Does Article 8 Actually Protect Vulnerable Adults In… | tutor2u Law

Does Article 8 Actually Protect Vulnerable Adults In Care?

Article 8 of the ECHR sets out the right to a private and family life, home and correspondence. But are these rights, often concerning dignity, upheld when it comes to the care of vulnerable adults?

Firstly, let's take the example of adults with learning disabilities.

Statistically, the major issue are that they are more likely than a non-disabled person to have suffered trauma in their lives. The are also more likely to have their children taken from them by the state. They are also far more likely to spend time in prison (and they tend to serve longer sentences compared with non-disabled people who committed comparable crimes). Add to this, the fact that disabled people are more than twice as likely to be living in food poverty than non-disabled people and that they are three times less likely to hold academic qualifications and you can see how much there is yet to be done in this area.

There will be some cases where these actions might be appropriate, given the specific circumstances. However, the fact that there is an identifiable bias, demonstrates that the systems of the state may actually be contributing to making things worse for disabled adults. This is a failure of successive governments with respect to their commitments to upholding Article 8.

So, what have the courts decided?

Case example 1:

In McDonald v UK (2014) Ms McDonald had been receiving support in going her frequent night-time toilet trips, from an overnight carer, paid for by the local council. However, in order to save around £22,000 per year, they decided that the use of incontinence pads would suffice, even though she was not incontinent. Ms McDonald argued that this was an affront to her dignity and breached Article 8. The ECtHR decided that her Article 8 rights had been interfered with, but that this was justifiable as "necessary in a democratic society".

Case example 2:

In A & Ors, R v East Sussex County Council (2003), the local authority had a policy requiring home care staff to use hoist equipment in certain situations, in order to protect staff from health and safety risks. However, for two disabled sisters who lived in a specially adapted house, the policy restricted their ability to move about their home or go outside it. The local authority was ordered by the court to find a better balance between the Article 8 rights of the service users and the rights of the care workers to a safe working environment.

Case example 3:

In Sentges v The Netherlands (2003) the Dutch health authorities refused to fund an expensive robotic arm which would have enabled a patient to live at home for longer and with much greater autonomy. The applicant argued that this infringed his Article 8 rights. The complaint was rejected by the ECtHR, however, a fair balance has to be struck between the competing interests of the individual and those of the community as a whole and to the wide margin of appreciation enjoyed by individual sovereign states. This is even more-so, when there are limited state resources.

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