Reviewing The Skripal Judgment
The Law Of...Considering A Reasonable Citizen
On 22 March 2018 Mr Justice Williams, sitting in the Court of Protection, handed down judgment in relation to Sergei and Yulia Skripal. Mr Skripal and his daughter have been at the forefront of most media outlets since being hospitalised following exposure to a deadly nerve agent at the beginning of March 2018.
It is still unknown exactly what long-term impact their exposure will have. Mr and Ms Skripal were heavily sedated after being hospitalised and, as such, were unable to make any decisions in regards to their own welfare or treatment. The Organisation for the Prohibition of Chemical Weapons (OPCW) was invited to assist the UK Government in verifying the type of nerve agent used. As part of this process, it is necessary for the OPCW to obtain fresh blood samples, along with requiring access to the previous samples and to Mr and Ms Skripal’s medical records.
The question before the court was whether or not Mr and Ms Skripal have capacity to consent, and if not, whether allowing the above would be in Mr and Ms Skripal’s best interests.
Aimee Last, Trainee Solicitor, explains the judgement.
The hearing itself was held in private over the course of three days. It was noted that the ‘General Rule’ for hearings in the COP has always been that they would be held in private. However, following the transparency pilot which ended last year, most hearings now take place in public with a ‘transparency order’ in force, stopping disclosure of any information which would identify a party to the proceedings or their location/address.
Due to the sensitive nature of this matter, it was decided by Mr Justice Williams that Mr and Ms Skripal’s case would be heard in private – although the Judge did exercise the power under the Court of Protection Rules 2017, which allows judgments to be published.
The Issue Of Capacity
As Mr and Ms Skripal remained unconscious due to their heavy sedation and the effects of the nerve agent, it was concluded at the beginning of the judgment that they did not have capacity to make the requisite decisions and/or give consent.
Under s2(1) of the Mental Capacity Act 2005 "a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain".
Due to the fact that Mr and Ms Skripal were unable to communicate their opinion, and with no way to assist them to do so, it was determined that Mr and Ms Skripal lacked capacity. This is the position regardless of whether or not Mr and Ms Skripal were likely to regain capacity in the future.
Under Rule 1.2 of the Court of Protection Rules 2017, and pursuant to the Mental Capacity Act 2005, the Court must have regard to, and facilitate the participation of, Mr and Ms Skripal to the extent possible. With this in mind, Mr Justice Williams joined Mr and Ms Skripal as parties to the application and appointed them a Litigation Friend, the Official Solicitor, who advocated on their behalf.
Under section 1 of the Mental Capacity Act 2005, where a decision is to be made for a person who lacks capacity, a decision must be made in that person's best interests.
Mr Justice Williams listed the relevant considerations given in Section 4 of the Mental Capacity Act 2005 and the pertinent case law in this area in his judgment. He noted that the question is not just in relation to whether allowing the disclosure requested would be of medical advantage to Mr and Ms Skripal; it also required consideration of all other factors which would make up a best interests decision. These included:
- Mr and Ms Skripal’s past or present wishes and feelings
- Mr and Ms Skripal’s beliefs and values
- Any other factors they would have considered if they were able to do so
Ultimately, Mr Justice Williams did not have enough evidence before him to make determinations on the first two points above. Instead, he considered the position of a ‘reasonable adult’ and stated that he would approach the situation based on: "The absence of any evidence to show that either Mr Skripal or Ms Skripal was not reasonable citizens".
Through standing in the shoes of a ‘reasonable citizen’ Mr Justice Williams carried out an assessment of the pros and cons involved in disclosing the information and samples requested. Among the pros was the view that the OPCW is an independent body with rigorous and robust procedures, and that it is unlikely that an individual would refuse to support such involvement if it were available.
Another point made was that most persons have a well-developed sense of justice and would normally want to assist as much as possible where a crime has been perpetrated. As a result, it was determined that it would be in Mr and Ms Skripal’s best interests to provide the disclosure.
The cons identified in the best interest analysis were in relation to increased publicity and any potential impact of actually taking the sample. However, as this matter has been prevalent in media since the attack, and following reassurances from the treating consultant, it was considered that neither of those issues would have a detrimental impact on Mr and Ms Skripal.
"It is interesting to note the test that was used by Mr Justice Williams which used a ‘reasonable citizen’ as a comparator to determine Mr and Ms Skripal’s wishes, feelings, beliefs and values as each person is fundamentally different and has their own position on medical procedures, privacy and so on."
"It seems to me that this is a test which could only be used in the most extreme of circumstances where the facts of the matter call for the utmost urgency, as was the case here."
Do You Have Concerns Over Capacity?
If you are currently going through legal issues which pertain to legal capacity, be it over yourself or a vulnerable individual, then our COP legal team are here to assist you. Our specialists can explain everything you need to know about capacity and what is in the best interests of the individual.
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