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Interim Report: Removal and retention of human material
Part IV: Recommendations
Option 2 - New Law
(a) Coroners' post-mortems
(b) Hospital post-mortems
- If it were decided that new law is necessary and if parliamentary time could be found, a twofold approach could be adopted. Specific concerns could be met through amending or clarifying the existing law. In addition, the scheme of consents proposed above as a code of practice could be given statutory form by being incorporated into the new law as a schedule, or by stipulating in the law that the code of practice issued from time to time by the appropriate government department must be observed. It has to be said, however, that the legislative regimes which currently regulate Coroners' post-mortems on the one hand and hospital post-mortems on the other are divided between government departments: Coroners' post-mortems fall within the ambit of the Home Office, while hospital post-mortems are in the Department of Health's jurisdiction. Thus, there would need to be significant co-ordination and agreement between the two if any sensible and credible law reform is to be attempted. (Indeed, any systematic review of Coroners' post-mortems, their procedures and function, would need to be conducted across a number of government departments.) (Recommendation 52)
- It would almost be worse than having no change in the law to change one legal regime while leaving the other in its present form. This is particularly true when the focus is largely placed, for example, by the Royal College of Pathologists and the CMO's Interim Guidance, on the 1961 Act, that is, on only one government department's responsibility. We recognise that their approach is not concerned with changing the law. Nonetheless, the relevance of the law as set out in the 1988 Act and the 1984 Rules is insufficiently acknowledged. This is despite the fact that the overwhelming number of post-mortems carried out on those who die in hospital are Coroners' post-mortems rather than hospital post-mortems. (Recommendation 53)
- On the basis of the twofold approach referred to above, we propose
first to identify matters which require either clarification or amendment;
then we refer back to the consent scheme as reflected in the code of
practice. (Recommendation 54)
(a) Coroners' post-mortems
- Coroners should be required to give information to parents before a post-mortem on a child, indicating, among other things: the purpose of the post-mortem; what it involves, including any removal and retention of human material; what representations they may make as parents; what will happen to any human material removed and retained; where the human material is retained; whether the timing of the burial or cremation can be co-ordinated with the completion of the Coroner's post-mortem; when the body will be released; and what arrangements may be made for human material retained beyond the date of the burial or cremation. (Recommendation 55)
- Coroners should be required to provide parents with an explanation, if they object to the proposed Coroner's post-mortem. [92] (Recommendation 56)
- Human material should be defined so as to include organs, parts of organs, tissue in various forms, for example slides and fixed blocks, amputated limbs and other body materials. Attention should be given to the inclusion or otherwise of such material as DNA sequences. (Recommendation 57)
- It should be put beyond doubt that the pathologist, in conducting a Coroner's post-mortem, acts as the agent of the Coroner and thus may neither remove nor retain human material except for the purpose of establishing cause of death. (Recommendation 58)
- When the Coroner has discharged his legal duty by deciding not to hold an Inquest, or, if there is an Inquest, at the end of the Inquest at the very latest, he should issue a Disposal Order. This would require the pathologist to return the body and any human material not otherwise required for legal process to the parents, unless they have given prior consent for the body or human material to be used for specified purposes. The question of what purposes should be specified, as part of the process of obtaining consent, is addressed below. (Recommendation 59)
- It should be established that, in the case of a child, the parents have a right to the possession and control of the body and any human material which has been removed from it, when the post-mortem is concluded and the Coroner has decided not to hold an Inquest. If an Inquest is held, the parents' right to possession and control vests, at the very latest, when the Inquest is concluded, unless the Coroner releases the body and any human material at an earlier time, or there is good reason for its continued retention. This right exists only for the purpose of burial or cremation. It follows that a pathologist has no independent right to use the body or human material from it, unless the parents consent to donate the body or human material for specified purposes. (Recommendation 60)
- It should be made clear that, on completion of the Coroner's post-mortem,
neither the body, nor any human material from it, may be used for any
purpose without the prior consent of the parents. Consent should be
obtained according to the proposed amendments to the 1961 Act, which
are discussed below in the context of hospital post-mortems, and in
compliance with either a statutory code of practice, or guidelines issued
by government from time to time and incorporated into the statute by
reference. The statutory code of practice or guidelines will be in the
form set out earlier under Option 1. (Recommendation 61)
(b) Hospital post-mortems
- The 1961 Act should be amended to require the explicit consent of parents [93] for the use of their child's body or human material for the purposes set out in the Act. This is a recommendation which is specific to children and is without prejudice to any amendments concerning the range of people who may or should be consulted in the case of adults. (Recommendation 62)
- It should be made clear that for the purpose of the amendment in the previous paragraph above, a child is anyone under the age of 16. The 1961 Act should also be amended to provide that any purported donation by the child under section 1(1) of that Act would be invalid. (Recommendation 63)
- It should be made clear that, as regards deaths in hospital, a formal process for designating the person lawfully in possession of the body is required under the 1961 Act. (Recommendation 64)
- The process of seeking the parents' consent and the information to which they are entitled should be set out in a code of practice, contained in a schedule to the Act (or it should be stipulated in the amended 1961 Act that the guidelines issued by government from time to time must be complied with). (Recommendation 65)
- The code of practice should be as set out in Option 1, with any necessary adjustments. (Recommendation 66)
- It should be made clear that, if the parents have given consent, the right to possession and control of any human material within the scope of that consent, vests in the pathologist and his employer. The implications of this need detailed elucidation. They touch on such legal issues as title, commerce and intellectual property rights and are beyond the scope of this Interim Report. (Recommendation 67)
- Parents should have the right to revoke their consent without limit of time and call for the return of the human material. If the pathologist or hospital wishes to dispose of the material, all reasonable efforts should be made to contact the parents so that they may be allowed to decide on the disposal. (Recommendation 68)
- The 1961 Act should be amended to provide that breach of its provisions will attract criminal sanction and the possibility of professional disciplinary action. (Recommendation 69)
Footnotes
92 We reiterate that we would
wish to go further and recommend that, in the absence of good evidence
justifying the post-mortem, the Coroner should be required to give good
reason why a Coroner's post-mortem is called for. We notice in their recent
Discussion Paper Coroners: A Review 1999, that the New Zealand
Law Commission refer to Section 8 of the N.Z. Coroners Act 1988. This
section requires that, in deciding whether or not to authorise a post-mortem,
the Coroner must consider:
'e) The desirability of minimising the causing of distress to persons
who, by reason of their ethnic origins, social attitudes or customs, or
spiritual beliefs, customarily require bodies to be available to family
members as soon as is possible after death; and
f) the desirability of minimising the causing of offence to persons who,
by reason of their ethnic origins, social attitudes or customs, or spiritual
beliefs, find the post-mortem examination of bodies offensive'
We see the value of such a provision. We recognise, however, that any
such provision could have wider implications for the conduct of inquests,
which take us beyond our remit here. Thus, we confine ourselves here to
urging this wider recommendation as part of any broader review of the
powers and duties of Coroners [Return to text]
93 It is suggested that where practicable and reasonable the consent of both parents should be sought, given the matters under discussion. We refer again to wider questions of who may have parental responsibility but do not seek to address them here [Return to text]