Context is everything: why McDonald v UK is a stepping stone on the road to a dignified future for disabled people

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As disabled women, we as Sisters of Frida have been ruminating about this case, it is good to read Steve Broach’s measured comments and how he has set it out to help us understand its complexity.  Steve is a barrister at Doughty Street Chambers and acted for Mrs McDonald in the domestic courts and the ECtHR.

For a disabled person’s perspective on McDonald v UK, see the blogpost by Jan Sutton at this link instead.

Authors of our lives

By Steve Broach

The cliché that in law, context is everything is entirely true. So it is essential to examine the context for Elaine McDonald’s challenge to the decision to withdraw funding for her nighttime care, requiring her to wear incontinence pads although she is not in fact incontinent, before deciding whether the European Court of Human Rights (ECtHR) judgment in McDonald v UK (link to http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-144115#{“itemid”:[“001-144115”]}) should be seen as a success or a failure. Some of the key points include:

  • All courts are reluctant to dictate how public funds should be spent. This means that where (as here) the state is expressly relying on cost justifications, the courts will not want to intervene if this can be avoided.
  • As an international court, the ECtHR is even more reluctant than domestic courts to interfere with national-level spending decisions.
  • The principle of subsidiarity, in short leaving compliance with the…

View original post 1,154 more words

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