The poisoning of Mr Skripal and his daughter has been heavily reported in the media of late. What has been less public however is what is going on in the background at the Court of Protection.
As part of the wider investigation into the attack, the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom ‘to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).’ In order to conduct their enquiries the OPCW wanted to collect fresh blood samples from Mr and Ms Skripal to undertake their own analysis as well as to consider the medical records of Mr and Ms Skripal detailing the treatment they had received since their hospital admission. Both of these actions require consent from the individuals affected – neither of which were able to give such consent because they were unconscious.
Many people believe that your “next–of-kin” can give consent on your behalf but this is not correct. The state (in this example the NHS Trust Foundation) have to make a best interest decision on your behalf and in doing so must consider the wishes and feelings of those interested in your welfare and if there are any matters of public interest. In some scenarios this is straight forward in others the decision needs to be made by a Judge in the Court of Protection. In the matter of the Skirpal’s an urgent application was made to the Court of Protection by the Salisbury NHS Trust Foundation. To seek determinations as to whether it was lawful for the NHS Trust to take a blood sample to disclose the relevant medical records to the OPCW and for the blood samples taken from Mr and Ms Skripal to be subjected to testing.
Mr Justice William stated in his judgment “The overall balance in the evaluation of the best interests of Mr Skripal and Ms Skripal assessed on a broad spectrum and taking account of the pros and cons of taking and testing the samples and disclosing the notes in my judgment falls very clearly in favour of the taking of the samples, their submission for analysis by OPCW and the disclosure of the medical notes to aid that process. In so far as it is necessary, it is also lawful and in their best interests that the existing samples are provided to OPCW for further testing.”
Whilst this is a high profile story that has shocked the nation the function of the Court of Protection in making best interest decisions for people is something that happens every day; best interest decisions such as where someone should live; whether they should have a particular operation or treatment; who should manage their finances; DNA samples and access to a loved one or friend, need to be made if the individual does not have the capacity to make such a decision themselves. An individual may not be able to give consent due to illness, disease, disaster, accident or injury.
Our specialist Court of Protection team can advise on such matters and whether it is necessary or appropriate to make an application to the Court of Protection for authority, approval or to challenge a decision made by a government department.
If you need any advice call our Specialist Team on 0800 088 6004.