Sunday, July 6, 2014

Does "Assessment of Need" Obligate State to Meet Those Needs?

I'm back from a fun and productive time in Northern Ireland, and feeling invigorated.  In addition to enjoying beautiful weather, great craic, and time spent with friends exploring the north Antrim coast via foot, boat and a friend's snazzy red convertible, I participated in working meetings in Belfast conducted by Claire Keatinge, the Commissioner of Older People for Northern Ireland (COPNI).  The topics were prospective laws and guidance regarding safeguarding and social care policies for older adults, connected to commissioned research by two academic teams headed by members of Queens University Belfast. COPNI Research and Advisory Team for Adult Social Care Law and Policy   

I've been thinking about one particular theme that emerged for me from the working sessions: does a government's commitment to assess need for services obligate the government to meet those needs?  In a perfect world, of course that would be the goal, but this is hardly a perfect world.  Claire Keatinge (pictured in the center, with members of the social care research and advisory teams) raised the point that too often governments may be driven by "what services are available" as the definition of need.  In other words, there is a tendency to recognize an individual's need only if the government actually has a program or package of services available.  Thus, for example, even if the individual needs one-on-one monitoring and assistance to avoid serious risk of injury from falling, the tendency of social care programs would be to indicate 4 hours per day of "need" if that was the limit of government funding. Such "backwards" assessment leaves the person vulnerable, not just from the limitations on public funding, but from the inaccurate record of need. 

We spent time talking about whether legislation or policy guidance should address both assessment of need and programs of service. The COPNI discussion helped me to realize that accurate assessment and recording of all need is critical to coordination of family, volunteers, nonprofit or church-based assistance, and government funding to meet the true needs of disabled or frail individuals. However, assessment of need still carries implications for government funding. 

The implications of assessment are addressed in an important recent decision of the European Court of Human Rights in McDonald v. United Kingdom (Application No. 4241/12).  In the case, a British woman born in 1943 sustained a disabling stroke in 1999, followed by a badly broken hip from a later fall.  Ms. McDonald, who was not incontinent, applied for assistance at night with toileting; eventually she was assessed as being in "substantial need" of nighttime personal assistance and provided a funding package that permitted her to have nighttime assistance.  However, later the government office reduced the funding, appearing to conclude the cost was excessive and "incontinence pads" for nighttime use was sufficient, reducing the number of hours of service.  

Ms. McDonald challenged the reduction of services under Article 8 of the European Convention on Human Rights, arguing the decision violated her right to respect for her private life, and that the local authority was "unreasonably and unlawfully failing to meet her assessed and eligible needs."  Several months later she was reassessed by the local authority, which then determined that Ms. McDonald's needs for "safety" at night could be adequately met by the use of incontinence pads and sheets.  Ms. McDonald framed an emotionally persuasive case that the ability to toilet in a dignified manner was a core human right.

Ms. McDonald's appeal was addressed by high courts in England, before reaching the European Court of Human Rights, which issued a decision in May 2014.  Ultimately the court concluded that during the period of time between the initial assessment of "substantial" need and the later reassessment, a period of about a year during which Ms. McDonald was provided with limited nighttime assistance, was a violation of Article 8.  She was therefore deemed entitled to a relatively nominal sum of damages (explained in a detailed portion of the opinion).  However, once the local authority's "reassessment of need" occurred, the Court determined it was without the power to find a human rights violation under Article 8.  This outcome strikes me as demonstrating the potential for governments to be driven by finances to avoid making independent, candid assessments of need. Ms. McDonald's physical conditions and nighttime needs had not changed; only the "assessed needs" had changed.

For more on the implications of the McDonald ruling, viewed by many as a "win" because it recognized a personal right protected under Article 8, see English Barrister Steve Broach's thoughtful commentary, "Context is Everything: Why McDonald v. UK is a Stepping Stone on the Road to a Dignified Future for Disabled People." 

http://lawprofessors.typepad.com/elder_law/2014/07/does-assessment-of-need-obligate-state-to-meet-those-needs.html

Current Affairs, Discrimination, Health Care/Long Term Care | Permalink

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