McDonald case - Council statement

On Wednesday 6 July 2011 the Supreme Court upheld as lawful the Council’s provision of night-time community care services for Ms Elaine McDonald, a former prima ballerina of the Scottish Ballet.

Ms McDonald suffered an incapacitating stroke nearly 12 years ago leaving her with limited mobility as a result of which she suffered a number of falls necessitating hospitalisation. She was also left with a neurogenic bladder which means she has to urinate two to three times a night.

Ms McDonald challenged the Council’s decision to provide her, at night, with incontinence pads instead of a carer. She contended that the Council had failed to carry out a lawful assessment of her night-time needs, and that, as she was not clinically incontinent, the provision of pads was an affront to her dignity. She felt the Council’s actions had infringed her human rights and unlawfully discriminated against her as a disabled person.

The Supreme Court dismissed her case. Lord Brown said the Council “...could hardly have gone further in compliance with the Secretary of State’s Directions in their efforts to consult the appellant and if possible agree with her the services they were considering providing to meet her needs”. He added: they had “...respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing where 24 hour care is available.” Lords Walker and Dyson delivered judgments containing similarly strongly-worded approval of the Council’s efforts to assist Ms McDonald.

Councillor Fiona Buxton, the Royal Borough of Kensington and Chelsea’s Cabinet Member for Adult Social Care, said: “There really are no winners in cases like this. We are of course relieved that the Supreme Court upheld the Council’s provision of services to Ms McDonald. The court recognised that this was a long and very complicated case.

“We appreciate that this is distressing for Elaine McDonald but it is important to be aware that we provide services to many vulnerable residents and try to do so in a way which takes into account their needs and wishes. However, we must also seek to balance the needs of one individual with the needs of many other people who look to us for support when deciding how our limited budget is spent.

“I am pleased that the Supreme Court has recognised that in making these very difficult decisions the Council must have regard to the resources available to others in need, as well as the wishes of the appellant. The court also recognised that we could hardly have gone further in complying with the Secretary of State’s directions and in our efforts to consult with Ms McDonald and if possible agree with her the services we were considering providing to meet her needs.

“I want to reassure our residents that this case is a one off and will not impact on other cases.”

Guidance from the Department of Health (Fair Access to Care Services) requires all councils who provide adult social care services to set eligibility thresholds. Most boroughs in London now only provide services to meet needs in the two highest bands (substantial and critical), whereas the Royal Borough continues to provide services to meet needs deemed “moderate” and above. We want to continue to be able to do this, even in these times of reduced budgets.

Read the Supreme Court judgement (please note this is a PDF file on an external website).