AB & Ors v Leeds Teaching Hospital NHS Trust

A hospital post-mortem authorised under the Human Tissue Act 1961 includes removal and retention of organs when reasonably necessary for diagnosis. No additional statutory consent is required for those procedures, although a doctor obtaining consent may owe a common-law duty of care to explain that organs may be removed and retained.

A blanket practice of withholding that information cannot be justified in every case. The doctor must consider the individual circumstances. Bereaved parents claiming psychiatric injury in negligence are primary victims, but recovery still requires foreseeable psychiatric injury. English law did not recognise a separate tort of wrongful interference with a deceased child’s body on these facts.

The judgment concerned three lead claims in the Nationwide Organ Group Litigation arising from the removal, retention and later disposal of organs taken during post-mortems on deceased or stillborn children. The parents alleged wrongful interference with the children’s bodies, negligence in obtaining consent, breaches of Convention rights, and entitlement to aggravated or exemplary damages.

The court determined agreed factual and legal issues concerning hospital and coroner’s post-mortems, the Human Tissue Act 1961, possessory rights in retained organs, the existence and scope of a duty of care, foreseeability of psychiatric injury, and the primary/secondary victim distinction.

1. Wrongful interference. English law recognises no general tort of wrongful interference with a deceased person’s body. There is no property in a corpse, but a body part may acquire proprietary characteristics where work or skill, such as dissection or preservation, has been applied to it. In the lead cases, the organs, blocks and slides fell within that exception. The authorised removal and retention of the organs therefore did not infringe any possessory right of the parents.
2. Human Tissue Act 1961. Sections 1 and 2 establish different regimes. For a diagnostic post-mortem, compliance with section 2(2) is sufficient. Where removal and retention are properly required to establish the cause of death or investigate abnormal conditions, no further consent is required. The position differs where material is to be used for therapeutic, educational or research purposes.
3. Duty of care. A doctor obtaining consent for a hospital post-mortem may be acting within a continuing doctor-patient relationship with the bereaved parent. The duty includes explaining the purpose and relevant procedures of the post-mortem, including the possibility that organs may be removed and retained. A condition imposed by a parent must be communicated to the pathologist.
4. Breach and psychiatric injury. The universal practice of not warning parents about possible organ retention was unjustifiable as a blanket practice. Mr Fairbank was negligent towards Mrs Shorter, and Dr Michaels and Dr Clifford were negligent towards the Harrises. The claimants were primary victims for negligence purposes. Mrs Shorter’s psychiatric injury was reasonably foreseeable and her claim succeeded. Mrs Harris’s injury was not sufficiently foreseeable to a reasonable paediatrician with the relevant knowledge, so her claim failed. Mrs Carpenter’s claim also failed.
5. Convention rights and damages. Unauthorised research use of a retained brain would be contrary to section 1 of the Human Tissue Act 1961 and capable of engaging article 8(1), with public-interest justification likely to be rare. The Act supplied no civil remedy, and the court could not construct a new cause of action. Exemplary and aggravated damages were unavailable on the facts.
6. Disposition. The claims of Mr and Mrs Harris and Mrs Carpenter were dismissed with judgment for the defendants. Mrs Shorter obtained judgment for £2,750 general damages, together with agreed special damages and interest.

First-instance decision. No earlier judgment or appeal was stated in the judgment.