Oakes & Anor v East Kent Hospitals NHS Trust

On an appeal concerning possession and disposal of a deceased person’s body, the court may reconsider the available record and determine the matter afresh where the circumstances justify it. Continued retention of a body for further investigation requires a real and evidentially supported doubt about the established cause of death or a proper ongoing legal purpose. Serious allegations of forgery, medical negligence or criminality cannot justify further proceedings or retention of the body when they rest on conjecture, hearsay or unsupported interpretation of medical material. Where independent post-mortem evidence consistently supports the certified cause of death, and no extant proceedings require preservation of the body, declaratory relief permitting burial or cremation is appropriate.

The appellants, parents of the deceased, appealed an order made by Deputy Master Mark on 30 January 2014. The order declared that the respondent hospital had lawful possession of the deceased’s body and could arrange her burial or cremation at the appellants’ choice.

The appellants alleged that medical records had been forged, that the recorded cause of death was false, and that burial or cremation would destroy evidence relevant to a homicide investigation and a further inquest. The central issues were whether there was a sufficient evidential basis to disturb the coroner’s conclusion that the deceased died from pulmonary thromboembolism, whether further examination or investigation served a proper purpose, and whether the body should continue to be retained.

1. Disposition. The appeal was dismissed. The respondent was entitled to the declarations sought concerning lawful possession and arrangements for burial or cremation.
2. The judge had granted permission to appeal and, given the declaratory relief sought and the restricted jurisdiction of a master in that context, reconsidered the available material and determined the matter afresh. He agreed with the Deputy Master’s ultimate conclusions.
3. The allegations concerning the hospital ECG and the second page of Dr Ramasamy’s notes did not establish a real doubt about authenticity. The reference to a male patient was plausibly explained by the computer system’s default setting. The treatment notes, timing and surrounding evidence supported the conclusion that the ECG related to the deceased. The criticisms of the continuation sheet did not support an inference of forgery.
4. Two post-mortem examinations independently identified pulmonary embolism or pulmonary thromboembolism associated with deep vein thrombosis. The evidence of raised creatinine levels, the appellants’ medical theories, textbooks and unreported expert views did not provide a proper basis for rejecting those conclusions. The appellants had produced no reliable written medical evidence contradicting the pathologists.
5. There were no extant criminal proceedings or effective pending inquest application requiring retention of the body. A further post-mortem, nearly five years after death, was unlikely to produce a different conclusion. The appellants therefore had no proper basis for relying on common law principles or Article 2 of the Convention on Human Rights.
6. The body should no longer be retained in storage. Arrangements were also required for registration of the death and provision of a death certificate.

• High Court (Chancery Division): Deputy Master Mark made the order dated 30 January 2014 declaring that the respondent had lawful possession of the deceased’s body and was entitled to arrange burial or cremation. The High Court granted permission to appeal, reconsidered the matter afresh and dismissed the appeal.