McDonald v. the United Kingdom: A step forward in addressing the needs of persons with disabilities through Article 8 ECHR

This guest post was written by Marijke De Pauw, Ph.D. Researcher at the Fundamental Rights and Constitutionalism Research Group (FRC) of Vrije Universiteit Brussel. Her research is part of the research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective” (HRI) and concerns the fundamental rights of older persons.

In McDonald v. the United Kingdom, the European Court of Human Rights dealt with a case concerning the reduction in night-time care for an elderly lady. The applicant complained that a reduction in night-time care disproportionately interfered with her right to respect for her private life under Article 8 ECHR.

Facts

The applicant, Elaine McDonald, is a British national born in 1943 suffering from severely limited mobility caused by a stroke. As a result, she was unable to safely access a toilet or commode without assistance. In March 2007, the local authority provided her with a care package, including seventy hours of night-time care per week. In a subsequent care plan dated 27 April 2007 it was confirmed that the applicant needed assistance to use the toilet at night. However, on 17 October 2008 the local authority took the formal decision to reduce the amount allocated for the applicant’s weekly care and she would be provided with incontinence pads instead of night-time care. The formal notification, dated 21 November 2008, stated that “the Council must provide care in a way that shows regard for use of public resources.” A subsequent Care Plan Review of 4 November 2009 concluded that the use of incontinence pads was “a practical and appropriate solution” in Ms McDonald’s situation.

Ms McDonald brought her case before the Court of Appeal, which found that between the decision to reduce her night-time care and the first Care Plan Review, the local authority had violated its statutory duty to provide the applicant with the assistance needed to use a commode. It also considered, however, that the local authority had mitigated that breach by entering into an arrangement with her partner. As regards Article 8 ECHR, the Court found no breach as the local council’s error was not born of any lack of respect for the applicant’s dignity. The applicant finally brought her case before the Supreme Court, which agreed with the Court of Appeal on the matter.

The Court’s judgment

The applicant complained before the Strasbourg Court that the reduction of night-time care was both an interference with her right to respect for her private life as well as a breach of the State’s positive obligation to provide her with a service which enabled her to live with dignity. In particular, she submitted that being forced to use incontinence pads even though she was not incontinent affected her ability to maintain an independent life at home, negatively impacted on her family life and exposed her to considerable indignity.

In assessing whether the facts fell within the scope of Article 8 ECHR, the Court first referred to its previous case law to reaffirm that “private life” is a broad concept, including a person’s physical and psychological integrity; the right to “personal development”; and the notion of personal autonomy. It made specific reference to the Pretty case, concerning assisted suicide, to demonstrate that Ms McDonald too was faced with living conditions that “conflicted with her strongly held ideas of self and personal identity.” The Court subsequently agreed with Lady Hale’s dissenting opinion in the Supreme Court’s Decision, which stated that in the applicant’s situation notions of human dignity were engaged. The Court thus concluded that the reduction in night-time care could impact her enjoyment of her right to respect for private life and falls within the scope of Article 8 ECHR.

The Court further clarified that the case differed from previous cases where it has considered funding for care and medical treatment to fall within the sphere of positive obligations, as the applicant complained of a reduction in the care provided, rather than a lack of action altogether. The present case could therefore be considered without addressing the question regarding positive obligations under Article 8 ECHR.

As regards the period between the notification of the reduction in night-time care (21 November 2008) and the Care Plan Review (4 November 2009), the Court confirmed that the interference with the applicant’s right to respect for her private life was in breach of Article 8 ECHR as it was not in accordance with the law. However, as regards the period from 4 November 2009 onwards, the Court found that the interference was in accordance with the law and that it pursued a legitimate aim, namely the economic well-being of the State and the interests of the other care-users. Referring to its previous case law, the Court reaffirmed that States have a wide margin of appreciation in issues of health-care policies and that this margin is particularly wide when the issues involve an assessment of priorities in the context of the allocation of limited State resources. It also found that the proportionality of the decision to reduce the applicant’s care package was fully considered by the national courts, taking into account the local authority’s efforts to consult the applicant and its concerns for her safety, independence and other care-users. Consequently, the Court concluded that the requirements under Article 8 para. 2 ECHR were met and the State did not exceed the margin of appreciation afforded to it. The complaint for this period was therefore found to be manifestly ill-founded and rejected.

Comments

Although in this case the Court did not find a violation of Article 8 ECHR for the period following the re-assessment of the applicant’s needs, the judgment may prove to be of important value for future cases regarding cuts in care and assistance provided to persons with disabilities and the elderly. Particularly remarkable is the Court’s decision not to consider the State’s positive obligations. By approaching such cases regarding the reduction in care packages as a potential breach of the negative obligation not to interfere with the applicant’s right to respect for her private life, there will no longer be a need for applicants to establish that the State had a positive obligation to provide the applicant with the necessary assistance.

Another important aspect of the case is the focus on the applicant’s “dignity”, reflected inter alia in the references to Article 3 (a) CRPD and Article 1 of the EU Charter of Fundamental Rights under the relevant international instruments. The Court also made the comparison with the Pretty case, in which it had held that the very essence of the Convention was respect for human dignity and human freedom. This is the first time that the Court applies those principles to the issue of care and assistance services for persons with a disability and an important approach to assess similar cases within the scope of Article 8 ECHR in the future.