Case study

The case involved ex ballerina Elena MD, age 67, who had a stroke in 1999 and needs support to continue living on her own in her Earl's Court flat in London. She has both mobility problems and problems with her bladder which mean she needs to use the toilet frequently at night.

In 2008, she fell and broke her hip and was assessed by Kensington and Chelsea as having an eligible need for support both during the day and "assistance at night to use the commode".

Once an "eligible" need is determined, a local authority must, by law, provide services to meet that need. Initially Kensington and Chelsea provided a sleep-in care worker for seven nights a week but later (December 2008) decided that it could save 22,000 a year by supplying Ms Elena with incontinence pads for use at night and cutting care support to four-nights-a-week.

The case was taken to the High Court were Ms Elena argued that Kensington and Chelsea were in breach of their statutory duty. The High Court, however, found that Kensington and Chelsea Council were entitled to meet Ms Elena's need in a more economical manner, such as by the provision of pads. Therefore, Ms Elena's complaint was dismissed.

This decision upholds a council's right to amend a care plan where a cheaper alternative is available. The key is whether the alternative is suitable. In this case the Court thought that it was. In September 2011, all night-time care was withdrawn.

Question

The decision of the Kensington and Chelsea local authority refers to a well-known phenomenon that has been discussed during the course International Health Law. How would you describe this phenomenon and what does it mean?