AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB) (26 March 2004)

Parents of deceased children, whose organs were retained by a hospital without consent, claimed for psychiatric injury. The court denied claims based on negligence but established a potential cause of action for wrongful interference with their right to possess the body.

Facts

This case was one of several group actions brought against NHS Trusts following the public inquiries into the retention of organs from deceased children at Alder Hey Hospital in Liverpool and the Bristol Royal Infirmary. The claimants were parents and close relatives of deceased children who had undergone post-mortem examinations at hospitals managed by the defendant, Leeds Teaching Hospital NHS Trust. During these post-mortems, organs and tissue were removed from the bodies and retained by the hospital without the knowledge or consent of the parents. The parents later discovered this retention, which caused them to suffer what they claimed was recognisable psychiatric illness.

Issues

The court was asked to determine preliminary issues concerning the legal basis of the parents’ claims. The key legal issues were:

1. Whether the defendant Trust was liable in the tort of negligence for causing psychiatric illness (nervous shock) to the parents.
2. Whether the defendant was liable for intentionally inflicting emotional distress under the principle established in Wilkinson v Downton.
3. Whether the common law recognised a cause of action for the wrongful removal and retention of human organs from a dead body, and if so, whether the parents could bring such a claim.

Judgment

Mr Justice Gage delivered the judgment, addressing each of the preliminary issues in turn.

Negligence and Psychiatric Injury

The court analysed the claim for psychiatric injury through the lens of the control mechanisms established in Alcock v Chief Constable of South Yorkshire Police. Gage J determined that the parents were secondary victims, not primary victims, as they were not direct participants in the ‘event’ (the wrongful organ retention). As secondary victims, their claims were subject to the stringent Alcock criteria regarding proximity. The judge held that the claims failed on the requirements of proximity in time and space to the event and the means by which the shock was caused. The ‘event’ was the unauthorised removal of organs, and the ‘shocking’ discovery of this fact occurred months or years later, not in the immediate aftermath. Therefore, the claim in negligence was unsuccessful.

The Rule in Wilkinson v Downton

This tort requires an act that is wilful and calculated to cause harm. The court found that while the hospital’s conduct was unacceptable, it could not be characterised as having been ‘directed at’ the claimants with the intention of causing them harm. The necessary mens rea for the tort was absent. Gage J stated:

‘The conduct complained of, however reprehensible, was not conduct directed at the claimants in any sense of the word. The whole point of what happened is that they knew nothing of it. In my judgment it is an essential ingredient of the tort that there is a purpose or intention to cause shock. That ingredient is missing in this case.’

Accordingly, this cause of action also failed.

Wrongful Interference with the Body

This was the most significant part of the judgment. Gage J considered the long-standing common law principle that there is ‘no property in a corpse’. However, he noted the established exception that the executor or person with the right and duty to dispose of the body has a right to possession of it for that purpose. The judge reasoned that this exception could be developed to found a cause of action. He concluded that the unauthorised removal of organs constituted an infringement of the parents’ right to possession of the deceased child’s body in its entirety.

‘It seems to me to be a natural and logical extension of the exception to the old rule that there is no property in a dead body to hold that the next of kin have a right to possession of the body for the purposes of respectful disposal of it. … A right to custody of a dead body for the purpose of its decent disposal, must, in my judgment, include the parts of the body. If it were not so, the right would be meaningless.’

Gage J held that this interference gave rise to a potential cause of action at common law, distinct from negligence, for which damages could be awarded for the mental distress resulting from the realisation of the wrongful act.

Implications

The case is of major importance as it recognised a developing area of the common law concerning rights over the dead. While affirming that there is no absolute property in a corpse, the judgment established that the person with the duty to bury has a right to possession of the whole body, and wrongful interference with that right is an actionable tort. This decision moved the law forward by creating a remedy for the distress caused by the mishandling of a loved one’s remains, where claims in negligence for psychiatric injury would otherwise fail due to the restrictive control mechanisms for secondary victims. It provided a legal basis for holding institutions accountable for such actions, acknowledging the profound emotional impact on bereaved families.

Verdict: The claims based on negligence and the rule in Wilkinson v Downton were dismissed. However, the court held that a cause of action for wrongful interference with the right to possession of the body was made out and could proceed to trial.

Source: AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB) (26 March 2004)