Jul 062011

By Stuart Bracking

Disabled People Against Cuts believes the Supreme Court’s majority decision to reject Elaine McDonald’s appeal to keep her overnight personal assistants to help her with regular personal care tasks is a major setback for disabled people of all ages and their families.

This judgment will give a green light to local authorities across England and Wales to reassess care packages to find the cheapest way to meet needs, and allow them to impose solutions that may be against the wishes of disabled people.

By rejecting legal arguments concerning the human rights and disability discrimination acts that favour Elaine’s appeal, the Supreme Court will shatter disabled people’s confidence in the ability of the legal system to protect their rights.

In part of the judgment, Elaine is characterised as being difficult and rigid in her approach to alternatives presented by the Royal Borough of Kensington and Chelsea such as a live-in volunteer or sheltered accommodation.

The irony is that if an application to the Independent Living Fund (ILF) in 2007 had succeeded Elaine would have been given the resources to fund the overnight care she needs. This case would never have come to court if Elaine’s council had done its job properly.

While the Supreme Court gives a lot of weight to statements presented by her council that other disabled people who are not incontinent accept the use of pads or sheets to avoid the need for overnight care, they do not question the voracity of some of the council’s evidence, particularly where inaccurate information has been presented.

In the court of appeal judgment, it states in paragraph 13: ‘As it emerged, however, the ILF application failed, inter alia because Ms McDonald, on turning 65, ceased to be eligible for funding from it.’ Yet an independent review of the Independent Living Fund published in January 2007 by the respected academics Melanie Henwood and Bob Hudson confirms on page 5 that applicants had to ‘Be at least 16 years of age and under 66’. In fact at the time when Elaine left hospital in March 2007 when an application to the ILF had a strict deadline of three months she was 63, about to turn 64.

It saddens us that English and Welsh law that is so detrimental to the interests of disabled people is developed by expert legal minds that do not have a full grasp of the detailed issues before them.


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  7 Responses to “Supreme court's decision on Elaine McDonald case is a major setback”

  1. A million thanks for posting this infortaimon.

  2. This is proof positive that Disabled People are now officially SECOND CLASS CITIZENS!!!!!!!!!!!!!!!!!!!!!!

  3. Does anybody know of a possible Appeal route for this dreadful decision, other than via the European Court of Human Rights, or, the European Court of Justice (As it’s a legal determination case, especially, if found to be unsafe, or, erroneous)? I’m also considering asking legal beagles about the possibility of a mirror case, via the Scottish Courts system, as there arguments presently, in the Scottish Parliament, as to whether Scot’s Law recognises the Supreme Court …. and id so, of the Supreme Court’s (supposed) superiority to the Court of Sessions/Scottish Court of Appeal.

    Surely, Technical and medical issues should have been considered? I have read that, Ms McDonald has neurogenic … and also, a smaller than average bladder, but, is not incontinent. This suggests to me, that, she’d have to urinate more frequently and more erratically, than average?

    I really have to ask if one incontinence pad, in situ for 12 hours, can cope with fairly large quantities of bodily secretions, by the average human over a 12 hour period? I know for fact, it can’t! I’d argue that, this makes this particular decision ‘unsafe’ and ‘erroneous in Law’, because, it’s likely, not all factors were considered or presented to the decision makers. Nor does it seem that, MS McDonald’s ‘likely’ future medical requirements were considered. Lying in her own piss and crap, for up to 12 hours per night/day, is likely to cause the onset of adult rash (at best), broken skin, and potentially, Urinary Tract and/or bowel infections. Which may, ironically, cause her to be admitted to hospital, where her continence needs would definitely HAVE to be met, if recorded in her care plan!

  4. Please make it known that Personal Care packages (Self-Directed Care) should be available so that you can spend your allotted money how best you think fit. So Elaine could pay for night care

  5. As a parent of a teenager with a physical disability I feel that the court ruling has flashed a green light for local authorities to penalise people with high care needs even further.
    Authorities and their administrators are serving to erode the dignity and self respect of not only elderly people, but also of young kids whom are working hard to be continent and in control of their independence.There will possibly be families whom now have to advocate and challenge future assessments containing recommendations for incontinence pads rather than night time awakening care.
    A system that is generating, lower self expectations ,lower public standards , higher public prejudices via social ignorance.
    To top it all -higher incontinence but lower public spending and higher tax evasion by the banks and interglobal multi-national proffiteers.

  6. I heard an item on BBC R4’s ‘You and Yours’ programme today and felt so outraged that I had to email them about it. This is what I said:

    “There is a clear distinction between being incontinent and needing assistance reaching the loo and using it under your own direction. ‘Incontinence’ means constant leakage in which case incontinence pads are the obvious solution. Elaine McDonald is not incontinent, she has a mobility problem and does not need incontinence pads.

    This is not a medical care decision, it’s clearly a financial decision. It takes no heed of the care, comfort and well-being of the individual.

    Foisting dictats like this upon people who otherwise have no need to be lying in their own urine is a disgrace to our so-called progressive and caring society. What caring society? Isn’t this the sort of thing we got so up in arms about when it happened to people in care homes in Romania? I wish her well with her appeal to the Court of Human Rights. It could be a landmark case; will we be civilised, or barbaric?

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