A celebrated former ballerina was told by the country’s most senior judges July 8 that the State has no duty to provide her with a helper so she can live with dignity in her own home.
Stroke victim Elaine McDonald – once described as Britain’s best classical dancer – lost an appeal to the Supreme Court for a night-time carer.
Judges, with one exception, said she had no right to demand a helper and that social workers were within the law when they withdrew the carer to save £22,000 a year.
Coming at a time of massive spending cuts, the test case cleared the way for local authorities across the country to reduce the help they provide to the elderly and disabled so they can remain in their own homes.
Over the past five years councils have already cut back heavily on the way they use their £14billion-a-year social care budget to provide such personal help at home.
July 8 the judges found there was nothing in law to say that Miss McDonald should have assistance from the state and that human rights rules did not cover her case.
The judgment means that 68-year-old Miss McDonald must use incontinence pads – although she is not incontinent – because she needs to reach the bathroom three times a night but cannot do so without help.
The ruling brought an angry response from the dissenting judge, Lady Hale.
She said: ‘We are, I still believe, a civilised society. I would have allowed this appeal. In the United Kingdom we do not oblige people who can control their bodily functions to behave as if they cannot do so.
‘I am troubled by the implications of the (majority) view. A person in her situation needs this help during the day as well as during the night.
‘Logically, the decision of the majority in this case would entitle a local authority to withdraw this help even though the client might be left lying in her faeces until the carers came in the morning.
‘This is not Miss McDonald’s problem at the moment, but her evidence leaves one in no doubt that this is one of her fears.
‘Indeed, the majority view would also entitle an authority to withdraw this help during the day. The only constraint would be how frequently (or rather how infrequently) it was deemed necessary to change the pads or sheets, consistently with the avoidance of infection and other hazards such as nappy rash.
The clawback, in which social workers have gradually set higher and higher thresholds of illness and disability before people are allowed help, has been detailed by the Daily Mail’s Dignity for the Elderly campaign.
The Supreme Court decision means further cutbacks are certain to come for 557,000 people, 368,000 of them elderly, who rely on help at home at the discretion of local authority social workers.
The ruling by five judges brought fierce criticism from charities.
Michelle Mitchell of Age UK said it was ‘shameful’ and added: ‘Older people have a fundamental right to dignity. This judgment opens the door to warehousing older people in their own homes without regard to their quality of life.’
Miss McDonald, who was prima ballerina for Scottish Ballet and received an OBE in 1983, had a stroke in 1999 which left her with ‘severely limited mobility’.
She has no children, and her partner, theatre lighting designer Donald McLeish, used to help at night but can no longer do so.
The Supreme Court judgment said Miss McDonald ‘suffers from a small and neurogenic bladder which means she has to urinate some two to three times a night’.
She has until now ‘accessed a commode with the help of a carer’ provided by the London borough of Kensington and Chelsea.
The judges recognised that in her opinion ‘the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.’
But the majority of the judges said the council was free to change its ‘care plan’ for Miss McDonald and that it was free to decide what her needs were.
The Supreme Court sits in London and is the UK's highest court
They found that the council’s social workers had not infringed Miss McDonald’s right to privacy and a family life under Article Eight of the European human rights convention – a clause that has nevertheless allowed hundreds of foreign criminals to escape deportation.
Miss McDonald said: ‘I have paid my dues since I was 16 – I am not a scrounger. But now I need care and that is being denied me. And I fear that my case will be used by other councils against other people so they don’t have to provide them with the care they need.
‘That idea is horrific.
‘I have the right to live with dignity,’ she added.
‘And for me that means to be able to go to bed knowing that I have the help I need to go to the toilet in the middle of the night. Having night-time care would give me the freedom not to worry all day about what will happen at night.’
Elaine McDonald, once a star performer in a profession which demands supreme physical fitness, now needs day and night help to lead a decent life.
Even the Supreme Court judges were moved by her plight. They began their explanation of their decision with the words: ‘Ill health can be dreadfully cruel.’
Miss McDonald, however, has not yet lost her dignity nor the determination that once made her one of the country’s top classical dancers.
She said that in the aftermath of her stroke in 1999 ‘the doctors told me I would never walk again. They had never come across the determination of a ballerina.
‘Now I can walk if someone is there to supervise me.’
Born in Leeds in 1943, she trained at the Royal Ballet School and by the 1980s was considered the best ballerina in the country.
She shares the ground floor flat in West London where she has lived for 40 years with her cat Mi Fun. Theatre photographs and ballet posters decorate the walls.
Her 57-year-old partner Donald McLeish, a theatre lighting designer, provides her with some help but has moved out after having a nervous breakdown.
She must rely on others for almost all her needs and used to have a care ‘package’ that meant someone was there to help around the clock. But this has been scaled down to four time slots. A carer attends between 8.30am and 10.30am, from 1pm to 2pm, from 5pm to 5.30pm and from 8pm to 8.30pm. She must rely on her partner or friends at other times.
Mr McLeish said of Kensington and Chelsea Council: ‘They determined that she needed night-time care. Now they are ignoring their own expert advice.
‘I have done my best to look after Elaine but I suffered a nervous breakdown due to the strain.’
Friday, July 8, 2011
UK Supreme Court rules that council within its rights to cut overnight carer for former ballerina who needs help to move to the lavatory
The Daily Mail in the UK:
Posted by BA Haller at 3:23 PM