The Skripal case – unravelling the unusual and challenging mental capacity issues

On behalf of Attwaters Jameson Hill posted in Trusts & Probate on Thursday, April 19th, 2018

Over recent weeks, the twists and turns in this high-profile case have made daily media headlines. The events that unfolded on a bench in a park in Salisbury rapidly became first a national and then an international political issue, as Colonel Sergei Skripal and his daughter, Yulia, were hospitalised after being poisoned by what is alleged to be a Russian-made military-grade nerve agent.


What has this to do with the Court of Protection?

It’s highly unusual for the Court of Protection (CoP) to find itself being approached by the Secretary of State for the Home Department in connection with a major international incident of this kind. However, given the need to establish what substance had poisoned the Skripals, the Organisation for the Prohibition of Chemical Weapons (OPCW) was invited by the government to carry out a technical evaluation of the chemicals used, and needed to take blood samples from them both for analysis. The Salisbury NHS Foundation Trust, following the rules that normally apply, indicated that a court order would be needed before this could happen.

At this juncture, the Secretary of State issued an application to the CoP for personal welfare orders, seeking permission for blood samples to be provided to the OPCW, together with their medical notes, and for samples taken earlier to also be made available for testing.


The issues at stake

As the Skripals were unconscious at this time, they lacked the necessary mental capacity to give medical consent to blood samples being taken. The NHS Trust didn’t have access to appropriate family members or representatives who could, in the normal course of events, be consulted about their wishes. So, following the usual procedure in such cases, they appointed an Independent Mental Capacity Advocate to help make the decision, as it went beyond the scope of emergency medical treatment.

The Mental Capacity Act requires consideration to be given to the likelihood of the Skripals regaining capacity, and whether decisions could be delayed to allow this to happen. However, in this case time was of the essence, and it was considered likely that the tests could play a major role in ensuring the best and most appropriate treatment was administered. It was assumed that as the Skripals were ‘responsible citizens’ they would want to help the investigations in any way they could.

As Judge Williams was unable to ascertain their habitual residence, for the purposes of the case before him, he treated the Skripals as habitually resident in England and Wales. Whilst Sergei holds a British passport, his daughter remains a Russian citizen.

Having heard evidence from witnesses from Porton Down, the Foreign Office and the Home Office, the CoP ruled that it was lawful and in the Skripal’s best interests for the NHS Trust team to take blood samples and pass them to the OPCW, together with other medical evidence. Interestingly, the CoP only agreed to the disclosure of the medical notes from 4th March, the day they fell ill, onwards. This follows the usual rules governing the definition of relevant disclosure. In addition, the court ruled that the records were to be destroyed or returned at the end of the investigation.


What can we take from this case?

It’s not every day that the CoP gets involved in such a high profile and unusual matter that quickly became the lead story on nearly every UK news channel, and many overseas ones as well.

It does, however, serve as a useful reminder that medical emergencies can and do happen at any time and at any age, requiring close loved ones to step in and make best interest decisions. It’s easy to assume, especially where older people are concerned, that mental decline would be a slow process, but as this case shows, it can also be a swift and devastating occurrence brought about by injury or accident.

It’s also comforting to know that NHS Trusts have strict guidelines in place that they must adhere to in such circumstances. It’s intriguing to speculate about what might have happened if this case had involved a UK citizen in Russia, would the Russian State have become involved?


How a Lasting Power of Attorney can help

In the same way that a Will protects your loved ones after you pass away, a Lasting Power of Attorney (LPA) is designed to protect your interests if you lose the ability to make financial or care decisions on your own behalf.

Making an LPA allows you to choose someone you know and trust to make important decisions should you be unable to do so.

Most people don’t think about putting an LPA in place because they automatically assume their loved ones could step in and would be able to deal with their financial affairs and decisions about their health and welfare. However, if you lose mental capacity and haven’t made an LPA, a family member would have to apply to the CoP to be appointed as your Deputy, a process that is far more complex and expensive than creating an LPA. It is also true to say that the intervention of the CoP in matters involving ordinary citizens is unlikely to be as swift as it was on behalf of the Skripals.

If you’d like to know more about putting an LPA in place, then please do get in touch. You can call us on 0330 221 8855 or email us at enquiries@attwaters.co.uk.


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