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Home > Case updates > Court of Protection authorised the taking of blood samples to be passed to the Organisation for the Prohibition of Chemical Weapons

Court of Protection authorised the taking of blood samples to be passed to the Organisation for the Prohibition of Chemical Weapons

9 April 2018, by Bethan Harris

Bethan Harris

SSHD v Skripal [2018] EWCOP 6, 22 March 2018, Williams J

The Secretary of State for the Home Department (SSHD) applied for orders to authorise the taking of blood samples to be passed to the Organisation for the Prohibition of Chemical Weapons (OPCW) and tested, and disclosure of relevant medical records. Mr Skripal and Ms Skripal were unconscious in hospital at the time. They were represented by the Official Solicitor.

On consideration of their best interests, it was held to be neither practicable nor appropriate in the special context of the case to consult with relatives of Mr Skripal and Ms Skripal who might fall into s 4(7)(b) MCA 2005. As to s 4(6), it was not possible to ascertain their present wishes and feelings and there was little or no evidence of their beliefs and values. This caused the court to approach the case on the basis of assumptions as to how a reasonable citizen would approach matters, there being no evidence that Mr Skripal and Ms Skripal were not reasonable citizens. The court took into account the nature of the OPCW’s role and that its enquiry could be expected to be objective and independent and likely to produce material that would help to discover what happened to them.

It held that in any event was “in the broad parameters of their best interests” for it to be known as far as possible what happened to them.

There was also a possibility, although slight, that the test might uncover something of medical benefit for the patients.

The court considered whether there was a requirement to notify the Russian consular authorities as a result of Arts 36-7 of the Vienna Convention on Consular Relations 1963.  Reference was made to guidance in the family case of Re E (A Child) [2014] EWHC 6 (Fam), but concluding that there was no such legal  requirement in the Court of Protection and good practice in this area may require consideration in another case.

The declarations and orders sought were granted.

Comment

This was an usual set of circumstances in many ways. There was only a slight prospect of medical benefit for the Skripals and there was little or no evidence of their wishes and feelings past or present, or relevant beliefs. The court considered best interests in the widest sense. In the face of a lack of evidence of wishes and feelings, it resorted to the approach of asking what the ordinary reasonable citizen would want.

The judgment contains a reminder of the principle that best interests are not confined to the person’s self-interest but include the altruistic wishes the person may have had and factors they might consider if they were able to such as the duties of a responsible citizen, with reference to Re G (TJ) [2010] EWHC 3005 (COP), the Code of Practice para 5.47-8, and Aintree University Hospital NHS Foundation Trust v James [2013] UKSC 67 [2014] AC 591.

The full judgment is available here: SSHD v Skripal [2018] EWCOP 6, 22 March 2018

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