"I consent to a post-mortem examination being carried out on the body of Rosina Harris (in Mr Harris’ handwriting) And I am not aware that he/she had expressed objection. I understand that this examination is carried out: a) to verify the cause of death and to study the effects of treatment which may involve retention of tissue for laboratory study. b) to remove tissue for the treatment of other patients and for medical education and research, as appropriate. Deceased for cremation/burial. SignedD Harris (in Mr Harris’ handwriting)"
"Dr Clifford asked me if I was happy for a full post-mortem to be carried out and I said, "
"I said we were quite happy for a post-mortem to happen if you take the samples they need to do whatever, but Rosina was to return to us whole."
"I do not think I would be clear enough. I think I would have to – I would either make an assumption and speak back to them and they would then come back at me and say "
"Why was it done as she specifically stated at time of consent that all organs were to be returned and that nothing be retained"
"If it was now, I think it would definitely resonate with organs, but I do not think it would have done in 1995."
"Numerous problems to contend with. Step-child with ADDh. Depressed husband, no money at present, constant arguing within the household. Feels depressed and contemplating leaving home or walking under a car. Tearful, poor sleep, poor concentration and not coping. Also having back pains. Have started Karen on Prozac. "
"Looks normal Consent for p.m."
"It may be objected that the House must act like a court of law and not like a court of morals. That would only be partly right. The court must apply positive law. But a judge’s sense of the moral answer to a question, or the justice of the case, has been one of the great shaping forces of the common law. What may count in a situation of difficulty and uncertainty is not the subjective view of the judge but what he reasonably believes that the ordinary citizen would regard as right."
"I think I would have to start by asking exactly what was meant by the term "paternalism"
"1. - (1) If any person, either in writing at any time or orally in the presence of two or more witnesses during his last illness, has expressed a request for his body or any specified part of his body to be used after his death for therapeutic purposes or for purposes of medical education or research, the person lawfully in possession of his body after his death may, unless he has reason to believe that the request was subsequently withdrawn, authorise the removal from the body of any part or, as the case may be, the specified part, for use in accordance with the request. (2) Without prejudice to the foregoing subsection, the person lawfully in possession of the body of a deceased person may authorise the removal of any part from the body for use for the said purposes if, having made such reasonable enquiry as may be practicable, he has no reason to believe – (a) that the deceased had expressed an objection to his body being so dealt with after his death, and had not withdrawn it; or (b) that the surviving spouse or any surviving relative of the deceased objects to the body being so dealt with. … (7) In the case of a body lying in a hospital, nursing home or other institution, any authority under this section may be given on behalf of the person having the control and management thereof by any officer or person designated for that purpose by the first-mentioned person. (8) Nothing in this section shall be construed as rendering unlawful any dealing with, or with any part of, the body of a deceased person which is lawful apart from this Act. … 2. – (1) Without prejudice to section fifteen of the Anatomy Act, 1832 (which prevents that Act from being construed as applying to post-mortem examinations directed to be made by a competent legal authority), that Act shall not be construed as applying to any post-mortem examination carried out for the purpose of establishing or confirming the causes of death or of investigating the existence or nature of abnormal conditions. (2) No post-mortem examination shall be carried out otherwise than by or in accordance with the instructions of a fully registered medical practitioner, and no post-mortem examination which is not directed or requested by the coroner or any other competent legal authority shall be carried out without the authority of the person lawfully in possession of the body; and subsections (2), (5), (6) and (7) of section one of this Act shall, with the necessary modifications, apply with respect to the giving of that authority."
"We accept that however questionable the historical origins of the principle, it has now been common law for 150 years at least that neither a corpse nor parts of corpse are in themselves and without more capable of being property protected by rights: see for example, Erle J, delivering the judgment of a powerful Court for Crown Cases Reserved in Reg. v Sharpe [1857] Dears. & B. 160, 163, where he said: "
"To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property withinsection 4 of the Theft Act 1968 if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques for exhibition or teaching purposes, see Doodeward v Spence 6CLR 406, 413, 414 in the judgment of Griffith C.J. to which we have already referred and Dobson v North Tyneside Health Authority[1997] 1WLR 596 , 601 where this proposition is not dissented from and appears in the judgment of this court to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson’s case, which appears at that page in the judgment, would have been, as it seems to us, otiose."
"It is true that a man is bound to give Christian burial to his deceased child if he has the means of doing so; but he is not liable to be indicted for a nuisance, if he has not the means of providing burial for it. He cannot sell the body, put it into a hole, or throw it into the river; but unless he has the means of giving the body Christian burial he is not liable to be indicted, even though a nuisance may be occasioned by leaving the body unburied, for which the parish officer would probably be liable."
"If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances. "
"Does this mean that it is arguable that when Dr Perry (the pathologist) fixed the brain in paraffin, he thereby transformed it into an item the right to possession of which or the property in which belonged to the plaintiffs? For my part, I do not think so. The removal of the brain was lawfully performed in the course of the post-mortem which at coroner’s request Dr Perry had undertaken to determine the cause of the deceased’s death. Dr Perry was under an obligation imposed by rule 9 of theCoroners’ Rules 1984 to make provision for the preservation of material which in his opinion bore upon the cause of death but only for such period as the coroner thought fit. It is not alleged that Dr Perry was in breach of that obligation, and once the cause of death had been determined by the coroner with Dr Perry’s help and the time for challenge for that determination had passed, there could be no continuing obligation under the rule to preserve that material." and "
"Dead Bodies and Human Tissue There is no property in a corpse. (However, personal representatives or other persons charged with the duty of burying a body have a right to its custody and possession in the interim, infringements of which are actionable, and by statute those representatives also have certain powers in relation to the use of a body for medical purposes.) On the other hand once a body has undergone a process or other application of human skill, such as stuffing or embalming, it can it seems be the subject of property in the ordinary way. And the same goes for body parts: thus in the grisly case of R v Kelly robbers who abstracted and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. It is an open question whether there can be property in bodies and body parts which have not been subject to any such process, but are legitimately wanted for some other purpose, such as accident investigation or use as an exhibit in court. … In so far as there can be property in corpses or parts thereof, presumably it will vest initially in person carrying out the stuffing or embalming process, or taking steps for their preservation, on the basis that he is the first possessor."
"If then, as seems clearly established, the plaintiff had the right to the custody and control of the remains of his deceased wife any unauthorised interference with that right, such as is alleged, was an invasion of his right and would give a cause of action."
"… the "purpose" test (Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd); the "assumption of responsibility" test (Henderson v Merrett Syndicates Ltd); the "principles of distributive justice" test (Frost v Chief Constable of South Yorkshire Police); and the "three-pronged" test (Caparo Industries plc v Dickman). The fact that these tests are usually deployed in cases involving pure financial loss does not mean that they are inappropriate for use when the only damage in question is psychiatric illness"
"I propose to consider, first, whether a sufficient relationship of proximity existed. It must be appreciated that, prior to17 April 1990 , although the plaintiffs were patients of the defendants in the sense that they were on their register, the only patient who was seeking medical advice and treatment was Robert. It was to him that the defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice, the doctor obviously owes a duty to be careful. But the duty is owed to the child, not to the parents." and (at page 45) "
"My noble and learned friend, Lord Keith of Kinkel, has drawn attention to an observation of Lord Wright in Bourhill v Young, that in nervous shock case the circumstances of the accident or event must be viewed ex post facto … This makes sense, as Lord Keith points out, where the plaintiff is a secondary victim. For if you do not know the outcome of the accident or event, it is impossible to say whether the defendant should have foreseen injury by shock. It is necessary to take account of what happened in order to apply the test of reasonable foreseeability at all. But it makes no sense in the case of a primary victim. Liability for physical injury depends on what was reasonably foreseeable by the defendant before the event."
"Lord Lloyd said that a plaintiff who had been within the range of foreseeable injury was a primary victim. Mr Page fulfilled this requirement and could in principle recover compensation for psychiatric loss. In my view it follows that all other victims, who suffer pure psychiatric harm are secondary victims and must satisfy the control mechanisms laid down in the Alcock case."
"I think, my Lords that this argument really assumes what it needs to prove. The liability of an employer to his employees for negligence, either direct or vicarious, is not a separate tort with its own rules. It is an aspect of the general law of negligence. The relationship of employer and employee establishes the employee as a person to whom the employer owes duty of care. But this tells one nothing about the circumstances in which he will be liable for a particular type of injury. For this one must look to the general law concerning the type of injury which has been suffered. It would not be suggested that the employment relationship entitles the employee to recover damages in tort (I put aside contractual liability, which obviously raises different questions) for economic loss which would not ordinarily be recoverable in negligence. The employer is not, for example, under a duty in tort to take reasonable care not to do something which would cause the employee pure financial loss, e.g. by reducing his opportunities to earn bonuses. The same must surely be true of psychiatric injuries. There must be a reason why, if the employee would otherwise have been regarded as a secondary victim, the employment relationship should require him to be treated as a primary one. The employee in Walker v Northumberland County Council was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do."
"In summary therefore, claims for psychiatric injury fall into four different categories. (1) Tortious claims by primary victims: usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because of the circumstances are akin to those of primary victims in contract (see (3) below). (2) Tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example, the witnesses of the Hillsborough disaster in Alcock’s case. (3) Contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of contractual duty of care towards a victim whose identity is known in advance, for example, the solicitors clients in Cook v S … or the employers in cases of Petch, Walker and Garrett, and in all the cases before us. (4) Contractual claims by secondary victims: where the harm is suffered as a result of harm to others in the same way as secondary victims in tort but there is also a contractual relationship with the defendant, as the police officers in White’s case."
"But the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed."
"In each case it is admitted for the purposes of these proceedings that the defendant was in breach of a tortious duty of care owed to the primary (emphasis added) victim and that each plaintiff has suffered psychiatric illness. It is in issue whether the illness of which each plaintiff complains is causally attributable to the circumstances in which he or she became aware of the death of the primary victim. What remains in issue is whether the defendant owed a duty in tort to the plaintiffs to avoid causing the type of injury of which each plaintiff complains. In essence this involves answering the twin questions of (a) whether injury of this sort to each particular plaintiff was a reasonably foreseeable consequence of the acts or omissions constituting the breach of duty to the primary victim and (b) whether there existed between the defendant and each plaintiff that degree of directness or proximity necessary to establish liability."
"In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon’s shoes; it has to rely upon and evaluate expert evidence, remembering that it is no part of its task of evaluation to give effect to any preference it may have for one responsible body of professional opinion over another, provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion. But when it comes to warning about risks, the kind of training and experience that a judge will have undergone at the Bar makes it natural for him to say (correctly) it is my right to decide whether any particular thing is done to my body, and I want to be fully informed of any risks there may be involved of which I am not already aware from my general knowledge as highly educated man of experience, so that I may form my own judgment as to whether to refuse the advised treatment or not. No doubt if the patient in fact manifested this attitude by means of questioning, the doctor would tell him whatever it was the patient wanted to know; but we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied."
"I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything. The relationship between doctor and patient is contractual in origin, the doctor performing services in consideration for fees payable by the patient. The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctor’s training and experience and as a result of the doctor’s diagnosis of the patient. 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. At the same time the doctor is not entitled to make the final decision with regard to treatment which may have disadvantages or dangers. Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor and therefore the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctor’s own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient. When the doctor himself is considering the possibility of a major operation the doctor is able, with his medical training, with his knowledge of the patient’s medical history and with his objective position to make a balanced judgment as to whether the operation should be performed or not. If the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject that advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment. A patient may make an unbalanced judgment because he is deprived of adequate information. A patient may also make an unbalanced judgment if he is provided with too much information and is made aware of possibilities which he is not capable of assessing because of his lack of medical training, his prejudices or his personality. Thus the provision of too much information may prejudice the attainment of the objective of restoring the patient’s health. … In order to make a balanced judgment if he chooses to do so, the patient needs to be aware of the general dangers and of any special dangers in each case without exaggeration or concealment. At the end of the day, the doctor, bearing in mind the best interests of the patient and bearing in mind the patient’s right of information which will enable the patient to make a balanced judgment must decide what information should be given to the patient and in what terms that information should be couched."
"My Lords, I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J … stated that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men"
"When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna – particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.""
"In my judgment, once the defendants had decided to inform their patients at all, they were under a duty to take such steps to inform them as were reasonable, having regard both to the foreseeable risk that some of them might suffer psychiatric injury (or any existing psychiatric injury might be materially aggravated) upon receipt of the information and to all the other circumstances of the case. This is not a situation in which it is particularly useful for a court to investigate the previous practices of reasonably competent practitioners when handling a similar situation. With the single exception of the Exeter incident, there had been no previous experience in this country, and the evidence showed that the nature of people’s irrational concerns, anxieties and ignorance about HIV and AIDS is, and certainly was in April 1991, to a great extent sui generis. On the one hand, therefore, the judge was, in my judgment, wrong to hold that the defendants were negligent because they did not select the best method. On the other hand, I consider that in the particular circumstances of the present case Mr Armitage is confining the freedom of the court too narrowly when he cites the Bolam test as providing the solution because there simply was no adequate well of professional experience on which the court could usefully draw in the present case. In such a case the judge has to perform the familiar role of considering the factual evidence carefully, listening to the expert evidence, and forming a view as to whether in all the circumstances these public health authorities fell below the standards reasonably to be expected of them when they selected their preferred method of communicating the information to the patients."
"It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken."
"Health Services Development Removal of Human Tissue at Post Mortem Examination –Human Tissues Act 1961 "