Elaine
McDonald needed to go to the toilet several times during the night because of
bladder problems, although she was not incontinent. A former ballerina, she
suffered a stroke and several falls in her old age. Because of impaired
mobility, she could not get to the toilet on her own. The local authority initially
paid for a carer to help her during the night, but then revised its initial
assessment, offering her incontinence pads and sheets instead. On 6 July 2011,
the United Kingdom Supreme Court upheld the local authorities’ decision. Baroness
Hale wrote a hard-hitting dissent, famously stating that:
“In the United Kingdom we do not oblige people who can
control their bodily functions to behave as if they cannot do so, unless they
themselves find this the more convenient course. We are, I still believe, a
civilised society. I would have allowed this appeal.”
A week
ago, on 20 May 2014, the European Court of Human Rights partially dismissed Elaine
McDonald’s challenge against the Supreme Court judgment as manifestly ill-founded
and partially accepted it, finding a violation of Article 8. Although the
ruling was fairly straightforward, it elicited startlingly diverse reactions.
Lawyers from British law firm Doughty Street Chambers, who supported the applicant in Strasbourg,
hailed the judgment on Twitter as “landmark” and “historic.” The British Institute for Human Rights enthusiastically welcomed it as “a timely reminder
that whilst tough economic decisions rest with the national authorities, those
decisions must respect our basic human rights.” Surprisingly, the main offender
in the story also claimed victory: a spokeswoman for Kensington and Chelsea Council
said they were “greatly relieved” by the Court’s ruling on what was “an
immensely important case.” As the judgment sank in with disability campaigners,
the reactions became considerably more reserved. The ruling was described as “disappointing”;
“outrageous”; “an attack on human rights”; we “are moving back to medieval
times” – campaigners said. Everybody seemed to agree on one point – that this
was a significant ruling. So why was it significant, and if this was a victory,
whose was it?
I start
my brief analysis with the second, and the most consequential, part of the
ruling, which the Court declared manifestly ill founded. The Court essentially
decided that the Government was entitled to reduce the package of care offered
to the applicant, as part of its margin of appreciation. Since the Supreme
Court adequately balanced all interests involved, the Court deferred to its
judgment, and did not find it necessary to engage in a proportionality
assessment of its own. In effect, the margin of appreciation available to the
state became all-encompassing, as the decision-making process the national
level was perceived as fair and respectful of the rights involved, and the
decision in question concerned questions of policy which the state was best
left to decide on its own.
This
is a depressingly familiar outcome, in line with previous judgments in cases involving
disabled applicants who complained about lack of assistance from the state in a
variety of contexts, including in relation to the accessibility of built
infrastructure. McDonald most
closely resembles Sentges v the Netherlands,
where the applicant, whose mobility was severely impaired, complained about the
authorities’ refusal to cover the costs of a robotic arm, which would have
considerably improved his autonomy and quality of life. The Court dismissed the
case as manifestly ill-founded, employing arguments that echo those used in McDonald. By comparing the two
judgments, it is apparent that the Court’s disability case law has not moved
even one inch since 2003 when Sentges
was decided, largely impervious to developments that occurred in the meantime,
mainly the advent of the UN Disability Rights Convention.
The
Court justified its hands-off approach by having recourse to the mantra that
the decision to reduce care was one pertaining to general social and economic
policies, involving an assessment
of the priorities in the context of the allocation of limited resources,
over which the State had full discretion. This line of jurisprudence suggests
that the extent of costly support with social inclusion and independent living will always come within the states’ margin of
appreciation, and accordingly cannot possibly raise any issues under the
Convention. McDonald confirms once
more, if it was necessary, the Court’s incongruous position that price tags
always and invariably trump rights when it comes to people with disabilities,
even where, as in this case, and as suggested by Baroness Hale, without care, people
(who are not even incontinent) may be left lying in their faeces. By contrast, in other areas – such as
prison conditions or environmental rights – financial implications did not
prevent the Court from developing relatively robust jurisprudence.
Those who
welcomed the McDonald judgment have
done so for two reasons. The Court found a violation of Article 8 on the basis
that for almost one year, the national authorities were in breach of their
statutory duty to provide the applicant with night care. National courts, and
the Government in proceedings before the Court, actually conceded this point.
In any event, the extent of this failure was very limited, since during the
period in question there was partial provision - for five, and then four, days
a week. This enabled the Court to only award the applicant 1000 Euro in
non-pecuniary damages, also justified by the fact that the applicant received additional
assistance from her partner. Lawyers to the applicant hailed this as the first
ever finding of violation of Article 8 in cases concerning the provision of services or support to a disabled
person. Although technically accurate, this claim is particularly
hollow, since this violation, predicated on lack of compliance with the
national law and not involving any proportionality assessment, is not
disability specific. As an aside, the Court’s practice in this respect is not
even consistent, as there are many examples where a breach of domestic law is
not a sufficiently strong ground on its own to justify a finding of a breach of
the Convention (see for example another
disability judgment, in the case Botta v
Italy).
Second,
some welcomed the Court’s affirmation that the applicant’s dignity was engaged
in the decisions to reduce her care. In the most arresting paragraph of the
judgment, the Court likened Mrs. McDonald’s situation with that of the
applicant in the end-of-life case Pretty
v the United Kingdom, since in both cases the ability to live (or die) in a
dignified manner, in line with “strongly
held ideas of self and personal identity“, was at stake.
The Court cited approvingly from Baroness Hale’s dissenting opinion “who
appeared to accept that considerations
of human dignity were engaged when someone who could control her bodily
functions was obliged to behave as if she could not.”
Dignity is a slippery concept, whose
meaning and usefulness in human rights adjudication have been contested. Lucy
Series pointed out that in this case national courts adopted unquestioningly the local
authorities’ view that incontinence pads better protected Mrs. McDonald’s
privacy and dignity than support from a carer overnight, regardless of her
feelings on the matter. According to Series, this compounded the applicant’s
suffering, “inflicted upon her the separate and additional indignity of denying
her experience”, besides raising fundamental questions about the nature of “dignity.”
On a different level of
inquiry, in an article containing a stinging criticism of the Court’s approach
to disability, Luke Clements remarked that although “a senior judge in
possession of a hard ‘disability’ case is want to expound at length on
‘dignity’, they will very rarely actually finger a concrete situation and
identify it as an “indignity”. Judges
“appear to comprehend dignity on an objective intellectual plane but are unable
to express …subjectively the meaning of what it is to suffer indignity.” In
what may seem as a very apposite premonition of what happened in McDonald, Clements also stated that “‘dignity’
becomes something defined by a process - and perforce ‘indignity’ in terms of a
flawed process - and not as an issue of substance.”
However,
far from being a premonition, this was a sound assessment of the Court’s
approach to disability claims, of which McDonald is only the latest installment. The Court has consistently rejected claims for support
for independent living in a variety of contexts, while simultaneously invoking
grand values like dignity, and professing empathy to the plight of persons with
disabilities (“The Court by
no means wishes to underestimate the difficulties encountered by the applicant
and it appreciates the very distressing situation she is facing,” McDonald at §38). The
same applies in this case – acknowledging that the applicant’s dignity was
engaged did not prevent the Court from completely deferring to national courts,
refusing to subject the notional breach of dignity to independent scrutiny, and
rejecting the case as manifestly ill-founded, i.e.: as not even arguable. Dignity
therefore functions as a rhetorical device, employed by the Court as cover to
escape any responsibility towards people with disabilities. In that sense, the conclusion that the
emphasis on dignity in this case will have a positive bearing on decisions in
individual cases, in the United Kingdom or elsewhere, appears rushed, as long
as it lacked any traction before the Court itself.
Summing
up, in its judgment in the case McDonald v United Kingdom, the Court confirmed that States are not bound to provide
any particular level of assistance or care to persons with disabilities, which
they can withdraw at will, regardless of any implications for the dignity of
the person concerned. This outcome consolidates a much maligned and
anachronistic strand of the Court’s jurisprudence, begging the question of the
very relevance of the European Convention on Human Rights to persons with
disabilities. The Court’s decision not to subject the local authority’s
decision to any substantive scrutiny, and dismiss the case out of hand as not
raising any arguable human rights issues is striking, particular considering
how controversial domestic proceedings were, reflected in a split Supreme
Court. Considering that this was probably
the first case concerning the impact on disabled people of massive welfare
retrenchment across Europe, in the context of the economic crisis, the outcome
is quite disheartening. While this judgment was certainly a victory for the
local authority, it must have been devastating to the applicant herself, who
faces the prospect of wearing incontinence pads for the rest of her life. Portraying
the outcome in any other way distorts this basic truth, and relieves the Court
from any pressure to improve its act when it comes to persons with
disabilities.
The author is an experienced human rights lawyer, currently acting as main counsel in three cases pending before the Grand Chamber of the European Court of Human Rights, including the only two disability cases at this level - Campeanu v Romania and Gherghina v Romania.
The author is an experienced human rights lawyer, currently acting as main counsel in three cases pending before the Grand Chamber of the European Court of Human Rights, including the only two disability cases at this level - Campeanu v Romania and Gherghina v Romania.