Sun, 05 Feb 2012
By James Dixon
There's a man I meet
Walks up our street
He's a worker for the council
Has been twenty years
And he takes no lip off nobody
And litter off the gutter
Puts it in a bag
And never thinks to mutter
And he packs his lunch in a Sunblest bag
The children call him Bogie
He never lets on
But I know 'cause he once told me
He let me know a secret
About the money in his kitty
He's gonna buy a dinghy
Gonna call her Dignity
And I'm thinking about home
And I'm thinking about faith
And I'm thinking about work
And I'm thinking
How good it would be
To be here some day
On a ship called Dignity
A ship called Dignity
I grew up in the 1980’s in Scotland and listened among things to the music of Deacon Blue. The above words are from their song, ‘Dignity’, which expresses a plea for more dignity for the treatment of ordinary people, people who could very easily be cast aside by society as being unimportant and all too easily forgotten.
Dignity at the heart of human rights
The notion of the dignity of the human being has been at the centre of the common law – so we are told – for as long as one can remember. It was certainly at the forefront of the European Convention on Human Rights in its inception after the Second World War. This was reiterated very recently by David Cameron on 25th January 2012, when he addressed the Council of Europe and when he sought to reassure members of the Council of the United Kingdom’s commitment to human rights. He referred to the words of Winston Churchill: “Victory [over Nazi Germany]…was the victory of an ideal founded on the right of the common man, on the dignity of the human being and on the conception of the state as the servant and not the master of its people.” The fact that David Cameron was reinforcing dignity as being at the heart of human rights shows that there is a large measure of consensus that one of the main purposes – and arguably the main purpose – of any human rights law, should be to protect and enhance inherent human dignity. In the same connection it is worthy of note that the Equality and Human Rights Commission home care review mentions the word dignity 58 times.
Can dignity be maintained at a time of cuts?
Whilst most of us may be able to agree as to dignity as a core value, even those such as Cameron who are otherwise sceptical of the European Convention on Human Rights, the key issue as ever for the day-to-day practice and development of the law is the degree to which that value is properly being protected by our courts. The reality is that the economic climate and the coalition government’s strategy to cut public spending ‘fast and deep’ presents huge challenges as regards protecting the rights of the vulnerable and ensuring that the cutting which the government is committed to does not go so deep so as to rip the heart out of the ideal of the dignity of the person. In human rights there is often a tension between the allocation of scarce resources on the one hand and the cost (or perceived cost) of upholding rights on the other. This battleground is arguably the most intense in the area of community care, social care and the care of the vulnerable more generally. It is in precisely these areas of the law that the need for proper protection of rights is so vital for obvious reasons and yet is it also exactly in these areas where the cost for the public purse can be felt the most. This tension is likely to be seen in a growing number of cases before the courts in the foreseeable future as the austerity measures look to be here to stay.
The Supreme Court on dignity: an undignified decision?
In R (McDonald) v Kensington and Chelsea RLBC  UKSC 33, 6 July 2011, the Supreme Court considered a case which had at its centre the question of the dignity of disabled lady who needed assistance to use the toilet at night because of a bladder condition and the effects of a stroke. She had had the assistance of a carer during the night but her local council decided it was no longer willing to pay for the cost of that. As an alternative it gave her the choice between moving to sheltered accommodation in which she would receive the overnight care or being provided with incontinence pads for use at night. The case therefore put into sharp focus the tension between the need to cut services on the one hand and the dignity of the individual (a vulnerable person at that) on the other. Indeed, it is difficult to imagine a scenario that raises questions of essential human dignity more than one in which the issue is whether an elderly disabled lady ought to be made to lie all night, or part of the night, in her own urine. The majority of the Court (Baroness Hale dissenting in emphatic terms) ruled that it was reasonable for the council to refuse to provide the carer at home. As the lady had indicated that she did not wish to be moved to sheltered accommodation, this meant that the effect of the ruling is to require her to urinate in her own bed. Her own evidence before the court was that she felt that such a result was an affront to her dignity. The decision does indeed seem like an assault on basic human dignity; certainly Baroness Hale thought so. A number of interesting points emerge from the judgment.
Resources trumping the right of an individual to be treated with dignity: a firming up of Ex p Barry
The broad point that appears to be central to the thought process of the majority – even if not stated expressly –is that it will be fairly difficult for a person in receipt of care in these circumstances to show that a reduction in the level of care is unreasonable and thereby unlawful. There was clearly a balance to be struck between the need for the council to cut costs and the need for the disabled lady to continue to benefit from the same level of care. Lord Brown refers in his speech to the council claiming that there would be an annual costs saving of £22,000. The majority, it seems, were quite prepared to accord the council a large measure of discretion in that balancing act. In this regard the approach of the majority appears to open the door very generously to authorities and other care providers who consider they need to cut welfare services. Of course, every case is fact sensitive. However, this judgment is bound to be relied on for some considerable time by those seeking to cut the provision of services as it does have the effect of setting the bar quite high for those seeking to challenge such cuts.
As regards resources in this context, there was reference to the 3-2 decision in R v Gloucestershire County Council, Ex p Barry  AC 584 to the effect that ‘need within the meaning of section 2(1) of CSDPA 1970 is a relative concept and that needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person’s need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled’ (Lord Nicholls of Birkenhead, at ).
There is however a difference between the taking into account of costs considerations and actually allowing those costs considerations to prevail over the imperatives of care essential to dignity. What the Supreme Court seems to have done is to take the ‘taking into account’ principle in Ex p Barry and give costs and resources considerations greater weight, no doubt equipping authorities to withstand challenges more easily. This policy-driven approach does seem to animate the majority.
Scope for challenge?
In light of the message sent out by the majority – as it being difficult to get round resources arguments – what points can be identified in the judgment that may make it possible, nonetheless, to challenge cuts in care provision.
Firstly, it is arguable that the principle of Ex parte Barry requires a more nuanced approach than the majority in McDonald were prepared to give it. Baroness Hale touches on this at paragraphs 69 to 73. It appears that the Appellant’s counsel was not prepared to challenge whether Barry had been correctly decided and Lord Brown made play of this at paragraph 8 (“…least of all did the appellant suggest that we might like to revisit the decision in Barry, controversial though at the time that was.” Baroness Hale expressed a wish that Barry had been challenged. The door is still left open then as regards the resources issue notwithstanding what at first sight McDonald might suggest.
Secondly, it is also important to note that Barry was decided before the ECHR became incorporated into domestic law. It is surely very arguable that the Lords would have looked at the matter differently following the incorporation of the ECHR, not least because it was only a 3-2 majority after all.
Thirdly, it could be said that the analysis of Baroness Hale is the deeper analysis of the real issues and, in particular, seeks to deal with the issues in the broader context of the development of social care. As was acknowledged, for instance by Lord Brown at paragraph 27, she possesses ‘acknowledged expertise in social care law’ and her assessment of the case certainly bears that out. Her approach seems to have been much more informed by the development of law and policy in this area (see paragraphs 62 to 73).
Fourthly, and closely connected to the previous point, there is in Baroness Hale’s approach important recognition given to the overarching aim of policy in the area of social care; namely to ensure that people are enabled to live independent lives in their own homes for as long as possible. One could call this for shorthand, the ‘autonomy principle’. A key point in this regard is dealt with at paragraph 75 with reference to the position of the local authority that the provision of incontinence pads is widespread and accepted practice:
“The authority suggests that this is ‘accepted practice’ but they cannot point to evidence that it is accepted practice in effect to oblige the client to accept it. Such Department of Health guidance as there is points the other way: that people should not be offered this form of assistance prematurely, in case they become unnecessarily dependent upon it.”
The need to have regard to the autonomy principle in this area is a crucial aspect of the whole assessment of dignity. There is a good argument that the approach of Baroness Hale is to be preferred because it accord fuller weight to this principle. It does not seem to figure in the reasoning of the majority at all as a relevant consideration. No doubt allowing for too much of a role for autonomy may well bring with its costs implications and so the argument feeds back again into resources. No doubt those who act for the local authorities and care providers will seek to put the genie of personal autonomy back into the resources bottle. On the other hand, those wishing to develop and strengthen the dignity of the individual and give it richer meaning will be looking at this strand of reasoning in the approach of Baroness Hale with a view to developing arguments. There is no doubt scope to do that.
Fifthly, the treatment of Article 8 (‘respect for private and family life’) appears to have been rather cursory. The majority appear to regard as sceptical the notion that Article 8 was even engaged on the facts. In particular, the case appears to have lacked developed argument as to the whole notion of the ‘physical and moral integrity’ of the person. There is relatively rich seam of case law on this point in the immigration context and this is perhaps another example of where good cross-over knowledge can be valuable. On the face of it the question of whether an individual can be deprived of care such that they are compelled to urinate (and possibly worse) in their own bed in circumstances where they are not incontinent, surely raises very serious issues as to the physical and moral integrity of that person and their dignity as an aspect of that. It is surprising that this was not more developed.
Finally, as someone who deals with detention cases, I cannot but help notice the contrast between this case and the case of Napier v Scottish Ministers  U.K.H.R.R. 308 (OH) which found that the practice of ‘slopping out’ violated the dignity of the prisoner detained in Barlinnie prison. This raises the obvious question: is the state reasonably required to pay for a greater degree of dignity in respect of someone in detention as compared to someone who still happens to be, and to want to be, in their own home?