We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
McDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment
The Strasbourg Court has ruled that local authorities are within their margin of discretion to balance individuals’ personal interests against the more general interest of the competent public authority in carrying out their social responsibility of provision of care to the community at large.
Background
The applicant, who suffered from an incapacitating stroke in 1999, required assistance with all transfers and mobilisation. Disabled persons have an individual right to certain services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and under the 1990 National Health Services and Care Act to require an assessment of needs from their local authority. Continue reading →
The European Court of Human Rights has declared in Đorđević v Croatiathat the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.
It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life. The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.
This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?
A fascinating perspective on how a city’s architecture may be altered and shaped by aggressive rights litigation has been provided by today’s New York Times, which leads with a story entitled “Lawyers find obstacles to the disabled, then find plaintiffs“.
We are familiar in this country with the decades-old complaint that various unfortunate trends such as ambulance chasing and the litigation culture have filtered over the Atlantic, infecting English public life with defensive practices and an obsession with health and safety. Whether the blame can be laid solely at the door US culture is moot, but certainly lessons can be drawn from the unintended consequences of high-minded rights legislation as they play out across the pond, particularly where similar laws in this country – largely consolidated in the Equality Act 2010 – have yet to make their impact. Continue reading →
The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:
Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching.
Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities. Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here). In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.
The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy. Take these finding from the report on Arden Vale, for instance:
X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 – Read judgment
The Court of Appeal has ruled that disabled people are not protected by domestic or European legislation against discrimination when they undertake voluntary work.
In this decision the specific question was whether volunteers at Citizens Advice Bureaus are protected from disability discrimination. X, the anonymised claimant, argued that CAB had terminated her role as a volunteer adviser because she had a disability. She claimed that:
A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment
This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection. The Lord Chief Justice has refused the appeal.
The case was unconventional, largely because of A’s own situation. A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care. Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’. Continue reading →
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
McDonald v United Kingdom [2014] ECHR 942 (20 May 2014) – read judgment
Eleven Winterbourne View staff have 
This blog is run by
Recent comments