Withdrawal of nighttime care breached disabled woman’s human rights

20.05.14 |
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The European Court of Human Rights (ECtHR) has decided today (20 May 2014) that the withdrawal of nighttime care from Mrs McDonald by the Royal Borough of Kensington and Chelsea breached her human rights for a period of almost a year before proper care planning processes were completed. Steve Cragg QC and Steve Broach acted for Mrs McDonald in the domestic proceedings and the ECtHR, instructed by Disability Law Service.

 

The judgment in McDonald v UK is the first time that a breach of Article 8 ECHR, the right to respect for private and family life, has been identified by the ECtHR in a case concerning the provision of services or support to a disabled person. The ECtHR held that the withdrawal of nighttime care was an interference with Mrs McDonald's right to respect for private life, and that for the relevant period this interference was 'not in accordance with the law' because of the admitted failures of the care planning in her case. Although the Court of Appeal found that care planning had not been carried out properly in that period, a finding upheld by the Supreme Court, none of the domestic courts considered this to be a breach of Article 8 ECHR.

 

An important aspect of the judgment is the focus on Mrs McDonald's human dignity, and in particular the extension of the principles established in Pretty v UK, a case on assisted dying, to the arena of the provision of welfare support.

 

A further key finding by the ECtHR was that the withdrawal of nighttime care constituted a negative interference with Mrs McDonald's Article 8 ECHR rights, which meant she did not need to establish any positive obligation to provide the support she was seeking. This is likely to be very helpful to future challenges to cuts to disabled people's care packages, not least because any such cut which is implemented without a proper reassessment or care plan review is highly likely to involve a breach of Article 8.

 

Mrs McDonald has been awarded damages of 1,000 Euros by way of just satisfaction.

 

Ian Wise QC represented Age UK in its intervention in the case in the Supreme Court.

 

Steve Cragg QC is available for media comment on the judgment. The press release from the ECtHR can be downloaded here .

 

Further information is available from the Council of Europe here; and The Independent Living Debate here:

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