CM v The Executor of the Estate of EJ & Ors

Under the Human Tissue Act 2004, removal, storage or use of human tissue for medical testing ordinarily requires appropriate consent. Where the highest-ranking relatives cannot practicably be contacted within the available time, consent may be given by an available person in a qualifying relationship, including a friend of longstanding. A coroner’s statutory powers do not extend to consenting to sampling for the benefit of a third party, although the coroner may agree to the removal and testing subject to valid consent. Once the statutory consent requirements are satisfied, the High Court may use its inherent jurisdiction to authorise testing, balancing respect for the deceased’s bodily integrity against the applicant’s serious medical and personal interests.

The applicant, CM, a doctor, administered emergency treatment to EJ after finding her seriously injured. EJ died at the scene, and CM’s hands were exposed to EJ’s blood through abrasions. CM sought testing of blood or tissue obtained during the post-mortem examination to establish whether EJ had communicable blood-borne diseases.

EJ’s parents were abroad and had not been informed of her death. OP, EJ’s mother’s cousin, offered consent on their behalf. The coroner had no objection to sampling and testing provided that proper authorisation existed. The central issues were whether valid consent had been obtained under the Human Tissue Act 2004 and whether the High Court should authorise the proposed removal, testing, disclosure and destruction of samples.

1. Declarations granted. It was lawful for blood, bodily fluid or tissue to be removed from EJ’s body, tested for communicable blood-borne diseases, and for the results to be disclosed to CM. It was also lawful for the tested samples to be destroyed and for CM and the coroner to discuss samples taken in the coroner’s investigations.
2. The statutory scheme in the Human Tissue Act 2004 makes consent fundamental to the lawful removal, storage and use of human tissue for obtaining medical or scientific information. In the present circumstances, consent was governed principally by sections 1, 3, 5, 53(1), Schedule 1 Part 1(4) and section 27.
3. It was not reasonably practicable to contact EJ’s parents within the time available. The samples were liable to deteriorate, affecting the reliability of testing. OP could properly be regarded as a person in a qualifying relationship because he fell within the statutory category of a friend of longstanding. His email constituted appropriate consent.
4. The coroner’s power under section 11 was confined to removal, storage and use of relevant material for purposes associated with the coroner’s functions. The coroner could not himself consent to sampling for the benefit of CM, but his agreement supported the proposed course once appropriate consent had been obtained.
5. The valid consent opened the gateway to the exercise of the inherent jurisdiction. The court gave substantial weight to the integrity of the deceased’s body and the statutory and ethical constraints. Against those considerations stood CM’s exposure to a potentially life-threatening infection, the serious side-effects of prophylactic treatment, the urgency of testing, and the circumstances in which she had assisted EJ. Those factors strongly favoured authorisation.

The subsequent tests were negative, enabling CM to stop the antiretroviral treatment.

This was a first-instance application under the inherent jurisdiction. The court had previously granted urgent interim relief on 30 May 2013 and gave its reasons in this judgment.