DR HELEN CARR KENT LAW SCHOOL26TH JANUARY 2012

JOINT MRC/SCWRU/AGE UK CONFERENCE

Rational men and troubled women: R (McDonald) v

RBKC

Outline

The context of the decisionThe factsThe reasoning of the majorityBaroness Hale’s dissentLaw and Politics

The context of the decision

The crisis of the summer of 2011 Winterbourne View Southern Cross ECHR report on Home Care The Law Commission Report The Dilnot Report

A popular will for change which the law disappoints!

Ms McDonald’s judicial review

A 67 year old former ballerina with severely limited mobility and a small and neurogenic bladder

Hospitalised several times following falls possibly due to lack of night time assistance to go to the toilet

Needs assessed by RBKC Assistance to use the commode at night:

substantial need

Reassessment of need

Provision of incontinence pads/absorbent sheets therefore avoiding the need for a long term carer

‘the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your legible needs … The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources’

Ms McDonald’s position

Despite assertions of the advantages of incontinence provision She was not incontinent and did not wish to be

treated as if she was This was an affront to her dignity

The legal framework of community care

Local authorities empowered to provide community care services

Duty to assess within s.47 of the NHSCC Act 1990

Duty to assess and provide services to disabled people under s.2 of the CSDPA 1970

Barry – resources can be taken into account when assessing needs but once identified those needs must be me

The decision of the majority

The Care Plan ReviewsArticle 8Disability discrimination

Hale’s dissent

Is it lawful for a local authority to provide incontinence pads for someone not in fact incontinent but reliant on hep to get to the lavatory?

The local authority must ask the right questions

Uses rationality and reasoning by analogy to reach her decision

A provocative dissent

Lord Walker

‘I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation… I totally disagree with, and I deplore, Lady Hale’s suggestion that the decision of the majority would logically entitle a local authority to withdraw help from a client so that she might be left lying in her faeces day an night relieved only by periodic changes of absorbent pads or sheets’

A feminist perspective

For liberalism, women can be a source of disorder

Neoliberalism Makes the achievement of feminist goals more

difficult. The increase in economic inequality and the decrease in the legitimacy of state action alter the context in which feminism makes its demands (WALBY)

The characteristics of contemporary judgments

Black letter law paying attention to form rather than substance

Preference for a particular sort of expertiseWorks to maintain order and the status quoReduces potentially transformative legal tools

such as dignity to mere formalities

So where does that leave us?