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Judge Who Disagreed In Elaine McDonald Case Now Fears For Elderly

July 7, 2011

A judge said she was troubled by the implications of a supreme court decision against a former ballerina which campaigners say could lead to the elderly being “warehoused” at home “without regard to their quality of life”.

Supreme court justice Lady Hale, a member of the panel of five judges who made the ruling, told of her fears that older people “might be left lying in faeces” because local authorities would be entitled to withdraw help.

Campaigning charity Age UK described the ruling as “shameful” and suggested that it could lead to the infirm being forced to “sleep in their own urine”.

Lady Hale and four other supreme court justices had been asked to rule on a case in which Elaine McDonald, 68, who has had a stroke, argued that her council should provide a night-time carer to help her use a commode at her London flat rather than merely supply her with incontinence pads.

Four justices ruled in favour of the Royal London Borough of Kensington and Chelsea, and the appeal was dismissed by a 4 – 1 majority.

Lady Hale disagreed with her colleagues, and said she would have allowed the appeal. In her written analysis she raised concerns about the implications of the ruling.

The high court and court of appeal had earlier ruled in the council’s favour.

Judges heard that McDonald, who was once a star of Scottish Ballet and received the OBE in 1983, was left with reduced mobility after a stroke in September 1999.

She had argued that the care package she received from Kensington and Chelsea should include assistance at night to use a commode.

The council said McDonald should use incontinence pads or absorbent sheets – even though she is not incontinent – at night.

Bosses said incontinence pads would reduce the risk of McDonald being hurt using a commode, provide independence and privacy, and cut the cost of her care by £22,000 a year.

McDonald said she was “appalled” at the thought of being “treated as incontinent” and considered the use of pads an “intolerable affront to her dignity”.

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