What are a person’s best interests in a decision to permit use of samples of body fluids or tissue for a purpose which is neither of direct therapeutic benefit to the person him or herself, or an act of direct altruism towards another person?

The law of mental capacity and incapacity is a great leveller between the powerful and the powerless, the famous and obscure. Many of the cases decided by the Court of Protection are about people who are never identified beyond a set of initials, and a description of their lives that could be that of many people, and might make them recognisable only to people who already knew them.

Sergei and Yulia Skripal, the Russian father and daughter found collapsed on a bench in the city of Salisbury on Sunday 4 March 2018, and to have been exposed to a Novichok class or closely related nerve agent, however, have been the subject of international news, politics and diplomacy, as well as of a recent decision of the Court of Protection, described by the judge as “unique” and “of the utmost gravity”. There has also been speculation that the Court of Protection may in the future be asked to consider and decide whether to turn off either or both of the Skripals’ life support in the event of medical deterioration of their condition beyond a point of any hope of recovery. (DM 28 March 2018). This at least now seems unlikely in the case of Yulia Skripal, who has more recently been reported to be no longer critically ill.

The judgment of the Court of Protection published on 22 March 2018 dealt with an application made by the Home Secretary, seeking authorisation for the Organisation for the Prohibition of Chemical Weapons (“the OPCW”), which the Government had formally invited to send a team of experts to the United Kingdom, to take fresh blood samples from Sergei and Yulia Skripal in order to undertake the OPCW’s own analysis in relation to evidence of nerve agents and to conduct DNA analysis to confirm that the samples originally tested by Porton Down were from the Skripals. The OPCW also wished to analyse the Skripals’ medical records setting out their treatment since 4 March, and to re-test the samples already analysed by Porton Down. As described in paragraph 17 of the judgment, the OPCW is the implementing body of an international convention (the Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction) to which 192 states are parties. Its Technical Secretariat provides assistance to states which are parties to the Convention.

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.

At the date of the hearing both Sergei and Yulia Skripal were heavily sedated and unable to make or communicate any decision for themselves. The Court decided – in a conclusion that seems instinctively unsurprising, and which was not in any way opposed by any party represented at the hearing – that it was in the best interests of both Sergei and Yulia Skripal to authorise the taking of blood samples and other requests made by the OPCW via the Home Secretary’s application. The Skripals’ treating consultant gave evidence that the process of taking samples itself would be unlikely to adversely affect their medical condition, and that each patient already had a cannula in place from which the sample would be drawn by hospital staff, under observation by an OPCW observer and another NHS consultant. But the Court’s decision recognised that:

the evaluation of what order is in the best interests of Sergei and Yulia Skripal involves a far broader survey of whether the taking of blood samples will have any medical benefit to them and whether disclosure of their medical records will bring any medical advantage to them. It includes every consideration that might bear on what is in their best interests.”

Some well-informed and insightful commentary on the decision has already been written by Alex Ruck-Keene and Paul Magrath. This is a footnote to that commentary on one aspect of the decision only:

What are a person’s best interests in a decision to permit use of samples of body fluids or tissue for a purpose which is neither of direct therapeutic benefit to the person him or herself, or an act of direct altruism towards another person?

This question arises because s1(5) of the Mental Capacity Act 2005 (“the MCA”), requires every decision made by the Court of Protection on behalf of a person who lacks mental capacity to make that decision at that specific moment to be made in that person’s best interests. Where the decision to be made is about whether or not a medical procedure should be performed, best interests are generally synonymous with the self-interest of the incapacitated person. In 1996, before the MCA came into force, when decisions about medical procedures on behalf of incapacitated adults were taken by the judges of the Family Division in the exercise of the High Court’s inherent jurisdiction, the court had to consider a decision involving altruism without therapeutic benefit for the incapacitated person herself, in Re Y: (Mental Patient: Bone Marrow Donation) [1997] Fam 110. Y was an adult aged 25, who had been severely mentally and physically handicapped since birth, but had lived as part of a close family until she was 10. At the date of the court hearing, Y’s mother’s health was precarious, and her older sister was suffering from pre-leukaemic bone marrow disorder, for which the only hope of a cure was a bone marrow donation. Y offered the best donor match available, but did not have capacity to consent to preliminary blood tests or to an operation to harvest bone marrow from her under general anaesthetic. The court authorised these procedure on her behalf. The decision emphasised the irrelevance of the prospective therapeutic benefit to Y’s sister, unless it could be said that Y’s own best interests were served. The only way in which it could be said that Y’s own best interests were served was rooted in the close family relationship between her and her mother, and the continuing affection which Y demonstrated towards her mother, even if she could not recognise that the woman who visited her was her mother. The judge held that if Y’s sister was treated with a bone marrow donation from Y, there would be a benefit to Y in the relationship with her mother, because “in this way her positive relationship with her mother is most likely to be prolonged”. It is easy to see how narrow a base this decision is for authorising medical procedures which do not have direct therapeutic benefit, and where altruism towards others is not in itself a measure of best interests.

When the MCA came into force in 2007, it created a unified statutory best interests test which applies both to decisions about personal welfare and medical treatment, in relation to which a non statutory best interests test already applied, and to decisions about property and affairs, in relation to which the pre-MCA Court of Protection had applied a test of substituted judgment. In sharp contrast to medical treatment decisions, decisions about property and affairs frequently include those which are essentially altruistic rather than self-interested, such as making wills or significant lifetime gifts for the benefit of others. Since the MCA came into force, there have been several decisions of the Court of Protection on the application of the best interests test to altruistic decisions, and these form an important part of the background to the decision in relation to the Skripals. There has also been a decision on the authorisation of a minor medical procedure without therapeutic benefit or altruism: the provision of body samples for DNA analysis in order to test disputed paternity in LG v. DK [2011] EWCOP 2453. In that case, DK was an elderly man suffering from dementia, and LG was his professional deputy. LG had come across a reference to a daughter, and asked the Court of Protection to authorise the taking of sample for DNA analysis in order to establish whether or not an identified individual, who believed that she had been born following a brief affair between her mother and DK, was DK’s daughter. The putative daughter had had some contact with DK when he had capacity, but he wasn’t willing to give a DNA sample, asking:

what would it achieve? If I am right, sadly, you will not have met your father. If I am wrong, it means I will regret a 40 year hole in my life of which I was not aware. Either way, one of us is going to be hurt…

 Much of the debate in the case was about whether the Court of Protection had jurisdiction to authorise samples for DNA testing to be taken other than in the context of an application to authorise a statutory will, or any other application in which the paternity of an individual falls to be determined, with the judge concluding that the Court did have this power. As to whether or not to authorise this step on behalf of DK when that came to be decided, the judge said:

Quite how I will proceed at the final hearing will depend on the evidence at that hearing. I will, of course, under MCA 2005 section 4(6)(a) consider DK’s previous attitude to DNA testing, whilst at the same time considering that DK is unlikely in the future to regain capacity in relation to the issue:- MCA 2005 section 4(3). [The putative daughter] is prepared to take the risk and give a sample. It would, in my judgment, require unusual facts for DK’s best interests to depart from the ascertainment of truth or the interests of justice.”

The reference to the ascertainment of truth and interests of justice is taken from a decision on s55A of the Family Law Act 1986, which deals with applications for declarations of parentage.

A best interests decision itself is a value judgment for the decision-maker. The MCA does not dictate what a best interests decision is to be, but, in s4, contains a universal checklist or set of instructions for the decision-maker, setting out what sort of things should be considered, and what should be disregarded in making a best interests decision. At the heart of s4, s4(6) instructs the decision-maker to 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

The first problem the Court of Protection faced here, as the judge recognised, was that it had no evidence about either Sergei or Yulia Skripal as individuals at a time when either of them had capacity to make decisions for themselves, so it could not ascertain the past or present wishes or feelings of either of them. Neither had relatives in England and the Home Secretary had not made contact with any of their relatives in Russia. Although s4(7)(b) MCA requires a decision-maker to take into account, if it is practicable and appropriate to consult them, the views of anyone interested in the incapacitated person’s welfare, as to what would be in that person’s best interests, the Court accepted “in the special context of this case” that it was neither practicable nor appropriate to consult with them. The hospital in which they are being treated had not been approached by anyone known to either of them to enquire of their welfare, and its staff knew little about either patient or what they might have wished. Even if the Court had had some evidence, for example from relatives in Russia, or neighbours in England, it seems unlikely that even a retired Russian spy, still less a member of his family, would ever have expressed any past wishes about whether or not he would consent to taking blood or tissue samples for the investigative work of the OPCW in the event that he was the subject of an apparent attack with a chemical weapon.

This made it inevitable that the Court would have to make some assumptions about what Sergei and Yulia Skripal’s wishes might be, if they were able to consider and decide for themselves, and communicate their decisions. Sub-sections 4(6)(b) and (c) MCA extend beyond the actual wishes ofthe incapacitated person, and explicitly allow the Court to make assumptions about what beliefs and values and what other factors might influence an incapacitated person in making adecision. In an appropriate case, the Court can conclude that it is in the best interests of the incapacitated person to give effect to the wishes the person would have formed on the relevant point if he had capacity. This was the decision in Re G(TJ) [2010] EWCOP 3005, where the Court accepted that an elderly widow would have wished to make substantial maintenance payments for an adult daughter, whose need for maintenance on this scale had not arisen at a time when her mother had had capacity, and that it was in the mother’s best interests to make such an order. Although, as the judge in that case recognised, this involves an exercise of substituted judgment, he accepted that an element of substituted judgment could be subsumed in the concept of best interests. Mrs G and her late husband, for whom the Court of Protection had also made some decisions in his lifetime, were not untypical of many people to whom the MCA applies: both had had full mental capacity for most of their lives, but suffered from dementia in old age. Although the Court may have to make assumptions about what their present wishes might be, it is often able to do so against a background of a fairly clear picture of their pre-incapacity life, and the personality and beliefs and values that they had.

What of the person who has never had mental capacity?This was a problem the pre-MCA Court of Protection considered in the context of statutory wills and gifts. In 1991, Hoffmann J (as he then was), had to decide about a Miss C, in Re C (Spinster and Mental Patient) [1991] 1FLR 51 – a judgment heading which sounds archaic in its explicit references to both “spinster” and “mental patient”. Miss C was a woman of 75 who had been born with a severe mental disability, and institutionalised since the age of 10, but had inherited a substantial estate from her parents. Her life had effectively been a blank canvas as far as making any assumptions about her wishes about her estate after her death was concerned. The judge said that in such a case:

there is no material on which to construct a subjective assessment of what the patient would have wanted to do” and “the court must assume that [Miss C] would have been a normal decent person, acting in accordance with contemporary standards of morality. In the absence of actual evidence to the contrary, no less should be assumed of any person and in this case there is nothing to displace such an assumption.

This is not really very different from the approach taken by Williams J to the Skripals, focused specifically on the “normal decent person” as a victim of an extraordinary crime. He said:

Most reasonable citizens have a quite acute sense of justice and injustice. Most want to secure the best information about what has happened when a serious crime is alleged to have been committed. I accept that such a person would believe in the rule of law; that justice requires that crime or serious allegations of crime are thoroughly investigated; that where possible answers are found as to who, how and why a crime was perpetrated, that where possible truth is spoken to power; that no-one, whether an individual or a State, is above or beyond the reach of the law and that in these turbulent times what can be done to s upport the operation of international conventions is done. Whilst I don’t assume that the reasonable citizen would have asked himself or herself those sorts of questions in quite such detail I do believe that if those issues were put to them they would adopt them and they would influence their decision. In any event all go to the general point that the reasonable citizen including Mr Skripal and Ms Skripal believe that justice should be done.”

The Court of Protection’s decision in relation Sergei and Yulia Skripal illustrates both the continuing relevance of some aspects of the pre-MCA jurisprudence on decision-making for the incapacitated, and the way in which it has developed since the MCA came into force, with the Court finding a clear rationale for the authorisation of a medical procedure which is neither of direct therapeutic benefit nor directly altruistic towards others. It’s hardly surprising that it should endorse an approach which paints assumptions about support for the rule of law firmly onto a blank canvas.


Image courtesy of Dave Pierce (@davebass5) on Flickr