It would be difficult not to be aware of the poisoning of Sergei and Yulia Skripal. Fewer will be aware of the role of the Court of Protection in the unfolding drama.
Months after the attack, MI6 continue to look after Sergei and Yulia, and whilst there are inevitably issues of criminal law, including attempted murder, and assault, and all the intrigue that accompanies the fervent denials from the Kremlin, on a more fundamental level, issues of mental capacity and medical consent have given rise to the involvement of the Court of Protection.
In well recited facts, after the nerve agent Novichok was smeared on the handle of Mr Skripal’s front door, both Sergei and Yulia were taken to intensive care after falling unconscious on a park bench in Salisbury on 4 March 2018.
Whilst under heavy sedation, neither were able to provide consent to any treatment or medical procedures. As part of the overall investigation, the UK Government invited the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send experts to the United Kingdom ‘to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38( e).’ In order to carry out these enquiries, the OPCW needed to take fresh blood samples from Sergei and Yulia. A common misconception is that your ‘next of kin’ can provide this consent, they cannot, and whilst the answer may seem obvious in these circumstances, this doesn’t mean consent should be taken for granted.
An urgent application was made to the Court of Protection by the Secretary of State for the Home Department under the Mental Capacity Act 2005 for ‘personal welfare orders’ in respect of Sergei and Yulia. The application requested a declaration that it would be lawful for the Salisbury NHS Trust Foundation authority to collect fresh blood samples from Sergei and Yulia to enable further testing of the chemicals contained within their blood and to undertake in-depth analysis of the presence of the nerve agent, and for access to their medical records from the relevant NHS Trust.
Mr Justice Williams was asked to decide whether it was lawful for the NHS Trust to take blood samples and disclose relevant medical records to the OPCW and for these blood samples to be subject to testing. Emergency treatment does not require prior legal approval, and the judgement in the case also 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.
Mr Justice Williams found that 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 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 Sergei and Yulia’s past or present wishes and feelings to consent to the proposed procedures and disclosure of the medical records, as required by section 4(6) of the Act. In the absence of any evidence to the contrary, the Judge said he would approach the matter on the assumption that Sergei and Yulia were reasonable citizens, and ‘most reasonable citizens’ would ‘want to secure the best information about what has happened when a serious crime is alleged to have been committed’. The Judge noted that this would ‘very likely’ extend to cooperating with investigations, the release of medical records, and support the effective operation of international conventions on the basis that “no-one whether an individual or a State is above or beyond the reach of the law”.
Further, giving judgement in the case (Secretary of State for the Home Department v Skripal [2018] EWCOP 6), Mr Justice Williams noted that the obtaining the blood samples was in general terms a routine mater and not deemed to be harmful to Sergei and Yulia, and the Court was very much “in favour of taking the samples” having evaluated the overall balance of the best interest’s decision making under the Mental Capacity Act 2005. Mr Justice noted that there was nothing substantial to militate against the consent of the Court. Whilst the use of their medical records was an instruction of privacy, it was not an intrusion that went against their best interests.
The matter was heard in private however it was recognised that the reasons underpinning the application were “unique” and of “the utmost gravity” hence the judgment was published in accordance with the relevant procedural rules, the recently updated Court of Protection Rules 2017. The judgment was published under COPR 4.2(2)(b). Secretary of State for the Home Department v Skripal [2018] EWCOP 6 is available both on BAILII and the Judiciary website, and the judgment carries a warning that any failure to preserve their anonymity would be a contempt of court. A pdf copy be found here: https://www.judiciary.gov.uk/wp-content/uploads/2018/03/sshd-v-skripal-and-another-20180322.pdf
Whilst this case has garnered many headlines, we deal with applications to the Court of Protection regularly, and the Court of Protection are making best interest decisions for people every day, such as where someone should live, whether they should have a particular operation or treatment, and who should manage their finances, if the individual does not have capacity to do this themselves. This could be for a variety of reasons, such as illness, disease, or accident and injury.
Last week was also Mental Health Awareness Week, and for those of us Corrie fans, the long running soap portrayed the suicide of Aidan Connor. In the episodes since, we have seen Aidan’s family come to terms not only with his death, but also that Aidan left a Will, the content of which has come as something of a surprise and resulted in a visit to the offices of local Solicitor, Adam Barlow.
As a businessman, Aidan has provided in his Will as to who should inherit his share of the factory. Aidan is in a minority in preparing his Will, and whilst Aidan had, as we all do, the testamentary freedom to provide for who he wished, there is the possibility for his will to be challenged, possibly under the Inheritance (Provision for Family and Dependants Act) 1975 if Eva reveals the true identity of little baby Susie Barlow.
Carla, the thwarted business partner, may seek to argue that Aidan’s Will is not valid on the grounds of a lack of testamentary capacity. The test for this, laid down in Banks v Goodfellow (1870) and since developed, is essentially that the Testator must understand that they are making a Will and the effect of that Will, know the nature and value of their estate, understand the consequences of including and excluding certain people under their Will, and not be suffering from any ‘disorder of mind’ which may influence their views. Given that we have already been told that Aidan made the Will before the factory became successful again, and given Aidan’s apparent frame of mind, we may see more on this in the weeks to come…….
Inevitably the funeral scenes will see us shortly reaching for the tissues, and the cost of funerals, according to insurance firm Sunlife, have risen 70% in a decade. Aidan may have had a funeral plan in place, else funds will need to be found from his estate to settle the costs. Cremation still remains both more popular and cheaper than burial, and for those looking for something different, ashes can now be turned into diamonds, paperweights, or exploded in a firework. ‘Green’ burial grounds are also growing in popularity, with biodegradable coffins, and loved ones planting trees as memorials as opposed to headstones.
And what of the businessman’s digital legacy? The Digital Legacy Association are currently trying to produce guidelines on creating a digital Will, setting out people’s wishes for what happens to their social media profiles after death. Most are unaware that you can now provide digital next of kin such as Facebook’s legacy contact or Google’s inactive account manager functions. Both Facebook and Instagram also allow family and friends to request the deceased’s account is turned into a memorial page, while Twitter says loved ones can request the deactivation of a “deceased or incapacitated person’s account”. Perhaps we will also see some reference to these on the cobbles.
A BBC article this week noted that Scientists are expecting what they term a ‘spike’ in deaths in the coming years. The Dying Matters Coalition, with people living longer and in worse health, want to us to talk more about wishes towards ends of life, including where we want to die. “Talking about dying makes it more likely that you, or your loved one, will die as you might have wished. And it will make it easier for your loved ones if they know you have had a ‘good death’,” the group of end-of-life-care charities said. From the research provided, most people want to die at home, but the reality is that most of us die in hospital, with over half of deaths last year in the UK taking place in hospital.
Whether you need assistance with preparing a Court of Protection application, Lasting Powers of Attorney, Wills, challenging the provisions of a Will, or dealing with the administration of an estate, the private client team here at WHFLP can assist.
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Published 29/05/18