priorities that individual state Governments set. The Government can choose to give more or less priority for different groups of people. It is perfectly okay for the UK to prioritise funding of tax cuts for the millionaires over the resourcing of services and support that promote disabled people’s rights to independent living.
How does the court decide whether a sufficient balancing act has taken place in weighing up the needs of different sections of our community for publically funded services? It is arguably that the court cannot undertake this exercise, and therefore leaves it to the state and public authorities to do this based on trust. The balancing act in this case was restricted to the allocation of resources for disabled care service users from the social services budgets. The judges did not deliberate whether there was fair consideration between various groups of people using different services funded from none social care services provided by Local Authorities. For instance was there a fair balance of consideration given to social care and library service users during council budgeting setting process. This raises the issue on what is considered as fair consideration, is it based on need, diversity and number of service users, the cost unit for each service used and alike.
Re-enforces low priority
The courts are mindful that service funding is seen within the context of the service budget. If Government or public authority decided to withdraw or substantially cut the budget for supporting and promoting disabled peoples independent living then as long as the law has been followed and it’s done in balancing the nation’s finances then decision is justified. So the UK can justify breaching disabled people’s human rights by choosing to adopt austerity financial measures.
Institutionalised and Non-institutionalised services
What are the courts role in challenging UK state policy in the funding of institutionalised over community-based services? A very prudent question when UK state is funding hundreds of thousands of pounds in keeping disabled individuals with learning difficulties and autism in ATUs whilst there is insufficient funding available for them to live independently within the community. Clearly, there could be violation of disabled people’s human rights as an ATU’s responsible clinician cannot discharge patient off section without considering suitability of aftercare provision. If Government decided that priority is given to hospital care over community care after weighing up the needs of different groups of disabled people then what is the role of the European Court of Human Rights in promoting disabled people’s choice and control over their lives?