A key case affecting the rights of the elderly to nursing care championed by equality commissioners has been thrown out by judges at the Supreme Court.

Elaine McDonald, 67, was suffered a stroke in September 1999 that left her with reduced mobility and having to use a wheelchair outside her home.

She complained that a care package put together by Kensington & Chelsea Council to cover her assessed should include an overnight carer help her use a commode at night.

The council disagreed and the case has been before the courts.

Now, the Supreme Court has ruled in favour of the council with a majority verdict.

John Wadham, Group Director, Legal, at the Equality and Human Rights Commission, said: ‘We are disappointed with the ruling which is a significant setback for people who receive care in their home. Ms McDonald is not incontinent, however this judgment means she will be treated as such.

“Local  authorities will now have greater discretion in deciding how to meet a person’s home care needs and will find it easier to justify withdrawing care.  This means that older people’s human rights to privacy, autonomy and dignity will often be put at serious risk.

“The court has missed a significant opportunity to interpret the law to protect some of the most vulnerable people in society.  The commission’s inquiry into care in the home has already highlighted some of the problems with the current system of home care.  This judgment will only fuel those problems.”

Age UK is concerned the case breaches Ms McDonald’s human rights and that the ruling could have “extremely adverse and devastating consequences for many thousands of older people if other councils take similar decisions to save money”.

Michelle Mitchell, charity director at Age UK said: “The decision is shameful. Older people have a fundamental right to dignity and forcing someone to sleep in their own urine could not be more undignified.

“This judgment opens the door to warehousing older people in their own homes without regard to their quality of life.

“Care should not be just about keeping people safe. It must enable them to live dignified and fulfilled lives.”

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