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Interim Report: Removal and retention of human material
Annex B: Law and Guidelines
Part IV: Wrongful removal, retention and use
Liability for wrongful removal, retention and
use
Removal, retention or use of tissue in contravention
of a statutory provision or for a purpose not covered by statute
The Coroner's post-mortem examination
Possession of the body
Removal, retention and use of tissue
The hospital post-mortem examination
Possession of the body
Removal and use of tissue
Retention of removed tissue
- The 1961 Act does not provide any sanction for non-compliance with its provisions. Section 1(3) provides that removal and use of tissue in accordance with authority given pursuant to that section is lawful. If the removal or retention or use are either outwith the scope of the authority or the authority itself was not properly given, there remains the risk of prosecution for criminal offences but only if criminal liability were to be found to lie notwithstanding the lack of express reference to criminal offences in the 1961 Act. [119]
- In contrast, the 1984 Act creates a number of offences in section 11, such that it is an offence to carry out an anatomical examination or to possess an anatomical specimen or a body or part of a body in contravention of the provisions of either section 2 or section 5; and it is an offence to breach any condition attached to a licence granted under the 1984 Act.
- Likewise, contravention of the 1989 Act, section 1 in connection with commercial dealings in human organs for transplantation carries with it criminal liability.
- Notably neither the 1984 Act nor the 1989 Act state that the tissue is 'owned' by the donor or his next of kin, giving rise to a proprietary claim by them.
- Papers submitted to the Inquiry by CMS Cameron McKenna
[120] and
by the Bristol Heart Children Action Group (BHCAG)
[121] considered
what liability might lie for wrongful removal, retention or use of tissue.
[122] It
is not the purpose of the Inquiry to reach conclusions as to the liability
of any person or body in relation to the past removal, retention or
use of tissue and thus the report does not therefore express any concluded
view as to the merits of the submissions on criminal or civil liability
made in these two papers.
Removal, retention or use of tissue in contravention of a statutory provision or for a purpose not covered by statute
- The next section will consider whether, and if so when, removal,
retention or use ostensibly pursuant to Rule 9, 1984 Rules or section
1(2) 1961 Act may be, or become, wrongful.
The Coroner's post-mortem examination
Possession of the body
- The Coroner, and the pathologist as his agent, have power to take possession of the body for the purposes of fulfilling his duties under the 1988 Act and, in particular, for carrying out a post-mortem under sections 19-21. This power overrides the right of the next of kin to call for possession for the purposes of disposing of the body.
- Once the Coroner is functus officio, he has no further power
or duty over the body. At this point the right of the next of kin (in
the case of a deceased child) to possession of the body for the purposes
of burial or other disposal is no longer overridden.
[123]
Removal, retention and use of tissue
- Two situations will be considered below: (a) where tissue is taken for purposes other than those of Rule 9 from the outset, and (b) where the tissue is taken for the purposes of Rule 9 and is then kept for other purposes.
- Dealing first with situation (a), it has been stressed above that the only removal which the Coroner may authorise the pathologist to carry out is that which is consistent with carrying out the preservation of material relevant to establishing the cause of death under Rule 9, 1984 Rules and section 11(5), 1988 Act (situation [b] above).
- The Coroner has no power to direct or request removal of tissue for any other purpose. The pathologist, as his agent, is likewise restricted, in the absence of any consent or authority obtained pursuant to another statute (such as the 1961 Act, or 1984 Act).
- The removal of any tissue is not specifically authorised by statute: it is implicitly authorised by the direction or request of the Coroner to carry out the post-mortem under sections 19, 20 and 21 of the 1988 Act. Rule 9 assumes the removal of tissue. Rule 9, however, specifically relates to the preservation of material. Thus any removal of tissue, for example, for medical education or research purposes, cannot be authorised by the Coroner. Moreover, the pathologist, since he is only the Coroner's agent, equally cannot remove material for these purposes, unless he has been authorised to do so by some other statutory framework prior to removing the tissue. Thus, it follows that if a pathologist removes tissue at the Coroner's post-mortem other than for the purpose of determining cause of death, such as for educational or research purposes, then that removal is without lawful authority, in the absence of authorisation pursuant to one of the relevant Acts which have been discussed above. It is another question whether, despite the unauthorised removal, the pathologist has any right to retain and use the tissue for these purposes. We consider this shortly.
- As to situation (b), once the Coroner is functus officio, he has no power to require or authorise the pathologist further to retain the tissue, nor to dispose of it. He cannot 'give' long-term possession of the tissue to the pathologist.
- On one view, any possession the pathologist may have is as agent for the coroner: he does not possess for his own purposes. If this is not accepted, the pathologist would not appear to acquire proprietary rights (beyond actual possession) in tissue removed from the body simply by fixing it for examination. [124]
- The issues to be considered are whether in these circumstances the pathologist has the best claim to the tissue originally removed pursuant to Rule 9 and, if no one has a better claim, whether, by having possession, his rights extend as far as using the tissue for education or research purposes, whether there are circumstances in which he would be under a duty to dispose of the tissue, or whether he can retain it indefinitely.
- It is suggested that a pathologist in possession of tissue, originally removed for preservation pursuant to Rule 9, ought not to be permitted to use that tissue for education, research or other purposes without the prior obtaining of the necessary consent or authority under one of the other statutes considered above. Whether the law presently prevents any such use, or provides any sanction against such use is not at all clear. As noted above, the view of the Royal College of Physicians has been that the anonymous use for research of tissues discarded in the course of medical treatment, and of tissues removed at surgery or at autopsy, is a traditional and ethically acceptable practice that does not need consent from patients or relatives, 'although [they say] there may be legal constraints'. If the pathologist is not able to use the tissue pursuant to his possessory right then he cannot, it is further suggested, bring himself within the Doodeward exception to the 'no property' rule by applying further skill, by for example rendering the tissue suitable for display. This is because Doodeward requires the 'lawful exercise of work or skill' and, if use is not permitted, then the pathologist is disabled from being able to put himself in a position to take advantage of the Doodeward exception.
- The difficulty with the argument just advanced is that Doodeward precisely dealt with the circumstance in which lawful possession combined with the application of skill conferred the right to retain possession. It needs, perhaps, to be said that the pathologist would still be in lawful possession, even if a better claim to possession could be made by some other.
- The pathologist would not appear to be under a continuing obligation to preserve tissue [125] but, on the assumption that there may be a duty at common law to bury or otherwise dispose of such tissue, he may be under a duty to dispose of retained material or to deliver it up if claimed by the parents or relevant others.
- The submissions to the Inquiry from the BHCAG, and from CMS Cameron McKenna [126] addressed the question being considered when they discussed what liability may lie for wrongful removal, retention or use of tissue. In respect of retention by the pathologist after a Coroner's post-mortem, they were divided. The latter suggested that the hospital or pathologist was lawfully in possession and was under no obligation to cede possession to anyone else. The former argued that the pathologist was under a duty to return the tissue to relatives, on the basis that the duty to bury is a duty to bury the body as a whole, where reasonably practicable.
- We consider that the better view of the law at present is that, in
relation to tissue initially lawfully retained under Rule 9, once the
Coroner becomes functus officio, the pathologist, while being
the person in actual and lawful possession, may not be the person with
the best claim to the tissue. The effect of the cessation of the Coroner's
power to override the right to possession of the next of kin, is that
this right reverts to them. They would appear to have the right to possession.
Further, this right to possession would not necessarily be defeated
by the fact that the pathologist could take advantage of the Doodeward
exception. Griffith CJ specifically remarked that the person who has
exercised skill, '... acquires a right to retain possession of it, at
least as against any person not entitled to have it delivered to him
for the purpose of burial'. [127]
To exercise this right, they would have to call for the tissue, at which
point, the pathologist would be obliged to surrender it to them. There
is, however, an alternative. Because the hospital was in lawful possession
(by section 1[7]) prior to the Coroner's taking possession, lawful possession
(if it includes tissue as well as the body) would revert to the hospital
and, through it, to the pathologist now acting as an employee. Even
if this were so, however, the next of kin have a stronger claim for
the purposes of burial or cremation and, thus, would be entitled to
call for any tissue.
The hospital post-mortem examination
Possession of the body
- It has been noted above that section 1(7), 1961 Act implies, as the
note in Halsbury's Statutes volume 28 indicates, that in the case of
a death in a hospital, the manager thereof is in lawful possession of
the body. However, the executors or administrators or other persons
charged by the law with the duty of disposing of the body have a right
to possession of it until it is lawfully buried or cremated.
[128]
Removal and use of tissue
- The hospital is deemed to be capable of giving authority for removal, retention and use of tissue. [129]
- However, an objection by the deceased before death, or by a relative pursuant to section 1(2), 1961 Act, overrides the hospital's ability to give authority.
- The relevant provisions of the 1961 Act have been considered above. [130] It is unlikely that the hospital's authority would be considered unlawful unless there were a manifest breach of the requirement to make 'such reasonable enquiry as may be practicable' or having done so, authority was given in the face of a relative's objection.
- A more difficult question is whether a lack of objection which is expressed by relatives who are not fully informed of what may be involved, may render the authority for removal of tissue unlawful.
- Where consent to treatment is sought from a live patient, the patient must, at the very least, understand the basic nature and purpose of the procedure for the consent to be valid. [131]
- Whilst parents who express no objection under sections 1 or 2, 1961
Act, may appreciate the basic nature of the procedures involved, they
may well not appreciate that long-term retention of tissue may be intended,
or at least retention such that tissue removed will not be returned
to the body prior to burial or cremation, unless this is expressly brought
to their attention. It is by no means clear that authorisation under
these circumstances would be valid. Much depends on the information
to which the relatives are entitled.
Retention of removed tissue
- Where the pathologist removes and retains tissue with valid authority to use the tissue, for example for education or research purposes, and applies the skill necessary to bring him within the exception to the 'no property' rule, property will vest in him (and thus his employer). As mentioned above, the boundaries of the exception to the 'no property' rule, and the degree of skill or work on tissue which is required to come within the Kelly exception is by no means clear. The facts of the Kelly case have to be borne in mind when seeking to explain the court's decision in that case.
- Following Dobson, if tissue is removed for examination purposes at the hospital post-mortem examination, and retained thereafter for one of the purposes specified in section 1, 1961 Act, property does not vest in the pathologist or his employer, simply by virtue of the tissue being fixed.
- Further, where the consent was either not fully informed or the authority invalid, or where the authority does not cover the use to which the tissue is put, the Doodeward exception may not apply as Doodeward requires 'the lawful exercise of work or skill...in his lawful possession'. [132]
- The net effect of the above three paragraphs may be as follows. We begin with the assumption previously made that relatives do have a right to call for possession of tissue for the purposes of complying with their duty to bury or cremate it. If retention of the tissue is unauthorised the relatives may, therefore, call for it. If retention is authorised, there is a suggestion in Doodeward that, whether or not a property right has vested in the pathologist (and the hospital), this right is subordinate to the relatives' right with a view to burial or cremation. But this would be an odd conclusion. A better view, therefore, may be that compliance with section 1, 1961 Act ousts any further rights of relatives, and, thus, a right to retain possession and, where applicable, property, is vested in the pathologist or his employer.
Liability for wrongful removal, retention and use
Footnotes
119 Cases such as R v Horseferry Road Justices ex p IBA [1987] QB 54 indicate that criminal liability will not readily be inferred in such circumstances [Return to text]
120 'Removal, retention and use of human tissue following post-mortem examination', CMS Cameron McKenna, November 1999, INQ 23, 23/71 para 1.3 [Return to text]
121 SUB 1/1-40, 19 September 1999 [Return to text]
122 The following were considered: criminal liability for contravention of sections 1(2) and 2(2) 1961 Act; liability for criminal damage under the Criminal Damage Act 1971; tortious liability for breach of statutory duty; tortious liability for conversion; negligently causing nervous shock; outraging public decency; obstructing the coroner; and the common law offence of preventing the lawful and decent disposal of a corpse [Return to text]
123 Subject to any powers of the police (if exercised) [Return to text]
124 See Dobson, but compare Griffith CJ in Doodeward [Return to text]
125 See Peter Gibson LJ in Dobson [1997] 1 WLR 596, 601H [Return to text]
126 INQ 23/69-78 [Return to text]
127 See para 114 (our emphasis) [Return to text]
128 Clerk and Lindsell on Torts, Sweet & Maxwell, 17th ed, p. 653, cited in Dobson at p. 600 G. This is subject to the powers of the Coroner or the police (if exercised) [Return to text]
129 Section 1(7) 1961 Act, see paras 77-8 [Return to text]
130 See para 77 [Return to text]
131 Sidaway v Governors of Bethlem Royal Hospital, [1985 ] AC 871 [Return to text]
132 See also para 115 [Return to text]