On 4 March 2018, Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Sergei and Yulia Skripal remain in hospital in a coma and under heavy sedation.
Why the Court of Protection?
Judges in the Court of Protection consider issues relating to people who lack the mental capacity to make decisions for themselves. Because both Sergei and Yulia Skripal are unconscious, they are unable to make decisions for themselves, such as consenting to, or refusing, blood samples being taken or tested. The Secretary of State, therefore, applied to the Court of Protection for a best interests decision to be made on behalf of Sergei and Yulia Skripal.
What was the Court of Protection being asked to do?
The Secretary of State asked the Court of Protection to make personal welfare orders in accordance with sections 15 and 16 of the Mental Capacity Act 2005 in respect of Sergei and Yulia Skripal. The Secretary of State sought determinations that it is lawful for:
(i) Salisbury NHS Foundation Trust to take a blood samples from Sergei and Yulia Skripal to provide to the Organisation for the Prohibition of Chemical Weapons (OPCW);
ii) Salisbury NHS Foundation Trust to disclose the relevant medical records to the OPCW; and
iii) The blood samples taken from Sergei and Yulia Skripal to be subjected to testing by the OPCW.
"(1) The court may make declarations as to—
(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person."
In relation to personal welfare, section 16 of the Mental Capacity Act 2005 states:
"(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning—
(a) P's personal welfare,
(2) The court may—
(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters,
On 22 March 2018, Mr Justice Williams, sitting as a judge in the Court of Protection, declared (pursuant to section 15 Mental Capacity Act 2005) and ordered (pursuant to section 16 Mental Capacity Act 2005) that:
i) Sergei Skripal lacks capacity to make a decision as to the provision of blood samples, the testing of blood samples and disclosure of medical notes;
ii) Yulia Skripal lacks capacity to make a decision as to the provision of blood samples, the testing of blood samples and disclosure of medical notes;
iii) That it is lawful for Salisbury NHS Trust to take blood samples for provision to OPCW and to provide copies of medical notes to OPCW; and
iv) That it is in the best interests of Sergei and Yulia Skripal for the samples to be taken, tested and the notes provided.
The judgment can be found here.