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Secretary of State seeks guidance from the Court of Protection - Skripal case

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Case highlights importance of protecting the rights of individuals who lack capacity

It is said that the Court of Protection creates a level playing field between the powerful and the powerless. The majority of the cases decided by the Court of Protection relate to people whom are never identified beyond a set of initials to ensure they are protected, yet whose life circumstances are that which many can relate to.

The court is of great importance as it exists to safeguard vulnerable people who lack the mental capacity to make decisions for themselves. These decisions relate to the person’s finances or their health and welfare including where they live, whom they have contact with and whether they undergo medical procedures.

However, as the work of the court becomes more widely recognised, the scope of its jurisdiction is becoming wider and the cases which are being heard are becoming more unique in nature. This has never been more evident than the ‘Novichok’ case which was heard last month.

On Sunday, 4 March 2018, father and daughter, Sergei and Yulia Skripal, were found collapsed outside a restaurant in the city of Salisbury. It was initially reported that the pair had been exposed to a nerve agent known as ‘Novichok’. The name ‘Novichok’ means newcomer in Russian and applies to a group of advanced nerve agents which were initially developed by the Soviet Union in the 1970s and 1980s.

It is noted that at the time of the hearing in this case both Mr and Ms Skripal were in hospital under heavy sedation and were unable to provide consent to any treatment or medical procedures. It is likely that the poison will cause long-term and extensive damage to the pair, which will, in turn, affect their mental capacity.

On Tuesday, 20 March 2018, the Secretary of State made an urgent application to the Court of Protection seeking authority to collect fresh blood samples from Mr and Ms Skripal. It was proposed that the samples be sent to the Organisation for the Prohibition of Chemical Weapons (‘OPCW’) to enable further testing for the chemical ‘Novichok’ and to allow for further analysis of the nerve agent. The Secretary of State also applied for welfare orders to enable access to Mr and Ms Skripal’s medical records, post the date of the attack, the purpose of which was to enable the relevant NHS Trust to aid their investigations.

The case was heard over three days (20, 21 and 22 March 2018) and was resided over by experienced Court of Protection Judge, Mr Justice Williams. In considering the case, Justice Williams had to pay careful attention the principles of the Mental Capacity Act 2005, in particular s1(5) of the act which requires that ‘every decision made by the Court of Protection on behalf of a person who lacks mental capacity to make that decision at that specific moment to be made in that person’s best interests’.

In considering a person’s best interests, consideration must be given to Section 4(6) of the MCA which instructs that those assessing must consider, so far as is reasonably ascertainable:

  1. The person’s past and present wishes and feelings
  2. The person’s beliefs and values that would be likely to influence his decision if he had capacity
  3. Any other factors that he would be likely to consider if he were able to do so

As Mr and Ms Skripal were heavily sedated and unable to communicate, the Judge was unable to consider the pair’s wishes or feelings in respect of the taking of their blood and the disclosure of the medical records. Furthermore, neither have relatives in England and the Home Secretary had not been successful in making contact with any of their relatives in Russia.

In the circumstances, the court had no option but to make some assumptions about what the Skripal’s wishes may have been. The Mental Capacity Act provides guidance for these types of situations which extends beyond the actual wishes of the person lacking capacity. It allows the court to make assumptions about what beliefs and values may have been and what other factors might influence that person in making a decision.

Given the absence of the Skripal’s wishes and feelings or any family members to provide the same, it was essential for the court to weigh up their assumed wishes and feelings and best interests alongside  the risks attached to the taking of the blood samples. The court invited evidence from medical experts who confirmed that the taking of blood from both parties would be a very straightforward process with very little risk of there being any complications. The court also considered that the scope of the disclosure of medical documents was relatively narrow, therefore, any invasion on the Skripal’s privacy would be very minimal.

Taking into consideration all of the above, Justice Williams determined as follows:

“Most reasonable citizens have a quite acute sense of justice and injustice…. I accept that such a person would believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated…. and the reasonable citizen including Mr Skripal and Ms Skripal believe that justice should be done.”

In conclusion, the court was in favour of the taking and sharing of the blood samples and sharing of the medical records with the OPCW. Furthermore, due to the ‘uniqueness’ of the application in question, the court determined that the judgment would be published despite the fact that the hearings were heard in private given the facts of the case and the identity of the parties had been widely published in the media.

The case emphasises the ever-growing importance of the Court of Protection in everyday life and the role it plays in ensuring that the human rights of individuals in a position of vulnerability are protected. Given the significant media attention of this incident and the domestic and international consequences of it, the role of this court is likely to grow even further.

Stephensons have a specialist team of solicitors covering cases nationwide and have the benefit of a legal aid contract (subject to eligibility).  Should you require any assistance or advice on any matter which may relate to the Court of Protection or community care, please do not hesitate to contact us on 0175 321 6399.

By Jamie Gordon, trainee solicitor

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