Mental Capacity: international intelligence and the “great and the good”

It has been a busy few days for those working within the Court of Protection.

Sergei and Yulia Skirpal

Rarely does the Court’s business make national headlines. However, the use of a prohibited nerve agent on British soil resulted in the Court considering whether it was in the best interests of Sergei and Yulia Skirpal (currently heavily sedated) for blood samples to be taken and other personal data to be released for use by the Organisation for the Prohibition of Chemical Weapons (OPCW)*.

The OPCW is an independent organisation, supported by 192 nation states, and its remit includes technical support in relation to chemical weapons.

As Mr Skirpal and Miss Skirpal are unconscious, they lack the mental capacity to consent to the OPCW requests, and so the Court had to decide whether it was in their best interests to agree to the proposals.

S 4 of the Mental Capacity Act 2005 (“the MCA”) sets out the framework for deciding what is in a person’s best interests. It requires the decision maker to consider “all relevant circumstances”, including the person’s past and present wishes and feelings on the matter (s4 (6) (b)).

The Skirpals had of course been caught up in a completely unprecedented and unexpected personal attack with traumatic consequences and so nothing was known of their likely thoughts on the issues. Interestingly, the Court did not then focus on the possible benefits to them, in any work undertaken by OPCW potentially leading to a better understanding of their plight and alternative treatment options. Rather the Judge, Williams J compared the Skirpals to:

“most reasonable citizens”, who would have an “acute sense of justice and injustice” and would “believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated…that where possible truth is spoken to power”.

It was determined that it was in the Skirpal’s best interests to:

• Collect fresh blood samples from them;
• Analyse their medical treatment records from 4 March 2018; and
• Retest the samples already tested by Porton Down.

The Right to Freedom and Safety

Yesterday, members of the Human Rights Committee met in the Houses of Parliament to consider the need to progress the proposed reforms of the current Deprivation of Liberty Safeguards. Health and social care leaders, together with members of the Law Commission attended to give evidence to enable the committee to consider questions such as:

• Are we currently ensuring that people deprived of their liberty have the right safeguards in place?
• If only 1% of people subject the Deprivation of Liberty Safeguards make an appeal (according to “best estimates”), is it fair to suggest the appeal system is defunct?
• Should we wait the outcome of the Mental Health Act 1983 review, or simply get on with the reforms proposed by the Law Commission?

10 years on from the implementation of the MCA, it was disappointing but unsurprising to hear about the lack of awareness and understanding across the board in relation to the application of the MCA, particularly for front line staff.

More specifically, the representative from the Association of Adult Social Services in England confirmed that no-one working within the current system would say it is working – “people are genuinely saying we need something to replace this and we need it now”.

The witnesses fully supported urgent change, in line with the proposals put forward by the Law Commission for the new scheme; Liberty Protection Safeguards, as set out in the Draft Mental Capacity (Amendment) Bill – a bill which was described as “oven ready”.

Readers may be aware that government made its final response to the Law Commission review on 14^th March 2018, broadly agreeing with the proposals, and confirming:

“We will bring forward legislation to implement the model when parliamentary time allows”.

We can only hope that the conclusions and the observation of the Human Rights Committee will encourage government to identify and carve out this elusive block of parliamentary time – urgently.

For more information

If you would like to talk to our team about our Court of Protection work, please contact Puja Desai for property and finance matters.

*SSHD v Sergei Skirpal; SSHD v Yulia Skirpal [2018] EWCOP 8

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