Testing for Novichok – the Court of Protection intervenes

The case of the poisoning of Sergei and Yulia Skripal in March 2018 has had significant media attention. The domestic and international consequences following this attack have been widely reported in the media.

Sergei and Yulia Skripal (father and daughter) were poisoned in Salisbury with a chemical weapon that has been reported to be the Novichok nerve agent. Both remain in hospital under heavy sedation currently unable to provide consent to any treatment or medical procedures. It is likely that the poisoning will have caused long-term and extensive damage affecting their mental capacity.

An urgent application was made to the Court of Protection by the Secretary of State, for authority to collect fresh blood samples from Mr and Ms Skripal to enable further testing of the chemicals contained within their blood and to undertake in-depth analysis of the presence of the nerve agent.

The Secretary of State applied for welfare orders in respect of the victims and sought access to Mr and Ms Skripal’s medical records from the relevant NHS Trust to aid their investigations. Access to medical records was only required since the date of the nerve agent attack, historical records not being required. 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.

Whilst the Judge was unable to ascertain Mr and Ms Skripal’s past or present wishes or feelings to consent to the proposed procedures and the disclosure of the medical records, it was deemed reasonable to approach the decision on the basis of how “a reasonable citizen would approach matters” having been “subjected to an attack of any sort”.

It was stated by the Judge that most reasonable citizens would wish to understand what had happened to them following such an attack and that most citizens would wish to discover how a crime had been committed. There would most probably be a strong feeling of wanting justice to be done which would very likely extend to cooperating with investigations, such as the provision of blood samples and the release of medical records.

Further, obtaining the blood samples was in general terms a routine mater and not deemed to be harmful to Mr and Ms Skripal in any way, nor would it likely affect their respective clinical conditions. Whilst the procedures would have very little impact on their conditions, the benefit of investigating the toxins from blood samples taken from living individuals would provide far more in the way of investigative evidence to consider any future treatment and the nature of the poison within their bodies. 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.