Rational men and troubled women: R (McDonald) v RBKC

1. Rational men and troubled women: R (McDonald) v RBKC Dr Helen Carr Kent Law School 26th January 2012 Joint MRC/SCWRU/Age UK conference

2. Outline • The context of the decision • The facts • The reasoning of the majority • Baroness Hale’s dissent • Law and Politics

3. The context of the decision • The crisis of the summer of 2011 • Winterbourne View • Southern Cross • ECHR report on Home Care • The Law Commission Report • The Dilnot Report • A popular will for change • which the law disappoints!

4. Ms McDonald’s judicial review • A 67 year old former ballerina with severely limited mobility and a small and neurogenic bladder • Hospitalised several times following falls possibly due to lack of night time assistance to go to the toilet • Needs assessed by RBKC • Assistance to use the commode at night: substantial need

5. Reassessment of need • Provision of incontinence pads/absorbent sheets therefore avoiding the need for a long term carer ‘the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your legible needs … The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources’

6. Ms McDonald’s position • Despite assertions of the advantages of incontinence provision • She was not incontinent and did not wish to be treated as if she was • This was an affront to her dignity

7. The legal framework of community care • Local authorities empowered to provide community care services • Duty to assess within s.47 of the NHSCC Act 1990 • Duty to assess and provide services to disabled people under s.2 of the CSDPA 1970 • Barry – resources can be taken into account when assessing needs but once identified those needs must be me

8. The decision of the majority • The Care Plan Reviews • Article 8 • Disability discrimination

9. Hale’s dissent • Is it lawful for a local authority to provide incontinence pads for someone not in fact incontinent but reliant on hep to get to the lavatory? • The local authority must ask the right questions • Uses rationality and reasoning by analogy to reach her decision • A provocative dissent

10. Lord Walker • ‘I find it rather regrettable that Lady Hale’s judgment makes so many references to defecation… I totally disagree with, and I deplore, Lady Hale’s suggestion that the decision of the majority would logically entitle a local authority to withdraw help from a client so that she might be left lying in her faeces day an night relieved only by periodic changes of absorbent pads or sheets’

11. A feminist perspective • For liberalism, women can be a source of disorder • Neoliberalism • Makes the achievement of feminist goals more difficult. The increase in economic inequality and the decrease in the legitimacy of state action alter the context in which feminism makes its demands (WALBY)

12. The characteristics of contemporary judgments • Black letter law paying attention to form rather than substance • Preference for a particular sort of expertise • Works to maintain order and the status quo • Reduces potentially transformative legal tools such as dignity to mere formalities

13. So where does that leave us?