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 Sentgeswas 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 Seriespointed 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.