Context is everything: why McDonald v UK is a stepping stone on the road to a dignified future for disabled people

By Steve Broach

The cliché that in law, context is everything is entirely true. So it is essential to examine the context for Elaine McDonald’s challenge to the decision to withdraw funding for her nighttime care, requiring her to wear incontinence pads although she is not in fact incontinent, before deciding whether the European Court of Human Rights (ECtHR) judgment in McDonald v UK (link to http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144115#{“itemid”:["001-144115"]}) should be seen as a success or a failure. Some of the key points include:

  • All courts are reluctant to dictate how public funds should be spent. This means that where (as here) the state is expressly relying on cost justifications, the courts will not want to intervene if this can be avoided.
  • As an international court, the ECtHR is even more reluctant than domestic courts to interfere with national-level spending decisions.
  • The principle of subsidiarity, in short leaving compliance with the European Convention on Human Rights (ECHR) to national courts and institutions, is gaining greater traction given increasing anti human rights rhetoric and Euroscepticism.
  • The ECHR, drafted in the 1950s, was not intended to protect socio-economic rights – rights such as housing or healthcare which rely on state expenditure for their realisation.
  • However the ECHR is a ‘living instrument’ and in more recent years the ECtHR has held that there may be ‘positive obligations’ on the state to take action, including action which costs money, to avoid breaches of ECHR rights. This is most likely to be the case where inaction would result in a breach of Article 3 ECHR, the right to freedom from inhuman and degrading treatment. Positive obligations can also arise under Article 14 ECHR, the prohibition against discrimination.

 

Mrs McDonald could not bring her case within Article 3 ECHR or Article 14 ECHR. Her case was therefore brought solely under Article 8 ECHR, the right to respect for family and private life. This right was initially framed wholly negatively, prohibiting unlawful interferences by the state with individuals and families, for example by taking children into state care unnecessarily. More recently though, the ECtHR has repeatedly said that positive obligations ‘may’ arise under Article 8 to provide services and support to ensure that private and family lives are respected. However, until Mrs McDonald’s case it had never actually found a breach of Article 8 through a refusal to provide such services.

 

Although there is one domestic case where a failure to provide appropriate support to a disabled person gave rise to a breach of Article 8 ECHR (R (Bernard) v Enfield LBC [2002] EWHC 2282 (Admin) – link to http://www.bailii.org/ew/cases/EWHC/Admin/2002/2282.html), the facts of that case were extreme and no further breach has been found by the English courts since 2002. Moreover the domestic courts gave short shrift to the human rights arguments in Mrs McDonald’s case, Lord Brown in the Supreme Court holding that there was no ‘interference’ for the purposes of Article 8 ECHR. Only Lady Hale found that what had happened to Mrs McDonald was unlawful and even Lady Hale did not find a breach of Article 8 ECHR.

 

This then was the unpromising context for Mrs McDonald’s attempt to show that the decision to withdraw her nighttime care and leave her in incontinence pads at night was a breach of her human rights. The ECtHR did not find that there had been any breach of Mrs McDonald’s human rights by failing to respect her dignity. The essential reason for this was the ‘margin of apprecation’ to be afforded to the national authorities in matters of resources. As the ECtHR put it, ‘In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court…the Court is of the opinion that in reducing [Mrs McDonald’s] care-package it cannot be said that [the state authorities] exceeded the margin of appreciation afforded to them.’

 

The ECtHR did however hold that considerations of dignity in the context of social care services for disabled people can engage the ‘private life’ limb of Article 8 ECHR. The Court recognised that Mrs McDonald was being offered a level of care which ‘conflicted with her strongly held ideas of self and personal identity’, and emphasised that ‘the very essence of the Convention [is] respect for human dignity and human freedom’. These principles have been expressed in ‘right to die’ cases, but not before in the context of the provision of social care. On this basis the ECtHR decided that ‘the contested measure reducing the level of her healthcare falls within the scope of Article 8’.

 

This finding allowed Mrs McDonald to show that her Article 8 ECHR rights had been breached for a period of almost a year when there had been no lawful reassessment of her needs, meaning the interference was ‘not in accordance with the law’. Although seemingly technical, this finding is very significant. The entire domestic social care scheme is built on the assessment duties, and McDonald v UK now means that any decision to withdraw care without a lawful reassessment (i.e. one that is in accordance with relevant law and guidance and which takes account of all material facts) is very likely to breach Article 8 ECHR. This gives a greater focus to the need for proper assessment for disabled children and adults, not least because failures to assess or reassess properly could well lead now to awards of damages, as in Mrs McDonald’s case.

 

A further important step taken by the ECtHR in McDonald is to establish that the withdrawal of care can constitute a negative ‘interference’ with the protected Article 8 rights which then falls to be justified by the state. This is important because it removes the burden on the disabled person to show that their circumstances are so extreme that there is a positive obligation on the state to provide care in their case – thus making it more likely that future human rights challenges to cuts in care will succeed.

 

So McDonald v UK has to be seen as a qualified success – qualified most importantly by the failure to get the care services Mrs McDonald needs at night reinstated. Essentially McDonald v UK means that there is now a human right across Europe to be provided with the level of care that domestic law requires in each state – certainly where care actually being provided is to be reduced or withdrawn. In a time of austerity this is a significant win.

 

However the ECtHR stopped well short of establishing a meaningful dignity threshold that would apply Europe-wide. Perhaps this is unsurprising, given that the UN Convention on the Rights of Persons with Disabilities is less than 10 years old and proper respect for the dignity of disabled and elderly people is yet to be fully embedded in society. There remains a fundamental disconnect between the rhetoric of dignity which the ECtHR is willing to expound and the hands-off approach to actual cases dictated by the ‘margin of appreciation’ afforded to states. This is the outstanding challenge for future cases, or potentially for the Grand Chamber of the ECtHR in Mrs McDonald’s case. It may be however that given the margin of appreciation it will be for the domestic courts to give substance to disabled people’s right to dignity rather than the ECtHR. This truly would be ‘bringing rights home’, the project behind the Human Rights Act 1998.

 About the author

Steve Broach is a barrister at Doughty Street Chambers and acted for Mrs McDonald in the domestic courts and the ECtHR. Follow Steve on Twitter @stevebroach. For a disabled person’s perspective on McDonald v UK, see the blogpost by Jan Sutton here (link to http://jansutton.blogspot.co.uk/2014/05/mcdonald-v-uk-opportunity-for-dignity.html)

 

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