The Supreme Court recently considered a case about the use of limited resources to meet need, where the proposed care package was strongly opposed by the service user. In R (McDonald) v Royal Borough of Kensington and Chelsea, the court considered the case of Elaine McDonald, a former ballerina, who is disabled following a number of strokes. Ms McDonald also has a bladder condition which means she needs to urinate several times during the night. She had sought, as part of her care package, the services of a carer to help her get from bed to the toilet during the night. Her local council, responsible for meeting her community care needs, compiled a care plan that identified her need as being one for safe urination at night. The council concluded it could meet this need by providing Ms McDonald with incontinence pads instead of a carer to take her to the toilet. This was estimated to save the council over £20,000 per year.
Ms McDonald challenged the council’s care plan in judicial review proceedings. The case was recently considered by the Supreme Court and the case led to a sharp division of opinion between some of the members of the court.
Ms McDonald raised two main arguments. Firstly she argued that the council was bound by an earlier assessment which identified her need as a need to get to the toilet. The majority of the Supreme Court held, on the facts of this case, that in fact the council had re-assessed the need and was entitled to define the need in wider terms (ie, a need for safe night time urination, instead of a need to get to the toilet at night). Defining the need in these wider terms made available the option of incontinence pads to meet the need. Clearly, had her need still been “to get to the toilet”, it could not have been met by provision of pads.
Secondly she argued that the decision to meet the need by providing incontinence pads breached her Article 8 convention right which provides for respect for private life. The majority of the Supreme Court also decided this issue in favour of the council. The court held that deciding to meet the need by providing incontinence pads was not a breach of Article 8 and it was also suggested that even if it was a breach, it was a breach that could be justified by reference to the significant cost saving.
Other arguments raised in the case centred on the disability discrimination legislation. It was contended on behalf of Ms McDonald that the duty to promote equality of opportunity between disabled persons and other persons needed to be expressly considered when making care planning decisions, with the implicit suggestion that had the duty been considered, the care offered to Ms McDonald would not have been incontinence pads. The court said this argument was “hopeless”. When public bodies are discharging functions (eg, care planning functions) that are by nature specifically concerned with the needs of disabled people, express reference to disability equality duties adds nothing.
The court expressed its sympathy for Ms McDonald’s position. However, confirmation that resources can be considered when making care planning decisions will be welcomed by those professionals charged with the difficult job of making limited resources meet the needs of many. The court’s refusal to accept the arguments based on disability discrimination legislation are also welcome, relieving professionals from the obligation to expressly consider the statutory discrimination principles, which most professionals concerned with the care of disabled people would say are already built into daily practice.
This was clearly a difficult case which troubled some members of the Supreme Court. Professionals involved in care planning will be all too aware of the difficult decisions that have to be made to match resources against patient expectations.