Elderly people face serious neglect after a former ballerina lost a landmark battle for overnight care, a senior judge has warned.
The Supreme Court ruled in a majority verdict that Elaine McDonald, 67, who danced with the Scottish Ballet, had no right to night-time help. After Ms McDonald’s stroke in 1999, Kensington & Chelsea council granted her an overnight carer to help her to use a commode, but later said that she would have to make do with incontinence pads. Campaigners warned yesterday that, following the ruling, cash-strapped local authorities would reduce night cover further.
Their warning was echoed by Baroness Hale of Richmond, the sole dissenting judge, who said she was “troubled” by the ruling’s implications. Her written analysis said that the case centred on a “really serious question” that could affect anyone — was it lawful for a local authority to provide incontinence pads for a person who was not incontinent but needed help to use a lavatory?
“A person in her situation needs this help during the day as well as during the night and irrespective of whether she needs to urinate or to defaecate. Logically, the decision of the majority in this case would entitle a local authority to withdraw this help even though the client needed to de- faecate during the night and thus might be left lying in her faeces until the carers came in the morning.
“This is not Ms McDonald’s problem at the moment, but her evidence leaves one in no doubt that this is one of her fears. Indeed, the majority view would also entitle an authority to withdraw this help during the day. The only constraint would be how frequently (or rather how infrequently) it was deemed necessary to change the pads or sheets, consistently with the avoidance of infection and other hazards such as nappy rash. The consequences do not bear thinking about.”
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Ms McDonald said that she was not incontinent and had a horror of using incontinence pads, which she considered an “affront to her dignity”. She lost her case at the Court of Appeal last October, a decision upheld by four out of the five judges yesterday.
Age UK, which backed her case, called the ruling “shameful”. Michelle Mitchell, of the charity, said: “Older people have a fundamental right to dignity and forcing someone to sleep in their own urine and faeces could not be more undignified. This judgment opens the door to warehousing older people in their own homes without regard to their quality of life. Care should not be just about keeping people safe. It must enable them to live dignified lives.”
John Wadham, of the Equality and Human Rights Commission, said: “The court has missed a significant opportunity to protect some of the most vulnerable people in society. The commission’s inquiry into care in the home has already highlighted some of the problems with the current system. This judgment will only fuel those problems.”
Kensington & Chelsea welcomed the judgment, saying that it had to balance the needs of many elderly and vulnerable people.
The Government is considering how best to fund this sort of social care in the future. This week Andrew Dilnot, an economist, delivered his recommendation to ministers, which would mean people pay for their care up to a value of £35,000. Under his plans there would also be a greater contribution from the public purse.