Suspected Nerve Agent Attack Investigation Requires Court of Protection Involvement
There has been fast media attention covering the suspected nerve agent attack on both Sergie and Yulia Skripal. Hannah Rowlatt from our Court of Protection team comments on this matter reaching the Court of Protection to seek a Court Order authorising the collection of fresh blood samples and analysis of both individual’s medical records to assist with instigations.
On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury and tests carried out concluded that they had been exposed to a nerve agent. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. At this time they were both heavily sedated and were unconscious.
The UK government invited the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the UK ‘to assist in the technical evaluation of unscheduled chemicals’. This in effect is to independently verify the analysis previously carried out. The OPCW needed to take fresh blood samples and analyse both Mr and Ms Skripal’s medical records.
As Mr and Ms Skripal were both unconscious and were unable to consent to the OPCW taking such action, an urgent welfare application was made to the Court of Protection. The Order was sought on an urgent basis as Mr and Ms Skripal were critical but stable; it was not inconceivable that their condition could rapidly deteriorate.
As both Mr and Ms Skripal were unconscious, they lacked capacity to make the decision whether or not to consent to giving blood samples. As both lacked capacity to make the decision the Judge had to apply the Best Interests Test.
The Best Interest Test takes into consideration multiple factors to determine whether an action would be in an individual’s best interest. The test includes:
- Whether the individuals are able to participate in the decision and whether there is any other person to be consulted with. It is likely that Mr and Ms Skripal would remain unconscious at the time that the samples were needed and therefore the matter could not be delayed.
- The beliefs and values that would be likely to influence the decision if Mr or Ms Skripal had capacity. An individual subjected to such an attack with personally catastrophic consequences would want to see it fully and properly investigated and that all appropriate steps to identify the perpetrators.
- The detriment to Mr Skripal and Ms Skripal in authorising the action. The detriment is arguably negligible. In medical terms the taking of blood through the sited cannula will be no different from taking blood for other purely medical purposes and the OCPW has rigorous processes for ensuring confidentiality.
- There is no alternative less restrictive means of addressing the issue.
The Judge granted the orders commenting that:
“I am satisfied it is in the broad parameters of their best interests for it to be known as far as may be possible what occurred to them”
Should you require further information on the application of the Best Interests Test in the Court of Protection, contact Hannah Rowlatt a Solicitor in our Vulnerable People and Court of Protection team.