Human Tissue Act, Coroner’s Powers and Relatives’ Permission

Circumstances sometimes require that a court reaches its verdict before a specified time, after which any such ruling will become irrelevant.  A recent post considered a case involving the capacity of a bipolar patient to consent to the termination of her pregnancy, and the decision of the court which was expedited so that the termination could be undertaken within the 24 week deadline imposed by section 1(1)(a) Abortion Act 1967.  The case of CM v The Executor of the Estate of EJ (deceased) [2013] EWHC 1680 (Fam) provides a further example, and here the court was asked to permit tissue samples removed under the authority of a coroner following a post-mortem examination, to be analysed before they degraded, in order to determine an appropriate medical regime, if any, for the applicant.

Case Summary

“CM”, a medical doctor, had stopped her car to attend to the motionless body of a woman, “EJ”, lying on the pavement following an apparent fall from a nearby building.  Despite her intervention the woman died, but as a result of her efforts at resuscitation, CM’s hands became covered with EJ’s blood. CM subsequently observed a number of work-related abrasions on her hands, probably caused by an alcohol hand wash, was naturally concerned at the potential of infection from blood-borne diseases, and sought to clarify this by through an enzyme immunoassay of EJ’s blood or human tissue.

However, given its prior history of the organ-retention ‘scandals’ at Alder Hey Children’s Hospital and Bristol Royal Infirmary, the Human Tissue Act 2004, (HTA 2004) and the associated HTA Code of Practice are necessarily prescriptive on the need for consent before “relevant material” is obtained.  In this case, EJ was a foreign national who had no “relatives” as understood by the Act that were readily contactable for such a consent – the closest was “OP”, EJ’s mother’s cousin.

Samples of blood and tissue had been taken by the pathologist on the instructions of the Coroner, pending the decision of the court, but the longer the delay in testing the relevant material, the greater the risk of blood haemolysis and deterioration of the samples, with consequent impact on the reliability of the results. Hence, an urgent application was brought by way of Originating Summons under the inherent jurisdiction, made without formal notice having been given to the First and Second Respondents, (the Executor of the Estate of EJ (deceased) and Her Majesty’s Coroner for the Southern District of London, respectively), although the Second Respondent had informal notice of the application.

The Hon. Mr Justice Cobb noted [at para. 14]

“sources of appropriate consent (in relation to the removal, storage or use of relevant human tissue of deceased adults) are set out in Section 3 of the 2004 Act.   Where the person from whom the human tissue or blood is to be removed has died, ‘appropriate consent’ means:

(i) his (or her) consent (if the consent was in force immediately before he/she died);

(ii) if (i) does not apply, a person appointed to deal with the issue of consent in relation to the specific activity;

(iii) if neither (i) nor (ii) apply, the consent of a person who stood in a qualifying relationship to him/her immediately before he/she died.

In this case it is of course impossible to ascertain EJ’s wishes as to the removal, storage or use of her relevant human material, and there is no evidence that she had appointed another person as her ‘nominated representative’ in this regard.”

He furthermore summarized [at para.18, emphasis added] the effect of Section 11 of the 2004 Act and the Code above is that:

(i) A Coroner may remove, store and use relevant material for the purpose of the post-mortem examination to determine the cause of death without obtaining the consent of relatives;

(ii) A Coroner does not have the power to consent to samples being taken for the benefit of a third-party;

(iii) A Coroner’s consent is required before any sample can be removed, stored or used for purposes other than in the exercise of his own functions or authority.

With regard to consent, Mr Justice Cobb was satisfied that it was not reasonably practicable to seek the consent of EJ’s parents within the time available, as required by section 27(8) of the Act.  In the absence of  formal relatives, OP had a “qualifying relationship” within the definition of Section 3(6)(c) and Section 27(4)(h)), and as a reasonably close relative can properly be regarded as falling within the definition of a “friend of longstanding”.  Since OP had given relevant consent and the Coroner has indicated his agreement to the removal and testing of the relevant material, both communications by email, the judge could then exercise his discretion under the inherent jurisdiction.

In doing so, he indicated the importance of respecting the integrity of the deceased’s body prior to burial or cremation, but noted that the corpse was inevitably to be subject to thorough post-mortem examination, necessarily involving dissection and inspection of EJ’s body parts.  This was balanced against the fact that CM’s request only arose because she undertook an act of great humanity in attempting to save EJ’s life, and if this testing were not to be undertaken, CM would live for the foreseeable future in a state of profoundly anxious uncertainty as whether she had contracted a serious, life-threatening illness.

He therefore had little hesitation in granting the relief sought by CM, and pursuant to his declarations [para. 26], the samples of EJ’s blood and tissue obtained at post-mortem examination were tested for blood-borne diseases, and the test results were negative.

Comment

The Human Tissue Act 2004 is not restricted to coronial activities and is of general application, and imposes prescriptive requirements on any activity related to “relevant material” as defined by section 53[1], such as exhumation, in addition to other legislative controls.  However, certain exemptions apply including; “religious relics”, section 40; and bodies of persons who died before 15 November 1904.

The declarations made by Mr Justice Cobb [para. 26] indicate the range of activities controlled by the 2004 Act, in addition to the consent requirements discussed above, viz.

(i)    that it shall be lawful for blood, bodily fluid and/or tissue to be removed from body of EJ for the purposes of testing for blood-borne diseases for and on behalf of CM, [section 14(1)(a)];

(ii)  that it shall be lawful for tests on the samples referred to in (i) to be performed as are necessary to establish whether, at the time of her death, the deceased was infected with any communicable blood borne diseases, [section 14(1)(b)];

(iii)  that it will be lawful for CM or those acting on her instruction to be informed of the results of the testing referred to in (ii), [section 11(1)];

(iv) that it will be lawful for CM or those acting on her instruction to destroy the sample(s) used for testing, [section 14(1)(g)(iii)];

(v)  that it will be lawful for the Coroner and CM or those acting on her instruction to discuss what samples have been or are to be taken by the Coroner from the body of EJ for the purposes of the Coroner’s investigations, [section 11(1)].

Rosalind English explores the case in The Good Samaritan doctor and the Human Tissue Act on UKHRB.


 [1] Section 53 “Relevant material”: (1) In this Act, “relevant material” means material, other than gametes, which consists of or includes human cells. (2) In this Act, references to relevant material from a human body do not include— (a) embryos outside the human body, or (b) hair and nail from the body of a living person.

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