BAILII has now posted the judgment of 2014 in which the Administrative Court considered the issue of religious objections to invasive autopsies, cited in Rotsztein v HM Senior Coroner for Inner London  EWHC (Admin) (28 July), on which we posted previously.
The late Mr Goldstein was a Jew. In R (Goldstein) v Her Majesty’s Coroner for Inner London District Greater London  EWHC 3889 (Admin) it was his family’s wish that he be treated in accordance with his own and their religious obligations and that his body should be returned to Israel for burial as rapidly as reasonably possible . Globe J had earlier granted an temporary injunction restraining any post mortem on him . The underlying issue was not whether there should be a post mortem but whether there should be an invasive autopsy . On the facts, there was no suspicion or suggestion of foul play .
The family proposed to engage an acknowledged expert in the field, Professor Ian Roberts of the John Radcliffe Hospital, Oxford, to conduct in the first instance, at their expense, a non-invasive post mortem consisting of an external examination of the body, a CT or MIA full body scan and, if he considered it necessary, a needle biopsy of the heart . The Coroner’s view, on the basis of equally expert professional advice, was that a traditional fully-invasive autopsy was needed to determine the cause of death . But it was common ground that a non-invasive or minimally-invasive autopsy would not in any way impair the integrity of a fully-invasive autopsy if ultimately required .
When the matter came before the Administrative Court for a substantive hearing, Mitting J and HHJ Peter Thornton (the Chief Coroner) counsel for the Coroner accepted that Article 9 ECHR (thought, conscience and religion) was engaged: therefore,
“If this case were ever to proceed to final determination, the likelihood is that the Coroner would have to justify interfering with the rights of the family to freedom of religion by adopting a procedure which conflicts with their religious obligations, by reference to the qualifications set out in Article 9.2. They have not been fully considered or deployed in evidence on the part of the Coroner and, in any event, it would be impossible for us to reach even a provisional view about the qualifications at this stage in this litigation” .
In short, there was a potential conflict between the Coroner’s obligation to conduct a thorough investigation into the cause of death and the rights of the family to respect for their Article 9 rights .
In the circumstances, it appeared to the Court that
“there is nothing to be lost and something to be preserved, namely the rights in respect to the religion of the family, by adopting the step by step approach proposed by Professor Roberts. Accordingly, we do not fully discharge the injunction granted by Mr Justice Globe but propose that a carefully tailored order should be made which permits the following:
(1) non-invasive procedures performed by Professor Roberts;
(2) minimally invasive procedures performed by Professor Roberts, should he consider that they are necessary;
(3) a fully invasive traditional autopsy performed by Professor Roberts, should he consider that necessary to ascertain the cause of death” .
The Court so ordered, on condition that the Coroner was still in reasonable doubt about the cause of death after Professor Roberts’s investigation, it would be necessary to return to the Court for further interim directions .