In a Supreme Court judgement issued on 6th July 2011, an appeal from a former prima ballerina to be granted assistance from her local borough council to visit the bathroom on a night was dismissed.
Royal Borough of Kensington and Chelsea insisted that it was proportionate to give Ms McDonald absorbent sheets or incontinence pads in lieu of night-time care, despite the fact that Ms McDonald is not incontinent. The change in care provision saved an estimated £22,000.
The Borough Council had justified its change of care by saying that it was protecting Ms McDonald from the risk of injury she faced by being helped to the bathroom. This argument in conjunction with the savings, overrides Ms McDonald’s human rights under article 8:
Even if article 8 interference were established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Respondent Royal Borough and the interests of its other service-users and (b) a proportionate response to the Appellant’s needs by affording her greater privacy and protection from injury.
Lady Hale would have allowed Ms McDonald’s appeal – in that it is clear that the need for help to get to the commode is so different from the need for protection from uncontrollable bodily functions that it is irrational to confuse the two, and meet the one need in the way that is appropriate to the other.