AB and Ors. v. Leeds Teaching Hospital NHS Trust

[2004] EWHC 644 (QB), [2005] Lloyds Rep Med 1, [2004] 2 FLR 365, [2005] 2 WLR 358, [2004] Fam Law 501, [2005] QB 506, [2004] 3 FCR 324, [2005] Lloyd's Rep Med 1, (2004) 77 BMLR 145
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In 1999, it was disclosed that for many years tissue and organs had been taken at or after post-mortems on deceased children, which were retained without the knowledge of the parents. Hospital post-mortem examinations were generally carried out following the death of a person in a hospital, provided, in accordance with the Human Tissue Act of 1961 (the “Act”), that the near relatives consented to such procedure. Coroner post-mortem examinations were performed wherever the coroner had reasonable cause to suspect that the deceased died a violent or unnatural death or had died of sudden death of which the cause was unknown.

In 2001, the three lead claimants were notified that their children’s organ’s had been removed and retained during the post-mortem examinations. The first claimants, Mr. and Mrs. Harris, became pregnant in 1995, and Mrs. Harris prematurely give birth to a daughter, Rosina, with severe abnormalities who died three days later. In order to determine the cause of death and to advise the parents about possible issues for future pregnancies, a hospital post-mortem was performed, in which the infant’s brain, heart, lungs and spinal cord were removed. The organs were retained and later disposed of, after Rosina had been cremated. Mr. and Mrs. Harris alleged that they only consented to the hospital post-mortem on the condition that if any organs were removed their daughter would be returned whole so she could be cremated or buried whole.  Mrs. Harris suffered from an a pathological bereavement disorder which, which though caused by many factors, had been exacerbated by the knowledge that the organs had been retained.

The second claimant, Susan Carpenter, gave birth to her son Daniel in 1986. In 1987 Daniel had an operation to remove a tumor from his brain stem, but he died several days later. A coroner’s post-mortem was carried out (as required by law), and without the knowledge of the parents, his brain was removed and retained; the child was buried without his brain. The hospital had retained samples from his brain and brain stem at the hospital, which were returned to Mrs. Carpenter in 2001.  When Mrs. Carpenter was later informed that her child’s organs had been retained she suffered a depressive episode.

The final lead claimant, Denise Shorter, gave birth to a stillborn daughter, Laura. A hospital post-mortem was performed on Laura, to determine the cause of death and advise the parents on future pregnancies, and her brain was removed and retained. Mrs. Shorter alleged she only consented to the hospital post-mortem on the condition that everything which was taken out would be returned before Laura was buried, though this evidence was disputed. Mrs. Shorter suffered a pathological grief reaction which was intensified after she learned that her child’s organs had been retained.

All claimants alleged that in removing and retaining their children’s organs, the hospitals had committed the tort of wrongful interference with a body, that such wrongful act had caused the claimants’ psychiatric injury and that Articles of the Human Rights Act could be applied. The Harrises and Mrs. Carpenter further claimed that the staff was negligent surrounding the post mortem. All claimants claimed general and special damages arising out of their injuries, as well as exemplary and aggravated damages.

The Court noted that, under the Act, a coroner’s post-mortem did not require consent from the near relatives and that generally the Act did not demand that consent could only be obtained from a surviving relative who understood precisely what was involved in the examination (i.e., that body parts could be retained), though such standard of informed consent might be relevant to a negligence claim.

The Court held that there was no cause of action for the tort of wrongful interference. The Court found that there was no property in the body or body parts of a deceased person, except where the some human skill or work had been applied such as dissection or preservation techniques. The Court further found that there was a duty of a parent to bury their child, but that duty was not unlimited and that the hospital had the right of possession, at least initially, for the organs removed post-mortem. The Court determined that all of the parents had consented to the post-mortem, and that consent was made regarding all of the procedures involved in a post-mortem, including the removal of organs, and so such removal was lawful. Therefore, the duty to possess and bury those organs did not arise in these three claims.

With respect to a negligence claim, the Court held that the clinicians did owe a duty of care to the Harrises and Mrs. Shorter as these claimants were being counseled as to the advisability of a hospital post-mortem within the context of a doctor-patient relationship. This duty of care extended to alerting the parents that the organs might be retained. In considering whether the clinicians had breached their duty of care, the Court determined that the practice of not fully informing parents about what was involved in a post-mortem examination was nearly universal because such information was deemed unnecessary and too distressing for the parents. However, despite the universality of this practice, the Court concluded that it was objectively wrong practice to not disclose such information to the parents as it was clear that a significant number of parents would want to know if their child’s organs were being retained. The Court reasoned that the practice did not fit with the doctors’ beliefs that a body and the wishes of the parents should be respected. Further, the Court determined that to adopt such practice generally without thought to individual circumstances could not be justified.

With respect to the first claimants, the Court determined that Mrs. Harris’s doctors owed her a duty of care and were negligent in not properly explaining what was involved in a post-mortem. However, the Court held that, while the parents did make it clear that their consent to the post-mortem was conditioned on the return of their daughter whole and while the discovery of organ retention did materially contribute to a psychiatric injury, the negligence claim failed because it was not foreseeable by a reasonable doctor that Mrs. Harris would suffer psychiatric damage if she discovered that her daughter’s organs had been removed and retained without her knowledge.

The Court further determined that the Harrises had a duty to dispose of the body of their daughter, but that duty was discharged when Rosina was cremated. They did not at any time obtain the right to possess the organs that had been retained by the hospital and so the hospital did not wrongfully interfere with any right held by the parents in respect to their daughter’s organs. Therefore, their claim for wrongful interference with a body also failed.

With respect to the second claimant, the Court determined that Mrs. Shorter did not make any express stipulation regarding the return of her daughter’s organs at the time she gave consent to the post-mortem. As no stipulations had been made, and for the same reasons regarding the Harris’ claim to wrongful interference, her claim for wrongful interference failed.  However, the Court did find that Mrs. Shorter suffered psychiatric injury and that such injury was reasonably foreseeable by her doctors. It was also noted that she was a primary victim and so she was not barred from a negligence claim for psychiatric injuries. The Court found that her doctor owed her a duty of care, should have known about the possible removal and retention of organs, and did not fully explain to her what was involved in a post-mortem. Thus, the Court awarded her £2,750 in damages for her psychiatric injury.

With respect to the third claimant, the Court held that Mrs. Carpenter’s claim for psychiatric injury failed, reasoning that her injury was not foreseeable by her doctors and that there were other stressor factors that made her more vulnerable to psychiatric injury. The Court found that it was foreseeable that she would be angry and distressed, but as she was of “reasonable fortitude”, it was not foreseeable that she would suffer psychiatric injury as a result of the knowledge that her son’s brain had been removed and retained. The Court also held that her claim for the tort of wrongful interference with a body failed. While Mrs. Carpenter had a duty to dispose of Daniel’s body, that duty was discharged when her son’s body was buried. Both the coroner and the professor that carried out the examination acted with the coroner’s lawful authority and acquired the right of possession to Daniel’s brain.

The Court found that none of the claimants were entitled to exemplary or aggravated damages.

The Court chose to entertain a number of questions relating to the application of the Human Rights Act. Specifically, the Court assumed a situation where a pathologist lawfully acquired a child’s brain in the context of a coroner’s post-mortem and then used that brain for research without parental permission. Here, the Court found that use of the brain for research would be unlawful without parental consent, though there would be no cause of action available to the parents. However, the Court did find that the unlawful use of the brain would breach Article 8(1)(guaranteeing respect for private and family life) of the European Convention on of Human Rights.

“In my judgement the principle that part of the body may acquire the character of property which can be the subject of rights of possession and ownership is now part of our law. In particular, in my opinion, Kelly’s case establishes the exception to the rule that there is no property in a corpse were part of the body has been the subject of the application of skill such as dissection or preservation techniques.” Page 34.

“It seems to me that it must follow that when the organs were removed from the bodies the action of removing them was lawful and at the time those organs were lawfully in the possession of the pathologists undertaking the post-mortem or any other pathologist properly instructed to carry out a further histological examination. Thereafter once the post-mortem examinations have been completed the law as to what rights are vested in the parents or the pathologists is far from clear. For myself, I prefer the view expressed by the authors of Clark & Lindsell that on the assumption that the Doodeward exception applies the pathologists became entitled to possess the organs, the blocks and slides at least until a better right is asserted.” Page 35.

“Assuming that my conclusions are correct that the claimants have no right of burial and possession of organs lawfully removed at post-mortem and retained, in my judgment, there can be no action for wrongful interference with the body of the child.” Page 36.

“In my opinion, the evidence of the doctors and the experts show that doctors can owe a duty of care to a mother after a death of her baby on a doctor-patient basis. In the case of a child born alive, but dying shortly afterwards, the paediatrician would inevitably have a duty to advise the mother about future pregnancies.” Page 45.

“Although the statutory duty is to ensure non-objection, that must, in my judgment, involve some explanation of to what the parents are being asked not to object. Again, in my opinion, that must involve some explanation of the procedures of a post-mortem of which removal and retention of organs is a relevant part. In the circumstances, I hold that the duty of care extended to giving the parents an explanation of the purpose of the post-mortem and what it involved including alerting them to the fact that organs might be retained.” Page 46

“An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor’s contractual obligation to have regard to the patient’s best interests. Some information might confuse, other information might alarm a particular patient. Whenever the occasion arises for the doctor to tell the patient the results of the doctor’s diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said.” Page 49.

“The argument of the defendants, based on evidence of a practice universally adopted by the clinicians over many years is a strong one. Yet having carefully considered the evidence and examined the argument I find myself unable to accept it. Looked at objectively, from a common sense point of view, in my judgment, a significant number, if not all, bereaved mothers of recently deceased children would want to know if organs from their deceased child were to be retained following a post-mortem examination.” Page 52.

“A number of the doctors who gave evidence were at pains to agree that they were taught to respect a dead body. All agreed that parents’ wishes in respect of the body of a deceased child were to be respected and complied with. These very proper views do not fit with a failure to explain to parents that a post-mortem might well involve the removal and retention of an organ, particularly a heart or a brain.” Page 53