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

Parents claimed damages for psychiatric injury after discovering organs had been removed and retained from their deceased children during post-mortems without their knowledge or consent. The court held that while doctors owed a duty of care to explain organ retention possibilities, there is no tort of wrongful interference with a body and only one claimant succeeded in negligence.

Facts

Three lead claims were brought by parents whose children’s organs had been removed and retained following post-mortem examinations without their knowledge or consent. Mr and Mrs Harris’s premature baby Rosina died in 1995; her heart, lungs, brain and spinal cord were retained. Mrs Carpenter’s son Daniel died in 1987 following brain surgery; his brain was retained after a coroner’s post-mortem. Mrs Shorter’s baby Laura was stillborn in 1992; her brain was retained after a hospital post-mortem. All parents discovered the organ retentions years later following the organ retention scandal revealed in 1999.

The Harris Claim

Mrs Harris claimed she expressly stipulated to Dr Michaels that organs removed must be returned so Rosina could be buried whole. Mr Harris signed a consent form but believed ’tissue’ did not include organs. The court found the stipulations were made but not properly communicated to the pathologist.

The Carpenter Claim

This involved a coroner’s post-mortem where the parents had no choice but to permit the examination. The brain was retained and disposed of without their knowledge.

The Shorter Claim

Mrs Shorter claimed she consented conditionally on organs being returned. The court rejected this, finding she signed consent without imposing conditions, but the clinician failed to explain organ retention possibilities.

Issues

The key legal issues were: (1) whether there exists a tort of wrongful interference with a body; (2) whether clinicians owed a duty of care when obtaining consent for post-mortems; (3) whether failure to explain organ retention procedures constituted negligence; (4) whether psychiatric injury was reasonably foreseeable; and (5) whether the Human Rights Act provided additional remedies.

Judgment

No Tort of Wrongful Interference

Gage J held that English law does not recognise a free-standing tort of wrongful interference with a body. While parents have a duty to bury their deceased children, this does not confer unlimited possessory rights over body parts lawfully removed at post-mortem. Following the application of skill by pathologists in dissection and preservation, organs become capable of being property under the exception established in Doodeward v Spence and affirmed in R v Kelly.

Duty of Care in Negligence

The court held that clinicians owed a duty of care to parents when obtaining consent for post-mortems. This was part of the continuing duty of care owed to bereaved families. The scope of this duty included explaining the nature of post-mortem procedures, including the possibility of organ retention.

Breach of Duty

The court rejected the Bolam defence. While universal medical practice was not to explain organ retention, Gage J held this practice was not logically defensible. Doctors knew parents’ wishes regarding their children’s bodies should be respected, yet failed to provide information enabling parents to express those wishes.

Foreseeability of Psychiatric Injury

Mrs Shorter succeeded because psychiatric injury was reasonably foreseeable given her emotional fragility following the stillbirth. Mrs Harris’s claim failed because she appeared robust and unlikely to suffer psychiatric injury. Mrs Carpenter’s claim failed both because there was no negligence in a coroner’s post-mortem and injury was not foreseeable.

Primary/Secondary Victim Classification

The claimants were held to be primary victims, not secondary victims, for psychiatric injury purposes. The deceased children could not be primary victims after death, and the claimants were direct participants in the allegedly negligent consent process.

Implications

This case established important principles regarding medical consent and organ retention. It confirmed that clinicians must explain the possibility of organ retention when obtaining consent for post-mortems, and that failure to do so can constitute negligence. However, it also confirmed that there is no property in a corpse except where skill has been applied, and that no tort of wrongful interference with a body exists in English law. The case led to significant changes in medical practice and informed the subsequent Human Tissue Act 2004.

Verdict: Mrs Shorter's claim succeeded with judgment for £2,750 general damages. The claims of Mr and Mrs Harris and Mrs Carpenter were dismissed with judgment for the defendants. The court found no tort of wrongful interference with a body exists, but negligence was established in Mrs Shorter's case where psychiatric injury was foreseeable.

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