The alleged poisoning of Sergei Skripal, a former Russian spy now living in England, and his daughter Yulia, in Salisbury earlier this month has been prominently reported in the news. Investigations into the nature of the military-grade nerve agent allegedly used on them continue, with scientists from the Organisation for the Prohibition of Chemical Weapons now involved.

But what has this got to do with the Court of Protection? The answer is that, while Skripal and his daughter remain in hospital under heavy sedation, they lack the capacity to give consent to the taking of blood samples needed for the OPCW’s lab tests. Therefore, the court must decide whether such medical intervention is in their best interests.

The answer may seem obvious, but that doesn’t mean consent should be taken for granted. The case provides an interesting and topical example of the Court of Protection’s work, as well as covering issues of transparency, jurisdiction and the rule of law.

The story so far

On Sunday 4 March, Skripal and his daughter were found on a park bench in Salisbury town centre in a state of near-unconsciousness. They were taken to hospital by emergency services, where they remain in a serious condition. (A policeman, Nick Bailey, was also exposed and taken for emergency treatment, but he has since been discharged from hospital.)

Investigations by experts from the UK’s Defence, Science and Technology laboratory at Porton Down concluded that they had been poisoned with Novichok, a military grade nerve agent of a type developed by Russia. On that basis, the UK government has suggested that the poisoning was either a direct attack by the Russian government (in effect an attempt to assassinate its former agent) or that Russia has culpably lost control of the nerve agent which it developed.

Having officially blamed Russia for the attack, the UK government subsequently took a number of measures including the expulsion of 23 Russian diplomats. There has been international condemnation of Russia’s alleged conduct, and support for the UK’s position. Meanwhile, Russia has continued to deny its involvement, contending instead that the UK should first have provided evidence to Russia and sought its ‘clarification’ over any ‘doubts or concerns’ under the international Chemical Weapons Convention (1997) which it is accused of having breached. The UK has refused, and instead has invited the OPCW, as an independent and internationally recognised body of experts, to send its own scientists to independently verify the Porton Down analysis of the nerve agent used.

The case inevitably raises issues of criminal law, including offences of attempted murder, assault, administering a noxious substance and breaches of the Chemical Weapons Act 1996, all of which have been discussed in a comment post on Crimeline Complete: The Salisbury Chemical Weapon Attack.

However, it is the issues of mental capacity and medical consent which have given rise to the involvement of the Court of Protection.

The hearing: transparency

The first issue for the court was a matter of transparency. Should the hearing be conducted in open court?

Under the recently updated Court of Protection Rules 2017, the general rule (under COPR 4.1) is that hearings are to be in private, subject to the court’s power to decide instead to hold them in public (under COPR 4.3(1)(a)) or to publish information from or about the hearing (under COPR 4.2). But under a supplementary practice direction (PD4C 2.1) the court should ‘ordinarily’ make an order for the hearing to be in public unless there is ‘good reason’ for not doing so.

Mr Justice Williams commented, at para 9, on this mild absurdity. “The apparent tension between the wording of the Rule and the Practice Direction is not a matter which I am able to or need to resolve today.” Given the “unique and exceptional circumstances” of the case, including the sensitive nature of the issues and the evidence, and the identity of the individuals involved, he concluded that a public hearing “would have potentially inhibited the ability of the court to explore the issues” and therefore concluded that the hearing would be in private but the judgment would be published under COPR 4.2(2)(b).

That has now been done, and Secretary of State for the Home Department v Skripal [2018] EWCOP 6 is available both on BAILII and the Judiciary website. The names of the main witnesses (including medical or scientific experts and civil servants) have been anonymised using letters of the alphabet. The judgment carries a warning that any failure to preserve their anonymity would be a contempt of court.

The issues

The case took the form of an application by the Home Secretary for personal welfare orders in respect of Skripal and his daughter under the Mental Capacity Act 2005, seeking declarations that it would be lawful for the NHS Trust which currently has care of them to take a blood sample for the OPCW to test, and to disclose relevant medical records to OPCW. Neither of the Skripals was in a position themselves to give such consent.

Of course, they had already been subject to medical treatment, as emergency patients. Emergency treatment does not require prior legal approval. The judgment refers to Independent Mental Capacity Advocates (IMCAs) having been appointed by the NHS Trust to assist with best interests decisions on clinical matters, in the absence of anyone known to the patients who could be consulted on their welfare. The role of the MCA was created under the Mental Capacity Act 2005, to provide a legal safeguard for patients lacking capacity. IMCAs can assist in making other types of decisions in an individual’s best interests but the additional procedures required by the OPCW experts were not part of the essential emergency treatment, and in any event had a wider legal/political purpose, and hence required the approval of the court.

The taking of blood samples was unlikely to adversely affect the Skripals’ condition, the judge said, and there were a number of reasons why, weighing the pros and cons, it would be in their interests to allow it. The concept of a patient’s ‘best interests’ was, under existing case law, a wide one and included (under a Code of Conduct issued by the Lord Chancellor under ss 42-43 of the Mental Capacity Act 2005) ‘the effect of the decision on other people … or the duties of the responsible citizen’. So the evaluation involved a broad survey that went beyond purely medical benefit and included ‘every consideration that might bear on what is in their best interests’. That included, under s 4(6),

‘(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.’

On the evidence before the court, the judge was unable to ascertain the Skripals’ past or present wishes and feelings. However, in the absence of any evidence to the contrary, the judge said he would approach the matter on the assumption that the Skripals were reasonable citizens. He said, at para 31:

‘Most reasonable citizens in my experience have a quite acute sense of justice and injustice. Most want to secure the best information about what has happened when a serious crime is alleged to have been committed. 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; that where possible answers are found as to who, how and why a crime was perpetrated, that where possible truth is spoken to power; that no-one whether an individual or a State is above or beyond the reach of the law and that in these turbulent times what can be done to support the effective operation of international conventions is done.’

As well as providing a non-clinical justification for the giving of consent by the court, this passage, with its references to the rule of law, along with the very fact of the court being involved in the decision in the first place, offers a very pointed and emphatic contrast to the alleged conduct of a foreign state or individual seeking to effect an extra-judicial killing on British soil.

The OPCW was, the judge said, an independent organisation with the support of 192 nation states and one of whose primary tasks was providing technical assistance in relation to chemical weapons issues. Their procedures appeared to be rigorous and robust and their inquiry could be expected to be entirely objective and independent. It might confirm the current conclusions but the possibility could not be ignored that it might reach a different conclusion.

Quite apart from the wider legal and political issues, there might be some medical benefit in the OPCW tests, in that they might shed further light on the agent involved and thus the treatment to be administered.

The judge tried, at para 35, to consider what factors might militate against the granting of consent by the court, but there did not seem to be anything substantial. The involvement of the OPCW might involve further publicity about the Skripals but it was unlikely to add to the existing risks to their physical safety. The release of their medical records involved an intrusion into their privacy but, provided it went no further than necessary and processes to maintain their confidentiality were in place, it was not an intrusion that went against their best interests. Copies could be provided on the basis that they would be destroyed or returned at the conclusion of the inquiry.

The overall balance fell clearly in favour of consent being given to the taking of samples and the disclosure of the medical notes.

Comment

As so often happens in medical intervention cases, the law is both applied and developed by the court in making its decision. This is an unusual case, but it has had the effect of both interpreting and extending the scope of ‘best interests’ decisions. In particular, while it is not uncommon to consider a patient’s ‘past and present wishes and feelings’, their ‘beliefs and values’ and ‘other factors’ under section 4(6) of the Act, the idea that ‘best interests’ should include broad support for the rule of law and the pursuit of criminal justice is new. At any rate, none of the cases cited in the judgment appear to have included such factors.

Add to that the intense political and diplomatic scrutiny on the process, and the fact that the hearing itself could not proceed in open court for reasons of security and the sensitivity of the subject matter, and you can see why, although the decision itself is neither difficult nor controversial, it was important to give clear and transparent reasons for it.

We now await the OPCW’s investigation, and further developments on the political front. The Court of Protection’s role in these events may eventually merit no more than a footnote in history, but the decision will remain interesting for legal reasons.

Featured image via Shutterstock.