Jul 092011

Published letter by The Scotsman on the Elaine McDonald case

We are writing to express our concern about the implications for Scottish disabled people of the UK Supreme Court decision in the case of Ms Elaine McDonald (the retired Scottish Ballet dancer) v Kensington & Chelsea Council (your report, 7 July).In reaching their decision the judges on the UK Supreme Court have done a grave disservice both to the concept of human rights for disabled people and the reputation of the British judiciary.

The local authority had re-assessed Ms McDonald’s needs in a blatant attempt to save money. After having a stroke, Ms McDonald had acquired an impairment which meant she needed to go to the toilet two or three times each night. She did this through using a commode with the assistance of a personal care assistant paid for by the local authority. The local authority, in re-assessing her, decided that, instead of being assisted to her commode, she would be put in incontinence pads overnight. Ms McDonald, though she had a need to go to the toilet, was not incontinent and asserted that this amounted to cruel and inhumane treatment that robbed her of her dignity and thus breached her rights under article 8 of the European Convention on Human Rights.

No-one should need reminding that their Lord Justices had previously decided that prisoners in Scotland had been robbed of their human rights by being required to do the toilet in front of other prisoners and then slop out. Yet they chose to set aside Ms McDonald’s immense distress and emotional horror at being required to lie in her own faeces and urine for up to ten hours at a time and substituted their own view that being put in incontinence pads preserved her dignity and privacy! If the law believes that, the law is an ass.

As Lady Hale pointed out in her dissenting opinion a local authority could, on the authority of this decision, not only take away night-time support to assist elderly and disabled people in going to the toilet but could also withdraw day support for toilet needs. The “bean counters” in local authorities and within government must be rubbing their hands in glee, for they have been given the green light to reduce services to inhumane levels with no thought given to the human rights of disabled people.

Was Alex Salmond right that lawyers and judges have lost contact with the values we wish to see embodied in our justice system? Do they really hold that disabled people should have fewer human rights than murderers and rapists? Their lordships have brought the Supreme Court into total disrepute.

Bill Scott, Inclusion Scotland;

Jim Elder-Woodward, Independent Living in Scotland Project;

Keith Robertson, Scottish Disability Equality Forum;

Etienne D’Aboville, Glasgow Centre for Inclusive Living;

Tressa Burke, Glasgow Disability Alliance;

Florence Garabedian, Lothian Centre for Inclusive Living

Published by The Scotsman


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