Chemical Weapons and the Court of Protection

Why the Court of Protection is not just about registering Lasting Powers of Attorney

One of the most prominent news stories of the year so far has been the apparent poisoning with a chemical nerve agent of Sergei and Yulia Skripal in Salisbury on 4th March.

While news reports centred on who might have been responsible for the attack, the incident also lead to a hearing at the Court of Protection which, whilst less prominent in the news was of some interest to lawyers.

The hospital in Salisbury provided emergency medical care to the Skripals on the basis of what was best for them but the Organisation for the Prohibition of Chemical Weapons (OPCW) then wished to collect blood samples from them together with information about their DNA and medical records. The DNA details were required to establish that the samples of the nerve agent being analysed at the government's Portland Down laboratories were the same as those with which the Skripals had come into contact.

The Health Authority in Salisbury took the view that because the Skripals were unconscious and therefore unable to give their consent they could not simply agree to blood samples and DNA being taken or to release their medical records. The Skripals (like, unsurprisingly, most of us) had not given any advance indication of their wishes with regard to requests like this in the event that they were subject to a chemical attack. The Secretary of State for the Home Department therefore made an application to the Court of Protection for an order as to whether what the OPCW was requesting should be allowed.

The case (Secretary of State for the Home Department v Skripal) came before Mr Justice Williams towards the end of March and again revolved around his consideration of the Skripals' best interests. He considered, in accordance with the relevant statutory code of practice, the effect of the decision on other people and what a responsible citizen might consider their duty to be if they were able to do so. He came to the conclusion that a reasonable citizen would believe that justice should be done and that the conduct of the investigations proposed by the OPCW would further that general aim. He therefore considered that granting an order would be in the best interests of the Skripals and gave permission for the requested samples to be taken and medical notes disclosed. However, he felt that it was in the Skripals' best interests that only their medical notes from the date of the incident onwards should be revealed.

I always recommend that clients should consider making Lasting Powers of Attorney which enable them to appoint somebody of their choice to make important decisions for them should they lose the capacity to do so. There are two types of a Lasting Power of Attorney, one relating to financial affairs and the other relating to health and welfare (such as medical treatment). The Skripal case is an extreme example of the benefits of having a Health and Welfare Lasting Power of Attorney in place.

The case also demonstrates, however, that the Court of Protection is not just about registering Lasting Powers of Attorney. It has wide powers to intervene to protect the best interests of people who lack capacity in a wide range of circumstances.