Rational men and troubled
women: R (McDonald) v RBKC
DR HELEN CARR KENT LAW SCHOOL
2 6 TH J A N U A R Y 2 0 1 2
JOINT MRC/SCWRU/AGE UK CONFERENCE
Outline
 The context of the decision
 The facts
 The reasoning of the majority
 Baroness Hale’s dissent
 Law and Politics
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!
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
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’
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

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
The decision of the majority
 The Care Plan Reviews
 Article 8
 Disability discrimination
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
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’
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)
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
So where does that leave us?