Strand, London, WC2A 2LL
B e f o r e :
| The Secretary of State for the Home Department
|- and -
(by his Litigation Friend the Official Solicitor)
Salisbury NHS Foundation Trust
| The Secretary of State for the Home Department
|- and -
(by her Litigation Friend the Official Solicitor)
Salisbury NHS Foundation Trust
Vikram Sachdeva QC and Jack Anderson (instructed by the Official Solicitor ) for the First Respondents
Hearing dates: 20, 21 and 22 March 2018
Crown Copyright ©
Mr Justice Williams
i) Collect fresh blood samples from Mr and Ms Skripal to
a) Undertake their own analysis in relation to evidence of nerve agents,
b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal,
ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018,
iii) Re-test the samples already analysed by Porton Down.
PART 4 HEARINGS Contents of this Part
General rule - hearing to be held in private
Court's general power to authorise publication
of information about proceedings
Power to order a public hearing
Court's power to order that a hearing be held in
Supplementary provisions relating to public or
General rule – hearing to be held in private
4.1.—(1) The general rule is that a hearing is to be held in private.
(2) A private hearing is a hearing which only the following persons are entitled to attend—(a) the parties;
(b) P (whether or not a party);
(c) any person acting in the proceedings as a litigation friend or rule 1.2 representative;
(d) any legal representative of a person specified in any of sub-paragraphs (a) or (b); and
(e) any court officer.
Court's general power to authorise publication of information about proceedings
4.2.—(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated in accordance with paragraph (2) or (3).
(2) The court may make an order authorising—(a) the publication or communication of such information or material relating to the proceedings as it may specify; or
(b) the publication of the text or a summary of the whole or part of a judgment or order made by the court.
(3) Subject to any direction of the court, information referred to in paragraph (1) may be communicated in accordance with Practice Direction 4A.
(4) Where the court makes an order under paragraph (2) it may do so on such terms as it thinks fit, and in particular may—(a) impose restrictions on the publication of the identity of—(i) any party;(ii) P (whether or not a party);(iii) any witness; or(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
Power to order a public hearing
Court's power to order that a hearing be held in public
4.3.—(1) The court may make an order—(a) for a hearing to be held in public;
(b) for a part of a hearing to be held in public; or
(c) excluding any person, or class of persons, from attending a public hearing or a part of it.
(3) A practice direction may provide for circumstances in which the court will ordinarily make an order under paragraph (1), and for the terms of the order under paragraph (2) which the court will ordinarily make in such circumstances
PRACTICE DIRECTION 4C – TRANSPARENCY
This practice direction supplements Part 4 of the Court of Protection Rules 2017
1.1. This practice direction is made under rule 4.3. It provides for the circumstances in which the court will ordinarily make an order under rule 4.3(1) and for the terms of the order under rule 4.3(2) which the court will ordinarily make in such circumstances.
1.2. This practice direction applies to hearings in all proceedings except applications for a committal order (for which rule 21.27 makes specific provision).
2.1. The court will ordinarily (and so without any application being made)—(a) make an order under rule 4.3(1)(a) that any attended hearing shall be in public; and
(b) in the same order, impose restrictions under rule 4.3(2) in relation to the publication of information about the proceedings.
2.4. The court may decide not to make an order pursuant to paragraph 2.1 if it appears to the court that there is good reason for not making the order, but will consider whether it would be appropriate instead to make an order (under rule 4.3(1)(b) or (c))—(a) for a part only of the hearing to be held in public; or
(b) excluding any persons, or class of persons from the hearing, or from such part of the hearing as is held in public.
2.5. (1) In deciding whether there is good reason not to make an order pursuant to paragraph 2.1 and whether to make an order pursuant to paragraph 2.4 instead, the court will have regard in particular to—(a) the need to protect P or another person involved in the proceedings;
(b) the nature of the evidence in the proceedings;
(c) whether earlier hearings in the proceedings have taken place in private;
(d) whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room;
(e) whether there is any risk of disruption to the hearing if there is general public access to it;
(f) whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations.
i) The evidence came from 5 witnesses who ranged from Porton Down scientists to senior FCO and HO officials which addressed issues which might be considered sensitive,
ii) The documentary exhibits similarly contained sensitive material including material deriving from the OPCW an international organisation who might wish to make observations on what should go into the public domain.
iii) The background to the application indicates that great care may need to be taken in relation to individuals who are involved in the proceedings.
iv) Directing the matter be heard in public would have potentially inhibited the ability of the court to explore the issues, it not being possible to weigh the sensitivity of any query or answer in the course of an urgent hearing.
For those reasons I concluded that this urgent hearing should take place in private but I determined that my judgment would be published in accordance with COPR 4.2(2)(b).
i) The applicant's connection with the person to whom the application relates,
ii) The reasons for the application,
iii) The benefit to the person to whom the application relates of a proposed order, and
iv) Whether the benefit can be achieved in any other way.
The Parties Positions
i) Capacity: the patients are unconscious and so lack capacity to make a decision on whether or not to consent to giving blood samples.
ii) Best interests:
a) Neither patient is expected to regain capacity by the time the sampling will be needed; neither can participate; there is no other person who might practicably and appropriately be consulted.
b) Best interests is not to be determined by reference to purely medical factors but the OPCW evaluation may be of direct medical relevance in that it might add to the knowledge base against which they are being treated and even if it only confirms the current evaluation this is of direct medical relevance to them.
c) The main consideration ought to be the beliefs and values that would be likely to influence the decision if Mr Skripal or Ms Skripal had capacity. An individual subjected to such an attack with personally catastrophic consequences would want to see it fully and properly investigated and that all appropriate steps to identify the perpetrators (individual and state) have been taken so that they can be held to account.
d) In addition the other factors that Mr Skripal or Ms Skripal would be likely to consider if he or she were able to would include the effects of their decision on others and their duties as responsible citizens. In particular they would be likely to want to support the work of the international body set up by international law knowing that its processes are unimpeachable, it is entirely independent, that the results of its enquiry would potentially be beneficial to the criminal investigation, confirming the nature of the attack and the substance used; assistance in bringing to justice those responsible; identifying those who carried out the attack. They would want to support the UK Government in taking steps on the international plane to hold those responsible to account.
e) The detriment to Mr Skripal and Ms Skripal is negligible.
i) In medical terms the taking of blood through the sited cannula will be no different from taking blood for other purely medical purposes.
ii) The OCPW has rigorous processes for ensuring confidentiality.
iii) The intrusion in terms of privacy in respect of medical records can be limited as only records dealing with medical matters since 4 March 2018 will need to be considered.
iv) Any publicity related to the outcome of the OPCW evaluation will be limited in particular having regard to what is already in the public domain.
v) There is no alternative less restrictive means of addressing the issue.
i) CC: Porton Down Chemical and Biological Analyst
Blood samples from Sergei Skripal and Yulia Skripal were analysed and the findings indicated exposure to a nerve agent or related compound. The samples tested positive for the presence of a Novichok class nerve agent or closely related agent.
ii) DD: Porton Down Scientific Adviser
The evidence summarises the timeframes for the visit of the OPCW and the collection of additional samples and confirms that Porton Down consider samples taken post-mortem would be of less scientific value.
iii) EE: Foreign and Commonwealth Office Arms Control
The OPCW is the implementing body of the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction (The Chemical Weapons Convention or CWC). 192 States are parties. The OPCW has a Technical Secretariat which amongst other roles provides technical assistance and technical evaluation to State Parties in implementing the CWC. The CWC requires States to designate a National Authority to liaise with the Technical Secretariat (TS). The UK requested assistance from the Technical Secretariat to obtain independent, internationally recognised expert identification of the nerve agent used. Their report on that and any other matter they consider appropriate will be of real importance for many reasons including in relation to the on-going criminal process, detecting and deterring any further attacks, allaying false rumour and in supporting the international response. The OPCW have agreed to visit to provide assistance in the week commencing 19 March 2018. This is pursuant to Art VIII 38(e) of the CWC. The TS intends to obtain new blood samples, obtain and test some of the samples already taken and undertake DNA testing to match the new and existing samples. The OPCW TS has well established procedures dealing with obtaining samples, use, preservation and storage, maintaining chain of custody, confidentiality and destruction. If the OPCW results differ from UK tests the UK national authority will be able to share them with clinicians to inform medical treatment.
iv) FF: Home Office
Neither Mr Skripal nor Ms Skripal appear to have relatives in the UK although they appear to have some relatives in Russia. The SSHD have not sought to make contact with them. Discussions have taken place with the OPCW TS about precisely what enquiries they wish to undertake. In summary the main issues are
- To collect fresh blood samples under observation
- To obtain details of the drug treatment administered to date and records of certain tests
- To obtain samples of the initial bloods taken at hospital and Porton Down's initial analysis.
v) ZZ: Treating Consultant.
a) Mr Skripal is heavily sedated following injury by a nerve agent.
b) Ms Skripal is heavily sedated following injury by a nerve agent.
c) Mr Skripal is unable to communicate in any way.
d) Ms Skripal is unable to communicate in any meaningful way.
e) It is not possible to say when or to what extent Mr or Ms Skripal may regain capacity.
f) Both are currently in a physically stable condition which is not expected to change in the immediate or near future.
g) They are both being treated on the basis that they would wish to be kept alive and to achieve optimal recovery and the treatment currently being given is aimed to achieve that.
h) The hospital has not been approached by anyone known to the patients to enquire of their welfare. The hospital know little about either patient or what they might have wished. Independent Mental Capacity Advocates have been appointed by the Trust to assist with best interests decisions on clinical matters.
i) The Trust do not view this application as a clinical issue.
j) The taking of blood samples is unlikely to adversely affect their condition. There is currently in place a cannula from which the samples will be drawn by Trust staff, under observation by an OPCW observer and another NHS consultant.
k) Disclosure of medical records should only be to the extent necessary and the Trust understands inspection is sought but not copies.
The Substantive Application: Legal Framework and Analysis.
'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.
It does not matter whether the impairment or disturbance is permanent or temporary. The determination of whether a person lacks capacity is to be made on the balance of probabilities. Section 3 sets out various criteria by which the court should determine whether a person is unable to make a decision but is not applicable to this situation. Section 2 imposes a 'diagnostic threshold' which in this case is addressed by the medical evidence contained in the Forms COP 3 and the witness statement of a medical consultant involved in the care of Mr and Ms Skripal. I am satisfied on the basis of the medical evidence that Mr Skripal currently lacks capacity to take a decision for himself on the issue of providing consent to a further blood sample for provision to the OPCW, the testing of his blood samples and for the disclosure of his medical records. There is no means by which he could currently be enabled to make a decision. On the evidence currently available it is not possible to say whether the current lack of capacity is temporary or permanent. On balance the lack of capacity arises from an impairment or disturbance of the brain arising out of both sedation and the impact of the exposure to a nerve agent. I am satisfied on the basis of the medical evidence that Ms Skripal currently lacks capacity to take a decision for herself on the issue of providing consent to a further blood sample for provision to the OPCW, the testing of her blood samples and for the disclosure of her medical records. There is no means by which she could currently be enabled to make a decision. On the evidence currently available it is not possible to say whether the current lack of capacity is temporary or permanent. On balance the lack of capacity arises from an impairment or disturbance of the brain arising out of both sedation and the impact of the exposure to a nerve agent.
'An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.
(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—(a)the person's age or appearance, or(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3)He must consider—(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and(b)if it appears likely that he will, when that is likely to be.
(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6)He must consider, so far as is reasonably ascertainable—(a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b)the beliefs and values that would be likely to influence his decision if he had capacity, and(c)the other factors that he would be likely to consider if he were able to do so.
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,(b)anyone engaged in caring for the person or interested in his welfare,(c)any donee of a lasting power of attorney granted by the person, and(d)any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—(a)are exercisable under a lasting power of attorney, or(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10)"Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11)"Relevant circumstances" are those—(a)of which the person making the determination is aware, and(b)which it would be reasonable to regard as relevant.
(my added emphasis)
i) Re G (Education: Religious Upbringing)  EWCA Civ 1233, 2013 1 FLR 677. Best interests must be taken in its widest sense and its evaluation will change according to developments in society. It need not be confined to the short-term but should look at the medium to long term and can take account of anything that might affect the best interests.
ii) In Re A (A Child) 2016 EWCA 759, the Court of Appeal said:
The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude towards the treatment is or would be likely to be; and they must consult others who are looking after him or are interested in his welfare, in particular for their view of what his attitude would be
iii) An NHS Trust v MB & Anor  EWHC 507 (Fam), Holman J:
That test is the best interests of the patient at this particular time. Is it in THIS patient's best interests to receive this treatment? Best interests are used in the widest sense and include every kind of consideration capable of impacting on the decision. In particular they must include the nature of the medical treatment in question, what it involves and its prospects of success and the short, medium and longer-term outcome, best interests goes far beyond the purely medical interests. They must also include non-exhaustively medical, emotional, social, psychological, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations.
iv) Re G (TJ)  EWHC 3005 (COP)
'The word "interest" in the best interests test does not confine the court to considering the self-interest of P. ….. Further the wishes which P would have formed if P had capacity, which may be altruistic wishes can be a relevant factor. '
v) Aintree University Hospitals NHS Foundation Trust v James  UKSC 67,  AC 591. The Supreme Court noted that treatment may not be futile even though it has no effect upon the underlying disease and it may therefore be in a patients best interests to receive it even though it has no beneficial clinical effect on the condition. It may have other benefits which is of direct other benefit to the patient.
i) Mr 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) Ms 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
iv) That it is in the best interests of Mr Skripal and Ms Skripal for the samples to be taken, tested and the notes provided
These are incorporated in the order I approved yesterday.