The Court of Protection has recently been involved in the case of Skripal and exposure to the chemical nerve agent Novichok.[1]

Urgent applications in the Court of Protection

As part of the investigation into the chemicals involved in the poisoning in Salisbury, the Secretary of State issued urgent applications in the CoP seeking personal welfare orders under the Mental Capacity Act 2005 (MCA) which would allow blood samples to be collected from Sergei and Yulia Skripal who were both unconscious and could not consent.

The treating NHS Trust took a neutral position and had indicated that an order was required in order for them to facilitate blood tests and access to patient records and blood samples.

Best interests decision-making

Independent Mental Capacity Advocates (IMCAs) were appointed in the absence of other individuals who could be consulted on behalf of the Skripals. Decisions regarding clinical matters including emergency treatment had been dealt with by reference to best interests. However, the wider legal and political purpose of the tests requested by the Organisation for the Prohibition of Chemical Weapons (OPCW) went beyond that emergency treatment and the Secretary of State sought the CoP’s involvement.

In carrying out an evaluation of the best interests decision-making process under the MCA, the CoP accepted that it could not ascertain the Skripals past or present wishes or feelings and therefore the appropriate response was to deal with the matter on the basis of how ‘a reasonable citizen would approach matters’.

The court heard that samples taken from living individuals are of more scientific value than post-mortem samples.

The Skripals’ privacy and safety

Consideration was given to risk of harm and intrusion into the Skripals’ privacy.

Although he was not specifically addressed on the issue, the judge considered the physical safety of the poisoning victims and any further risk the involvement of OPCW might create. He referred to measures in place to ensure their physical safety as confirmed by the Secretary of State.

In addition to limiting disclosure of the medical records to those generated from the date the Skripals fell ill, it was also appropriate to direct that records should be destroyed or returned at the conclusion of the investigation.

Court of Protection judgment

In a hearing conducted in private between 20-22 March, Mr Justice Williams directed that an approved version of the judgment (protecting the anonymity of the witnesses) should be published in view of the public interest in the case. In that judgment he referred to the unique and exceptional circumstances of the application.

Declarations pursuant to section 15 Mental Capacity Act 2005 and Orders pursuant to section 16 of the MCA were made that is was lawful and in the best interests of the Skripals for blood samples to be taken and provided to OPCW along with existing samples for testing and for medical notes to be provided.