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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 143
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OPINION OF C. J.
MacAULAY Q.C.
Sitting as a
Temporary Judge
in the cause
JUNE STEVENS
Pursuer;
against
(FIRST) YORKHILL
NHS TRUST and (SECOND) SOUTH GLASGOW
UNIVERSITY HOSPITAL
NHS TRUST
Defenders:
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Pursuer:
H Campbell, Q.C.; Blair,; Thompsons
Defenders: Fitzpatrick; Ranald
F MacDonald, Solicitor
13 September
2006
Introduction
[1] The
public outcry generated by the disclosures in England
in 1999 that for a number of years human organs had been removed at
post-mortems by pathologists from children without the knowledge of parents led
to inquiries being conducted particularly in relation to the practices at
Bristol Royal Infirmary and the Royal Liverpool Children's Hospital at
Alderhey. The furore spread to Scotland
and, prompted by the disclosures in England,
parents in Scotland
inquired from health authorities whether any such practices had been prevalent
in Scotland. In this action the pursuer avers that by
letter dated 18 October 2000
she was advised by a representative of the first defenders that her daughter's
brain had been removed in the course of a post-mortem. Apparently she was one of a number of parents
in Scotland who
received similar information.
[2] The
pursuer now sues for damages in the sum of г100,000 and contends that as a
consequence of the disclosure made in October 2000, she has suffered psychiatric
injury. She contends that her
psychiatric condition caused the loss of her employment.
[3] The
case came before me for debate. At the
outset I was informed that the second defenders are no longer involved in the
proceedings. Accordingly I propose to
refer to the present first defenders as "the defenders". Also, I was informed by Mr Campbell that
he no longer insisted in the statutory cases made under the Human Tissue Act
1961 and the Human Rights Act 1998.
The pleadings
[4] The
pursuer avers that on 30 June
1995 she gave birth to her daughter, Nicola Jane Stevens, at the
Queen Mother's Hospital, Glasgow. Nicola was born with a congenital abnormality
of the diaphragm, known as a diaphragmatic hernia. She was transferred to Yorkhill
Hospital where she underwent a
surgical operation for repair of the hernia.
The pursuer goes on to aver that Nicola required support of her
pulmonary and cardiac function and had to be placed on a machine which
oxygenated her blood outwith her body.
This machine was known as an Extracorporeal Membrane Oxygenation Machine
"ECMO". It also transpired that Nicola,
apart from the hernia, had a hole in the heart which also required
surgery. Increasingly Nicola began to
suffer from multiple organ failure and she developed septicaemia. When it was clear beyond doubt that Nicola
was not going to survive, the pursuer consented to the discontinuation of the
support system. Use of the ECMO machine
was discontinued and Nicola died shortly thereafter on 1 August 1995.
[5] The
pursuer also avers that:-
"In the short
period between the life support system having been switched off and Nicola's
death, the pursuer, who had been with her almost constantly throughout her
life, was for the first time able to hold her in her arms. The pursuer was holding Nicola as she
died. After her death, the pursuer and a
friend were allowed to wash her and dress her, inter alia putting a baby's bonnet on her head. A doctor employed by the first defenders,
believed to be a Dr Graham Haddock, approached the pursuer's friend,
Elizabeth McDonald, shortly after the ECMO machine was switched off. He asked Ms McDonald to speak to the pursuer
about a post-mortem examination of Nicola being carried out. Ms McDonald relayed this request to the pursuer,
who refused to consent to a post-mortem examination. The pursuer was distraught. Dr Haddock spoke again a little later on
the same night to Ms McDonald, seeking permission for a post-mortem. Dr Haddock indicated that the purpose of
the post-mortem would be to help other babies born with the same congenital
defect and to evaluate the ECMO trial.
He did not tell Ms McDonald that the post-mortem would involve the
removal of organs or the retention of organs.
Ms McDonald did not know of any such intention and did not discuss
any such removal or retention with the pursuer.
Consequent upon the second request by Dr Haddock, she passed on to
the pursuer what Dr Haddock had said in relation to the prospect of
helping other similarly affected babies and evaluating the ECMO trials. In light of that the pursuer agreed to a post-mortem
being carried out. The pursuer signed
the 'post‑mortem book' in the ward.
None of the doctors involved in Nicola's care spoke directly to the pursuer
about the request for a post-mortem.
No-one explained, whether directly or indirectly, to the pursuer what
the post-mortem examination entailed. In
particular none of them explained that organs would or might be removed, or
that organs would or might be retained.
The pursuer was not aware what such an examination involved, nor that
organs and tissue would be removed either temporarily or for retention over a
period of time. Accordingly, the pursuer
did not give informed permission for the post-mortem examination. She did not give permission for
Neuropathological examination and the retention of Nicola's brain
thereafter. Nicola's body was given back
to the pursuer shortly after the post-mortem had been performed. She was still wearing the bonnet. The pursuer was unaware that her brain and
other tissue had been removed far less retained. Nicola was buried near the pursuer's home
shortly thereafter".
The pursuer goes on to aver that
the post-mortem was carried out by a Dr Patrick, an employee of the defenders,
at Yorkhill NHS Trust Department of Pathology on 2 August 1995 and that
Nicola's brain was removed and sent to the Neuropathology Department of the
Southern General Hospital where it was retained. There is an issue of fact as to whether or
not Dr Haddock spoke directly to the pursuer, the defenders' position on
Record being that he did so. The
defenders do not dispute that Dr Haddock did not say that the post-mortem
examination would involve the removal or retention of organs. The defenders aver that Dr Haddock was a
Senior Registrar and the clinician in charge of Nicola's care at the time of
her death.
[6] The
pursuer position on record is that it was only by the letter of 18 October 2000 that she
learned that Nicola's brain had been retained following the post-mortem examination. She goes on to make the following averments
(Article 5):
"In October
2000, the pursuer was horrified to learn that the brain had been retained at
the Southern General Hospital. She felt
that Nicola had not been buried whole.
She was horrified, distressed and shocked. The pursuer developed a severe depressive
episode, in terms of the ICD-B classification of disease. Her condition is now chronic and is unlikely
to improve."
[7] The
pursuer now makes two cases against the first defenders. The first of these is set out in Article 6. The essential averments are in the following
terms:-
"It was the duty of the first
defenders to take reasonable care for the safety and health of the pursuer as
the mother of Nicola, and not to expose her unnecessarily to a risk of injury
to her health. They knew or ought to
have known that to carry out a post-mortem examination of a deceased person
without the informed permission of their near relatives et separatim to remove et
separatim to retain body parts of the deceased without the informed
permission of said relatives would, reasonably foreseeably, cause pathological
harm to such relatives or in any event a substantial proportion of them. It was their duty to take reasonable care to
devise, institute, maintain and enforce a system whereby no post-mortem
examination of a body was carried out unless and until the near relatives (in
the present case the pursuer) had been informed by a doctor or other qualified
person authorised by them of the fact, nature and extent of what was likely to
be involved in the post-mortem, and had consented thereto in light
thereof. It was their duty to take
reasonable care to devise, institute, maintain and enforce a system whereby, in
the event that the post-mortem would or might involve the removal or retention
of organs, no such removal or retention of organs was made unless and until the
near relatives of the deceased had been informed by a doctor or other qualified
person authorised by them as to the fact and nature and extent of the proposed
or potential removal and/or retention, and had consented thereto in light
thereof. It was their duty to take
reasonable care not to remove et separatim, not
to retain body parts from Nicola without having sought and obtained the pursuer's
consent thereto, having first explained to her that the post-mortem would
involve the removal and retention of tissue and was likely to involve the
removal and retention of organs".
[8] The
second case made against the defenders is set out in Article 7. The pursuer contends that the actings of the
defenders and doctors Haddock and Patrick were illegal. She avers that the removal and retention of
body parts from Nicola were acts which were unlawful in the absence of consent
of the pursuer and that these unlawful actings have caused loss, injury and
damage.
[9] The
first and second pleas-in-law for the pursuer are designed to reflect the two
separate cases made. The first
plea-in-law focuses on fault and the second focuses upon the alleged unlawful
actions for which it is alleged the defenders are responsible.
Submissions
Submissions for the defenders
[10] Mr Fitzpatrick invited
me to sustain the first plea-in-law for the defenders and to dismiss the action
as irrelevant.
[11] In attacking the case made by the pursuer based on fault Mr Fitzpatrick
drew attention to the way in which the pursuer's case had been formulated. His point was that the pursuer's averments
were the type of averments normally associated with a clinical negligence case
where the allegation of negligence was being made in the context of a
doctor-patient relationship. He argued
that there were no averments of a doctor-patient relationship between Dr Haddock
and the pursuer as the parent of the dead child. He accepted that there may be the possibility
of a clinical relationship in a situation where a parent needed to know about
the cause of death of a child and was seeking advice but he argued that was not
the position here. Mr Fitzpatrick
also argued that there were no other averments apt to suggest a duty of care on
any other basis.
[12] Mr Fitzpatrick also questioned the use of the formula
"informed permission". Again his point
was that that formula generally is used in a case of clinical negligence when a
doctor in the treatment of a patient requires to give,
in certain circumstances, information to the patient. In relation to the pursuer's averments at
10A-B in response to the averments made by the defenders about the practice at
the relevant time being one of not confronting patients with the precise
details of what might be involved in a post-mortem examination
Mr Fitzpatrick argued that the pursuer had failed to aver that such a
practice was not one that would be followed by a responsible body.
[13] Focussing on the particular duties in Article 6 (see
paragraph [7]) Mr Fitzpatrick maintained that in the absence of a
doctor-patient relationship, the duties of care set out did not constitute a
relevant case in law.
[14] In developing his submissions Mr Fitzpatrick referred to AB v
Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB). I shall look at that case in more detail later
but suffice to say for the moment that it concerned three lead actions in
a group litigation entitled The Nationwide Organ Group Litigation. The three lead claims all concerned
organs removed from children at post-mortems and retained in the hospitals
where the post-mortems were carried out.
The claimants were the parents of the deceased children and, like the
pursuer in this case, claimed for psychiatric injury caused by the knowledge
subsequently obtained that organs had been removed and retained from their dead
children. Mr Fitzpatrick's purpose
in referring to that case was to draw attention to certain passages in the judgment
of Gage J dealing with psychiatric injury, duty of care and
foreseeability. Mr Fitzpatrick
distinguished the case of AB v Leeds Teaching Hospital NHS Trust from
the present case because there, on the facts, a doctor-patient relationship was
held to be established. Mr Fitzpatrick
argued that the absence of averment to support such a conclusion in this case
was fatal to the pursuer.
[15] Furthermore, Mr Fitzpatrick argued that, even if a
relationship of doctor-patient could be inferred from the pursuer's pleadings,
the pursuer had failed to make relevant averments that would disclose that
psychiatric harm was foreseeable. The
averments did not disclose that she was either a primary or secondary victim as
that dichotomy is understood in cases where psychiatric harm is alleged. He focussed on the pursuer's averment on
foreseeability (see paragraph 7) to the effect that to carry out a
post-mortem examination without informed permission and retain body parts
without informed permission would "reasonably foreseeably, cause pathological
harm to such relatives ...". Mr Fitzpatrick
attacked the basis for this averment as lacking in specification and posed the
question as to what was meant by reference to "pathological harm".
[16] In dealing with the pursuer's separate delictual case, and
anticipating the pursuer's submissions, Mr Fitzpatrick made reference to
three Scottish cases, Pollok v Workman 1900 2F 354, Conway v Dalziel 1901 3F 918 and Hughes
v Robertson 1913 SC 394. Mr Fitzpatrick accepted that these cases
tended to support the proposition that a relative may have a claim when a
post-mortem is unauthorised and organs are removed without authority. However he argued that it was clear from the Pollok case that the separate wrong
complained of was equiparated to assythment and since the action of assythment
had been abolished by the Damages (Scotland)
Act 1976, Section 8, it was no longer open to the pursuer to pursue this
type of claim. In support of his
proposition that the basis of the Pollok case
was that the action was of the nature of an action of assythment Mr Fitzpatrick
relied upon a passage from Walker, Delict (2nd Edition) at page
670.
[17] Mr Fitzpatrick also relied upon the terms of the Human Tissue
Act 1961 as considered by Gage J. in AB
v Leeds Teaching Hospital NHS Trust. Mr Fitzpatrick's point was that the
statutory regime set out in that piece of legislation meant that if the purpose
of establishing or confirming the cause of death or of investigating the
existence of nature of abnormal conditions properly required organs to be
removed and retained for examination then no consent for that purpose is
required. In that situation removal and
retention would not be unlawful. He accepted
that the position would be different if the purpose of the removal and retention
of the organs was for therapeutic education or research but, Mr Fitzpatrick
argued, the pursuer's averments were inadequate to support such an
inference. Essentially therefore Mr Fitzpatrick's
position was that the pursuer had not made sufficient averments to take this
case into Section 1(2) of the 1961 Act where the issue of non-objection
could be raised.
Submissions
for the pursuer
[18] Mr Campbell began by focussing upon the case made based
upon the existence of an independent legal wrong in Scots law for the wrongful
removal and retention of organs. He
relied upon the cases of Pollok v Workman, Conway v
Dalziel and Hughes v Robertson. He placed particular reliance on the decision
in Conway v
Dalziel to the effect that the Court concluded that the removal and
permanent retention of organs of the body was an independent wrong distinct
from the wrong caused by an unauthorised post-mortem examination. He also relied upon the view expressed by
Lord Adam (page 922) that it was not an ordinary incident of a post-mortem
examination that organs of the body could be removed and not replaced. Mr Campbell also referred to a decision
of the Supreme Court of Alberta in Edmonds v Armstrong Funeral Home Limited [1931] 1 DLR 676. He argued that that case supported the
Scottish position that an unauthorised post-mortem and removal of body parts
were actionable wrongs.
[19] In addressing the defenders' argument based on assythment and,
in particular, its abolition, Mr Campbell referred to McKendrick v Sinclair
1972 SC (HL) 25. He relied upon what was
said by Lord Reid (page 52) that for an action for assythment to be
sustained, a crime had to be committed on a victim. The trilogy of Scottish cases he founded upon
could not be explained on the basis of assythment because there was no
suggestion in these cases of criminal conduct resulting in death or personal
injury.
[20] In relation to the argument made on behalf of the defenders
under reference to the Human Tissue Act 1961, Mr Campbell submitted that the
first question that had to be asked was - what is meant by a post-mortem
examination? He referred to Black's Medical Dictionary and the
references there to post-mortem examination and necropsy. He argued that having regard
to these references a post-mortem did not imply removal and retention of
organs, and insofar as Gage L.J. in the case of AB suggested otherwise then he was incorrect to do so. Mr Campbell submitted that Section 2(1)
of the Human Tissue Act 1961 did not imply removal and retention of
organs. The removal and retention of
origins was covered by Section 1 of that Act. Accordingly, if in the course of a post-mortem
organs were to be removed, the regime provided by Section 1 of the Act
required to be followed.
[21] In any event Mr Campbell argued that the post-mortem was
not carried out simply for diagnostic purposes.
He maintained that the pursuer's pleadings justified a conclusion that
the purpose behind the removal and retention of the organs was research and not
an investigation into the cause of death or the existence or nature of abnormal
conditions. Accordingly, even if he was
wrong in relation to his interpretation of the Human Tissue Act, in any event
the regime envisaged by Section 1(2) of that Act prevailed and the
independent legal right supported by the three Scottish cases was not
affected by the 1961 Act.
[22] In addressing his case based on fault Mr Campbell
submitted that for the defenders not to owe a duty of care to a mother who has
been with her desperately ill baby for some thirty days and with whom they
required to consult in relation to life support systems and who ultimately
watched her baby die would be an unattractive proposition. In the particular circumstances of this case
he submitted that even if the relationship was not directly that of
doctor-patient it was a sufficiently proximate relationship as to give rise to
a duty of care. He submitted that the
statutory scheme whereby a relative such as the pursuer might be asked if
he/she has any objection to the removal of organs was a relevant factor in
considering the proximity of that relationship.
He argued that the defenders had to say that after death there was no
duty owed to parents in relation to consulting with them in connection with the
possibility of the removal of organs and that simply was not borne out by the
legislative background.
[23] Mr Campbell also argued that having regard to the
averments made on Record he had pled a doctor-patient relationship. He submitted that there was a continuing duty
of care to the family of the child that had just died. At that time, the parent of the child was
still part of the doctor-patient relationship that existed between the doctor
and the child. The only person with an
interest in the death of the child was the pursuer. Mr Campbell submitted that having regard to the circumstances it could not be said that when
the issue arose as to whether or not there was to be a post-mortem a
relationship of doctor-patient did not exist between Dr Haddock and the
pursuer.
[24] In developing his argument, Mr Campbell relied upon
certain passages in the case of AB v Leeds Teaching Hospital NHS Trust. He submitted that that case supported the
view that after death a duty was owed to parents in relation to consent
procedures in connection with the carrying out of post-mortems. In particular he relied upon the conclusion
arrived at by Gage J (paragraph 203) that taking consent for a post-mortem
was not just an administrative matter bringing a doctor into contact with a
parent but part of the continuing duty of care owed by clinicians to a parent
following the death of a child. He also
argued, under reference to AB v Leeds Teaching Hospital NHS Trust, that it
was instructive to see that the doctors who gave evidence in that case did
consider that they could owe a duty of care to a parent after the death of a
baby on a doctor-patient basis.
[25] In addressing the defenders' argument on the topic of
psychiatric injury, Mr Campbell invited me to adopt the approach taken by
Gage J in AB v Leeds Teaching Hospital NHS Trust.
In particular he relied upon Gage J's conclusion (paragraph 199)
that the claimants in that case properly fell into the category of primary
victims.
[26] In dealing with the issue of foreseeability, Mr Campbell
argued that it could not be said that the pursuer would necessarily fail on
this issue having regard to the averments made.
He drew attention to the averments indicating that Dr Haddock had
sought to obtain the pursuer's consent to a post-mortem through an intermediary
at a time when the pursuer was distraught.
The pursuer's medical records would have disclosed that the pursuer was
predisposed to suffer from depressive illness and the defenders had access to
these medical records. In any event Mr Campbell
argued that there would be a general expectation that a mother who discovered
after the burial of her child that organs had been removed and retained that
such a mother would suffer mental anguish.
He relied upon Gage J in AB
v Leeds Teaching Hospital NHS Trust (paragraph
239) who found that most of the clinicians and experts who gave evidence said
that they could have foreseen that in such circumstances parents would suffer
great distress and some accepted that it would have led to psychiatric harm.
[27] Mr Campbell reminded me of what was said in Jamieson v Jamieson 1952 SC (HL) 44 and that the test of relevancy was that
an action should not be dismissed as irrelevant unless it must necessarily fail
even if all the pursuer's averments were proved. He submitted that that could not be said in
this case and he moved me to allow a Proof Before Answer.
Discussion
Independent
legal wrong
[28] The argument that Scots law recognised the unauthorised removal
of organs from a corpse as an independent legal wrong was based on the three
Scottish cases Pollok v Workman, Conway v
Dalziel, and Hughes v Robertson. I propose now to consider these three cases
in turn.
[29] In Pollok v Workman, the pursuer averred that her
father died as a result of an accident he had sustained in the course of his
employment. She instructed solicitors to
intimate a claim for compensation on behalf of herself and the other members of
her family. She alleged that in response
to that intimation the deceased's employers' insurers, the second defenders in
the action, instructed the first defender, Dr Workman, to carry out a
post-mortem examination of the deceased's body.
The essence of the pursuer's position was that the post-mortem
dissection which was carried out by Dr Workman was done without consent
being obtained from any party entitled to consent to such an examination and
was unlawful. Her first plea-in-law was
in the following terms:-
"The defender,
Dr Workman, having wrongfully and illegally made the post-mortem
dissection libelled, to the loss, injury and damage of the pursuer, one of the
daughters and next of kin of the said Thomas Mitchell, is liable to her in
reparation for the injury thereby done to her".
[30] At first instance Lord Kyllachy expressed the following
view (page 355):
"I decided
nothing in this case when I ordered issues, but had very little doubt, and have
none now, that the pursuer here has set out facts which
involve a legal wrong, or at all events which, upon proof, may be found
to involve a legal wrong. Moreover, I
have no doubt that the cutting up or dissecting, or other unauthorised
mutilation of a near relative's body, constitutes a wrong of which a near
relative has a title to complain.
Further, without deciding anything beyond what I require to decide, I am
not prepared to hold that the daughter of a person whose body has been treated
in a manner alleged may not be entitled to solatium,
- that is to say, to damage in respect solely of injury to feelings".
He went on to repel the defenders'
pleas as to title and relevancy.
[31] The defenders reclaimed and argued again their points in
relation to title and relevancy. In
addition the defenders argued that they were entitled to have all the possible
claims disposed of in the one action, and since the action was at the instance
of only one of the deceased's children, it should be dismissed. The pursuer was not called upon to respond to
the arguments on title and relevancy and was only required to respond to the
new point that was raised in the course of the reclaiming motion. According to the report of the case, it
appeared to have been part of the pursuer's argument in response to that point
that "the act complained of here was criminal, and the action was of the nature
of an action of assythment".
[32] In the course of his Opinion the Lord Justice Clerk (MacDonald)
made the following observations (page 356):
"I think this
action has been brought into a very unfortunate position. The defenders, after arguing against the
relevancy of the case and the title of the pursuer, brought forward an argument
preliminary to both these pleas, and one on which I am of opinion that the case
falls to be decided I, therefore, do not need to go into the questions of
relevancy or title at all, but I only express the opinion generally that, so
far as the argument has gone, I think that the case is relevant and that the
pursuer has a good title".
[33] He went on to dismiss the action on the basis that, in the
absence of any averments of lack of concurrence on the part of other parties
with a title to sue, all the claims ought to have been brought in the one
action. The other Judges (Lord Trayner
and Lord Moncrieff) were of the same opinion.
[34] Although the case floundered on a procedural point, it does
provide support for the proposition that in Scots law an unauthorised
post-mortem could constitute an independent legal wrong for which near
relatives could sue for solatium. Mr Fitzpatrick in his submissions relied
on the reference to an action of assythment in the argument made on behalf of
the pursuer as the basis for his proposition that whatever the position may
have been in the early part of the 20th Century, the abolition of
the action of assythment by the Damages (Scotland) Act 1976 meant that no such
independent legal wrong now existed.
However, it is clear that the reference to assythment in the argument
advanced on behalf of the pursuer in that case was an unsuccessful attempt to
avoid the impact of the rule upon which the case eventually turned, presumably
on an assumption (rightly or wrongly) that in an action of assythment each
wronged party could raise separate actions.
In the passage Mr Fitzpatrick relied upon in Walker Delict (2nd Edition) at page 670 Professor Walker
does suggest that it was "possible" that the action of assythment was the basis
upon which the Pollok case
proceeded. However, Professor Walker
goes on (page 671) to express the view that the better basis for the right
of action in Pollok was the actio injuriarum. I am bound to
say that this does appear to be the better explanation for the basis of that
decision. As I have indicated, the
pleadings and the observations made by Lord Kyllachy proceeded upon the
basis that the pursuer had suffered affront as one of the deceased's next of
kin as a consequence of the defenders' actions.
It was that affront that Lord Kyllachy concluded justified a claim for solatium for "injury to feelings". Furthermore, by about this time, in Darling v Gray & Son (1892) 19R (HL) 31 Lord Watson had described
reference to actions of assythment as a "worn-out analogy" (page 32). In my opinion, although there is no real
analysis of the legal basis for the claim either in the Opinion of Lord Kyllachy
or in the Opinions of the Judges of the Second Division, the underlying legal
basis of the pursuer's claim in Pollok v
Workman lay in the actio injuriarum.
[35] In the second case in this
series of cases, Conway v Dalziel, the widow and children of a
deceased workman sued his former employers and two doctors for the sum of г500
in respect of damages for injury to their feelings caused firstly by an
unauthorised post-mortem examination on the body of the deceased by the two
doctors and secondly by the doctors' removal and retention of body parts. The employers' Solicitors were also included
as defenders. It seems that the deceased
was seriously injured in the course of his employment and died some months
later. Before his death he had raised an
action of damages in respect of his injuries against his employers. It also appears that on the instructions of
the employers the two doctors, on the day after the deceased's death, went to
the widow's house and carried out a post-mortem examination on the deceased's
body. The pursuers also averred that a
considerable time after the post‑mortem was made they discovered that the
two doctors, in the course of the post-mortem examination, removed a number of
organs from the deceased's body and retained them. The pursuers' position was that the post-mortem
and the removal and retention of organs were unauthorised and, as in Pollok v Workman, that the defenders' actions had "hurt the feelings of the
pursuers".
[36] At first instance the case
was dealt with by Lord Kincairney.
The defenders argued that the action was incompetent and Lord Kincairney
agreed. He expressed his position in the
following way (page 920):
"The pursuers in this
action, who are the widow and all the children of the deceased, have avoided
the objection sustained in Pollok's case,
and the pursuers are entitled to found on that case as an Outer House judgment
in their favour. For my part I concur in
that judgment, and should have followed it in this case but for a distinction
to be afterwards noticed ...
But the defenders have
objected to the competency of the action on the ground that it concludes for
one sum of damages against three separate sets of defenders for different
wrongs ... That objection was open in
the case of Pollok v Workman, and was, I suppose, taken, and
if taken was repelled on the ground, I presume, that only one wrong was
alleged, namely, the post‑mortem examination, in which wrong all the
parties were participant; and I consider that that answer would be sufficient
in this case also, but for one singular but important speciality which did not,
so far as appears, occur in the case of Pollok. It is this, that in Condescendence 5, the
pursuers aver that a considerable time after the examination was made the
pursuers learned that the doctors had cut out and abstracted from the body
certain internal organs mentioned and that these organs were taken away by the
doctors and were still in their possession.
In Condescendence 4 the pursuers say that 'in any event she never
consented to the removal of portions of her husband's body'. These words signify, I think, that although
Mrs Conway might be held to have consented to the post-mortem examination,
yet that the pursuers' action would remain good because of the abstraction of
the organs of the body; and further in Condescendence 6, they say that 'since
they learned of the internal organs having been abstracted, their feelings have
been much more hurt and wounded,' meaning thereby that the amount sued for
would have been less had the internal organs not been abstracted. The pursuers have thus stated this abstraction
and retention of the internal organs as a distinct and separate wrong. But who are charged with that wrong? No-one, as I read the Record, except the
doctors. The pursuers have not said that
they were instructed by the other defenders to remove these organs or to retain
them. The averment is made against the
doctors alone, and it is unconnected with the jury trial. As made, the pursuers would be entitled to
prove that the doctors had committed this wrong for their own private
purposes. Suppose they did so, could the
other defenders be made liable for that wrong?
I do not think they could on this Record. If that be so, then the cases of Barr, Taylor and Sinclair
apply; and on the principle of these cases the action must be dismissed as
incompetent".
[37] The pursuers reclaimed and
argued in particular that there were not two separate wrongs. As a fallback, the pursuers argued that if
the Court were adverse to that view, it would be possible to amend the Record
so as to retain only the averments as to the examination of the body, and leave
out those referring to the removal of the organs. The Lord President (Balfour) at page 921
set out his position as follows:
"This action is directed
against three different sets of defenders - the first, a firm of builders;
the second, their law agents; and the third, two medical men. The pursuers' claim is against all these
defenders jointly and severally. But
when we come to the pursuers' Condescendence we find two separate and distinct
wrongs alleged, viz., the post-mortem
examination of the deceased, and the abstraction and retention of certain
organs of his body. All the defenders
are alleged to have been concerned in the commission of the first wrong - the
first set of defenders as having instructed the law agents, the law agents as
having instructed the doctors, and the doctors as having actually made the
examination. So far the case is
consistent. But the pursuers aver another
and independent wrong viz., the
removal and permanent retention of certain organs of the body. This is a wrong in which the first and second
sets of defenders are not alleged to have been concerned. It is not averred that the organs were
removed and retained at the request or on their instructions, and it could not
be said that the removal and retention were ordinary incidents of a post-mortem
examination. It might perhaps have been
possible to regard the temporary removal of organs for the purpose of
laboratory examination as an incident of a post-mortem examination, but this
cannot be suggested with regard to their permanent retention."
On that basis he concluded that the action as laid was incompetent and
agreed with the Lord Ordinary that it fell to be dismissed.
[38] In expressing agreement
with the Lord President Lord Adam said (page 921):
"The two wrongs
alleged as grounds of action are distinct and separate wrongs, although it may
be said that the first give occasion for the commission of the second. But this is not sufficient to justify the
pursuers in treating them as if they constituted one and the same wrong but
which each and all the defenders were liable ...
It is not an ordinary
incident of a post-mortem examination that separate organs of the body should
be removed and never replaced. This is a
much more serious wrong than the post-mortem examination itself".
The other Judges (Lord McLaren and Lord Kinnear) agreed.
[39] I agree with Mr Campbell
that the case of Conway v
Dalziel provides clear authority for the proposition that the unauthorised
removal and retention of organs from the body of a deceased person constitutes
an independent legal wrong in respect of which relatives can sue for solatium. Again it is the notion of the affront caused
that seems to be the basis of the claim.
[40] The final Scottish case in
this series of cases is Hughes v Robertson. In that case the widow and children of a
deceased miner raised an action against a surgeon who had carried out a
post-mortem examination of the deceased.
The defender had treated the deceased after his accident but also on a
regular basis had carried out post-mortem examinations on behalf of the
deceased's employers in connection with claims arising from accidents at work. The facts of the case are not dissimilar to
the facts in Pollok v Workman and Conway v Dalziel. The deceased sustained an injury in the
course of his employment and according to the pursuers, notwithstanding medical
treatment, died about a week later.
However, in the period between the accident and his death, the deceased
gave instructions that a claim be made against his employers under the
Workman's Compensation Act 1906. That
claim was intimated the day prior to the deceased's death. The deceased died in hospital and shortly
after his death the defender, assisted by two other doctors, carried out a
post-mortem. As in the other two cases,
the pursuers contended that the post-mortem carried out on the deceased was
unauthorised. The pursuers also averred
that in the course of the post-mortem certain body parts were removed by the defender
and destroyed. In relation to the
removal and destruction of body parts Article 13 disclosed that that did
not have an impact upon the position of one of the pursuers in the action. Underlying the other pursuers' position on
this aspect of the case was the contention that the destruction of body parts
obstructed recovery for compensation under the Workman's Compensation Act. The pursuers pled that as a consequence of
"the said illegal proceedings the pursuers have suffered severely in their
feelings ...".
The Lord Ordinary (Lord Dewar) allowed a jury trial and
approved of an issue in the following terms:
"Whether, on or about 7 June 1911, and in the
Kilmarnock Infirmary, Kilmarnock, the defender did
wrongfully make a post-mortem examination and dissection of the body of Thomas
Hughes, miner, the husband and the father of the pursuers respectively, to the
loss, injury, and damage of the pursuers?".
[41] The defenders reclaimed
and the Court decided that the case was unsuitable for jury trial. In the course of his Opinion
Lord Kinnear explained at page 398 that:
"... the case is so laid as to raise a very
troublesome question for the consideration of the tribunal - whatever it be -
that has to consider the facts. The
action is, in my opinion, competent in so far as it is founded on the wrong
done to all the pursuers jointly. It is
plainly incompetent in so far as it is founded on a separate and distinct wrong
done to certain of the pursuers, and not to others who are nevertheless joined
with them in one summons."
He decided to allow a proof and not to allow a jury trial.
[42] Lord MacKenzie also explained (page 399):
"... If the pursuers' averments had been of the
same nature as the averments in the case of Pollok
v Workman, I should then have taken
the view Lord Kyllachy took in that case and held that the case was one
which was appropriate for jury trial.
The leading averments of the pursuers are directed to the same issue
that was adjusted in the case of Pollok
v Workman but they go on to overlay
those leading averments with a great deal of matter which in my opinion might
create a difficulty in disposing of this case by way of jury trial.
No doubt, theoretically,
it would be possible to obtain directions at various stages of the case to keep
the jury right; but when I read the record I am unable to be sure that the jury
might not go entirely wrong in consequence of the way in which the evidence
could be presented which bears upon the articles in the Condescendence that
were referred to, and more particularly, the passages in Condescendence 13. I think it might well be that a jury, under
this issue, might take the view that there had been a failure to prove that
there was no consent; but, at the same time that, although the consent had been
given by the pursuers, they never sanctioned the mode of carrying out the
post-mortem which the pursuers describe in Article 13 and therefore, under
this issue, the result might be, although the pursuers failed to establish what
is essential to obtaining a verdict, nevertheless the jury might, considering
that the defenders' actings had been of such a character, award them damages;
that is to say they might apply, as Lord Adam points out in the case of Conway v Dalziel, the view that the mode of conducting the post-mortem as
described by the pursuers here went far beyond the mere wrong which is done by
performing a post-mortem on a relative without obtaining the necessary
consents".
[43] It would appear therefore,
that in addition to supporting the proposition that an unauthorised post-mortem
can constitute an independent legal wrong, the case of Hughes v Robertson also
lends some support to the line taken in Conway v
Dalziel that the removal and retention of organs can itself constitute a
separate and independent legal wrong.
[44] In the present case the
pursuer does not contend that the post-mortem carried out on her dead child was
unauthorised. However, she does aver
that she did not consent to the removal and retention of organs, and in
particular the brain from her dead child.
The case of Conway v
Dalziel is a clear precedent for the position which she adopts on Record,
and I think that Mr Campbell is correct in saying that the Court's
recognition of such an independent legal wrong is part of the ratio of its
decision. It is a decision that is
binding upon me unless it can be shown that it has been overruled or in some
way superseded. As I have already
indicated, I do not consider that Mr Fitzpatrick's recourse to the
abolition of assythment by the Damages (Scotland)
Act 1976 affects the position.
[45] However, Mr Fitzpatrick
also submitted that the existence of the independent legal wrong focussed upon in
Conway v Dalziel
was superseded by the Human Tissue Act 1961. That Act has been superseded by the Human
Tissue (Scotland)
Act 2006. For present purposes the
relevant provisions of the 1961 Act are to be found in Sections 1 and 2(2)
of the Act and are in the following terms:
"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 that his body or any specified part
of his body 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 sub-section, 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 practical,
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.
2(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 sub-sections (2), (5), (6) and (7) of Section 1 of
this Act shall, with the necessary modifications, apply with respect to the
giving of that authority".
[46] It appears that the primary objective of the 1961 Act was to
expand to other parts of the body the regime introduced by the Corneal Grafting
Act 1952, which dealt solely with use of eyes for therapeutic purposes. That particular objective is provided for by
Section 1 of the Act. In relation
to surviving relatives that Section set up what could possibly be described as
a permissive scheme whereby the removal and use of body parts for "therapeutic
purposes or for purposes of medical education or research" was allowed provided
certain conditions were met. Section 1(2)
instituted a regime of non-objection in which it was envisaged that the
"surviving spouse or any surviving relative" played a part. Critical to the operation of this regime was
that the authority for the removal of body parts and the carrying out of a
hospital post-mortem was to be derived from the "person lawfully in possession
of the body" and it seems clear that in the case of a person who died in a
hospital, in terms of Section 1(7), it was the hospital that was to be
regarded as "the person lawfully in possession of the body".
[47] The second purpose of the Act appears to have been a desire to
clarify doubts that had arisen in relation to the operation of the Anatomy Act
1832. That Act was passed in the wake of
the body snatching activities that were prevalent in the early part of the 19th
Century and in particular the nefarious efforts of Burke and Hare to meet the
demand for corpses. Section 15 of
the 1832 Act provided that the regime set up by the Act did not extend to any
post-mortem "required or directed to be made by any competent legal
authority". The phrase "competent legal
authority" would no doubt include the coroner in England
and the Procurator Fiscal in Scotland,
but possibly not, for example, a hospital post-mortem carried out by a doctor
in order to clarify the cause of death.
What was originally Section 2(1) of the 1961 Act provided that the
Anatomy Act 1832 "shall not be construed as applying to any post-mortem
examination carried out for the purposes of establishing or confirming the
causes of death or of investigating the existence or nature of abnormal
conditions". Although that particular
provision was repealed by Section 13(2)(c) of the
Anatomy Act 1984 it has been re-enacted as Section 1(4) of that Act. That subsection is in the following terms:
"1(4) Nothing
in this Act applies to anything done for the purposes of a post-mortem
examination requested or required or directed to be made by a competent legal
authority or carried out for the purpose of establishing or confirming the
causes of death or of investigating the existence of abnormal conditions."
It will be apparent from my summary of the submissions made to me that, per incuriam,
counsel before me referred to the former Section 2(1) of the 1961 Act and
not Section 1(4) of the 1984 Act, but there is no material difference in
the terms of the two subsections.
[48] The operation of the 1961 Act was one of the issues considered
by Gage J in AB v Leeds Teaching Hospital NHS Trust. At paragraphs 123 to 127 he made the
following observations:
"123. For the claimants, Mr Lissack,
Q.C., made two submissions in respect of Sections 1 and 2. Firstly, he submitted that the two Sections
must be read together with the effect that if a part or parts of a body are
removed at post-mortem, the part or parts may not be retained by the hospital
unless Section 1(2) has been complied with in respect of both post-mortem
and the retention of any part of the body so retained. In the absence of specific non-objection or
consent any retention of a part of a body will be unlawful.
124. Secondly, Mr Lissack,
Q.C., submitted that non-objection or consent can only be validly obtained from
a surviving relative who understands precisely what is involved in a
post-mortem examination. In other words,
the relative must have drawn to his or his attention the fact that at
post-mortem a part of a body may be removed and retained.
125. The defendants submitted
that Section 1 and Section 2 provide for two different regimes. They emphasised the different purposes
provided for by Sections 1 and 2.
They submitted that non-objection or consent to a post-mortem includes
non-objection or consent to all the necessary procedures including removal and
retention of organs necessarily involved in a post-mortem examination. So far as the claimant's second submission is
concerned the defendants submitted that the sub-section makes no requirement
for information to be given to a surviving relative such that a failure to
provide such information would invalidate the non-objection or consent.
126. On the first issue I prefer
the arguments of the defendants. I
accept that Sections 1 and 2 provide for different regimes for two
different situations. In the
circumstances, as a matter of statutory construction, in my judgment, what is
required before a post-mortem is carried out is no more nor
less than that the requirements of sub-section 2(2) are complied
with. Once they have been complied with
a post-mortem can be carried out. If the
"purpose of establishing or confirming the causes of death or of investigating
the existence or nature of normal conditions" properly require organs to be
removed and retained for examination, in my judgment, no further consent is
required. I accept that the position
will be different if the post-mortem examination, in addition, contemplated use
of a part or parts of a body for therapeutic, educational or research purposes. I am quite satisfied that the purposes of the
post-mortems in none of the three lead cases involved anything other than a
diagnostic purpose.
127. As to Mr Lissack's
second submission in my judgement this also fails as a matter of statutory
interpretation. It will however, call
for consideration again when considering negligence. Although in this case all the doctors have
referred to the necessity of consent being obtained before a post-mortem can be
carried out, as Miss Smith, Q.C., pointed out, the statutory provision is
for non-objection. There may be little
conceptual difference between consent and non-objection, but the latter in my
view implies a more passive approach than a requirement for consent. Whether or not there is a difference between
non-objection and consent, I am quite satisfied that Section 2 of the 1961
Act requires no more than a consent to a post-mortem being obtained without
further explanation. As I shall indicate
later in this judgment that does not mean that if a relative asks questions or
seeks further information those questions should not be answered nor the
information supplied".
[49] Surprisingly also, Gage J (and counsel) proceeded upon the
basis that Section 2(1) of the 1961 Act was still in force as part of that
Act. Be that as it may, the conclusion
that there were two distinct regimes is plainly correct and indeed is
reinforced by the fact that post-mortems that were to be carried out for
diagnostic purposes were to be dealt with by Section 1(4) of the Anatomy
Act 1984. The relationship between
Sections 1 and 2 of the 1961 Act may have led to doubts as to how they
operated together in relation to the issue of non-objection or consent, but it
is clear from Section 1(4) of the Anatomy Act 1984 that the non-objection/consent
regime did not apply to post-mortems carried out for diagnostic purposes. Mr Campbell argued that the carrying out
of a post-mortem did not necessarily involve the removal and retention of
organs even if the purpose of the post-mortem was diagnostic. That may be so, but standing the terms of
Section 1(4) of the Anatomy Act 1984, if organs did require to be removed and retained for diagnostic purposes, consent
for that was not required. What I would
say, however, is that the regime created by Section 1(2) of the Human
Tissue Act 1961 could have applied to a post-mortem carried out for diagnostic
purposes once the diagnostic objectives had been achieved. If the diagnosis did not require removal and
retention then I see no reason why, if the pathologist wished to proceed to
remove and retain organs for reasons within the terms of Section 1, the
regime provided by Section 1 could not apply.
[50] In my opinion the Human Tissue Act 1961 (or indeed the Anatomy
Act 1984) did not supersede the existence in Scots law of the independent legal
wrong of the unauthorised removal and retention of organs if the purpose of the
post-mortem was non-diagnostic or if the diagnostic purpose had been fulfilled. The key word is "unauthorised". The regime set out in Section 1(2) of the
1961 Act whereby the person lawfully in possession of the body of a deceased
person may authorise the removal and retention of organs was qualified. That person was under a duty to make such
"reasonable enquiry as may be practical" so as to have no reason to believe
that "the surviving spouse or any surviving relative of the deceased objects to
the body being so dealt with". The
regime may have been one of non-objection but nevertheless it did, in practical
terms, provide for the consent of surviving relatives to be obtained to the removal
and retention of organs. If the drill was
not followed then the removal and retention of organs was unlawful. It is perhaps not without significance that
the class of person who could object was very widely cast, "any surviving
relative". That suggests to me that
Parliament intended that once objection was made, there would be no need to
explore in any particular way the proximity of the relationship between the
surviving relative and the deceased.
[51] Mr Fitzpatrick's purpose in referring to the Human Tissue
Act 1961 was to advance a defence that the pursuer had failed to make averments
that took her case out of the diagnostic regime, and that accordingly the
removal and retention of Nicola's brain could not be said to have been
unlawful. Unfortunately, the defenders
have not pled this particular line of defence.
Although Mr Campbell did not pursue this line, it seems to me that
as a matter of fairness the defenders ought to have done so. That might have prompted some further
elaboration of the issue in the pleadings.
In any event Mr Campbell's response to Mr Fitzpatrick's attack
was that enough was said on Record to satisfy the test for relevancy. The relevant averments are as follows:
"Dr Haddock
indicated that the purpose of the post-mortem would be to help other babies
born with the same congenital defect and to evaluate the ECMO trial".
[52] It may be that had the matter been focussed upon in the
pleadings more might have been said, but in any event, I am satisfied that I
cannot conclude at this stage that the pursuer is precluded from relying upon
Section 1(2) of the 1961 Act. The
averments made could mean that the ultimate purpose of the post-mortem was for
research purposes.
The English Position
[53] Mr Fitzpatrick in his submissions, in
arguing against the existence of an independent legal wrong, also relied upon
certain observations made by Gage J in the case of AB v Leeds Teaching Hospital
NHS Trust. I now propose to consider
the conclusions arrived at in that case in relation to this particular
issue.
[54] The claimants in that case argued that they would be entitled
to recover on the basis that in English law there was a tort of wrongful
interference with a body. The argument
proceeded on the basis that for such a tort to exist two requirements had to be
met; first of all the claimant had to establish a duty/right to possess the
body of the deceased, and secondly the claimant had to prove that the defendant
interfered with that duty/right by retaining and/or disposing of body parts
without lawful authority. In the course
of the argument reference appears to have been made to two of the Scottish
cases, Pollok v Workman and Hughes v Robertson. Reference was also made to the Canadian case
of Edmonds v
Armstrong Funeral Home. Much of the
analysis contained in the judgment of Gage J is devoted to considering who
was entitled to possess the organs that had been removed from the deceased
children. Starting from the principle
that there was no property in the body of a deceased person, he went on to
consider case law to support the proposition that parts of a corpse were
capable of being property. He also
considered that, although a parent of a child may have a duty to bury a
deceased child, the duty to bury was not an unlimited one. For example, in the case of a coroner's
post-mortem, the coroner's authority was such as to permit the pathologist
authorised to carry out the post-mortem to possess the body at least until the
coroner's purpose or inquiry had been concluded. Gage J expressed his conclusions in the
following way:
"148. In my judgement the
principle that part of a body may acquire the character of property which can
be the subject of rights of possession and ownership is now part of our law. In particular, in my opinion, Kelly's case establishes the exception
to the rule that there is no property in a corpse where part of the body has
been subject to the application of skill such as dissection or preservation
techniques. The evidence in the lead
cases shows that to dissect and fix an organ from a child's body requires work
and a great deal of skill, the more so in the case of a very small baby such as
Rosina Harris. The subsequent production
of blocks and slides is also a skilful operation requiring work and expertise
of trained scientists".
[55] In dealing with the two Scottish cases to which he was
referred and the Canadian case Gage J said:
"155. In my judgement the first
thing to note is that the three decisions upon which the claimants relied are
all cases where the post-mortems were unauthorised. In the lead cases all the post-mortems were
in my opinion authorised either by consent pursuant to the provisions of the
1961 Act or by express consent or under the coroner's authority. It seems to me that it must follow that when
the organs were removed from the bodies the action of removing them was lawful
and at that time those organs were lawfully in the possession of the
pathologist undertaking the post-mortem or any other pathologist properly
instructed to carry out a further histological examination.
156. Thereafter once the
post-mortem examinations have been completed the law as to what rights are
vested in the parents or pathologist is far from clear. For myself I prefer the view expressed by the
authors of Clerk & Lindsell that on the assumption that the Doodeward exception applies the
pathologist became entitled to possess the organs, the blocks and slides at
least until a better right is asserted.
Mr Lissack, Q.C., relies on that part of the final Judge's sentence
of Griffiths CJ's judgment in Doodeward
to which I have referred which reads ... [[at least as against any
person not entitled to have it delivered to him for the purpose of burial ...]]. He submits that Griffiths CJ contemplated
that someone with a right to bury the body would have a better right to the
part of the body even if it came within the exception.
157. Whilst I see the force of
this submission it must be remembered that the body in Doodeward had never been buried.
In these cases the bodies were buried shortly after the post-mortems and
before the process of examination of the organs had been completed. If I am right in concluding that consent to
carry out a post-mortem necessary involves consent to all the proper procedures
involved in a post-mortem the removal of the organs was lawful and the right of
the parents to possess them, based on a duty to bury, does not arise. This would seem to accord with Peter Gibson LJ's
judgment in Dobson".
[56] Gage J concluded his analysis of the position in English
law as follows:
"161. Finally I return to the
cause of the action for which the claimants contended. Assuming that my conclusions are correct that
the claimants have no right of burial and possession of organs lawfully removed
at post-mortem and retained, in my judgement, there can be no action for
wrongful interference with the body of the child. If, on the other hand a parent or parents
when consenting to a post-mortem specifically asked for the return of an organ
I can see that in certain circumstances it might be arguable that a cause of
action based on conversion exists, if conversion is what is being alleged by
the claimants in this group action. But
in the absence of such a cause of action in respect of a deceased person being
recognised by an English Court I am not prepared to hold that one does exist ... In addition, as will appear later in this judgment,
if a claimant makes a stipulation that his or her consent to a hospital
post-mortem is conditional on all organs removed being put back in the body,
the defendants concede, rightly in my opinion, that this gives rise to a duty
of care by the doctor to pass on that condition to the pathologist. It is further conceded that failure by the
doctor to do so or by a pathologist to heed such a condition would prima facie amount to a breach of that
duty of care. In those circumstances
where a claim for negligence can arise, I see no justification for constructing
another cause of action which is not subject to the various common law controls
inherent in any claim in negligence".
[57] It does not appear that Gage J was referred to the case of
Conway v Dalziel, but in any event, it is clear from his analysis that his
approach to this issue was very much driven by considering a parent's duty to
bury a dead child as against the right of who may be entitled to possess the
body or parts of the body at a particular time.
Also, his analysis was influenced by the fact that, in the three lead
cases that he was considering, the post-mortems were being carried out for
diagnostic purposes and not, in his opinion, caught by Section 1(2) of the
Human Tissue Act 1961. Although there is
little legal reasoning in the opinions in the three Scottish cases,
notions such as upon whom rested the duty to bury the body of the deceased and
possession do not feature. Rather, as I
have already indicated, what appears to lie at the heart of those decisions is
the fact that near relatives suffered affront by the unauthorised actings. The Judges
in the Scottish cases considered that, in the circumstances, the unauthorised
post-mortems and the unauthorised removal and retention of body parts,
disclosed such an insensitivity to the feelings of near relatives following
upon the death of a loved one, that such conduct constituted an affront to
their dignity as relatives of the deceased so as to justify being classified as
a civil wrong in which damages by way of solatium
could be claimed. It does not seem to me
the Gage J's approach affects the Scottish position.
[58] Also, although the Human Tissue Act 1961 is superseded by the
Human Tissue (Scotland)
Act 2006, I see nothing in that Act that affects the views expressed
above. Indeed, if anything, that Act
reinforces the legal policy underlining the existence in Scots law of the
independent legal wrong of the unauthorised removal and retention of organs.
[59] As I have noted in paragraph [18] Mr Campbell
in the course of his submissions also referred to the Canadian case of Edmonds v Armstrong
Funeral Home Limited. That was a
decision of the Appellate Division of the Supreme Court of Alberta. In his statement of claim, the plaintiff
alleged that the defendants, the funeral home in which the corpse of his
deceased wife was placed, allowed a post-mortem to be carried out on the body
of the deceased without his permission.
The plaintiff also alleged that a body part had been removed from the
deceased's corpse.
[60] In delivering the judgment of the Court, Harvey CJA at
page 679 placed particular reliance upon the following passage in Clerk & Lindsell on Torts (8th Edition)
(page 239):
"In the dead body
of a human being there is no property, but the executors or administrators of
the deceased or other persons charged by the law with the duty of interring the
body have a right to custody and possession of it until it is properly
buried. Any violation of that right to
possession, such as an unauthorised post-mortem examination, is a trespass for
which an action lies."
Harvey,
CJA then continued at page 679-680:
"The authority
for this proposition is two Scottish cases, which are not available for
examination and Mr Sinclair suggests that the Scottish law in this respect
may differ from the English. There is,
however, no suggestion in the text that is other than a statement of English
law ...
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."
[61] It seems therefore, that although two of
the Scottish cases were referred to, they were not before the Court and the
Court appeared to proceed on the basis that was ultimately rejected by
Gage J. in AB v Leeds Teaching Hospital NHS Trust. As I have already explained, notions such
as possession and rights of burial do not form the basis for the decisions in
the Scottish cases and accordingly I did not find the case of Edmonds v Armstrong Funeral Home Limited to be of
particular assistance.
Conclusions
on Independent legal wrong
[62] In my opinion Scots law recognises as a legal wrong for which
damages by way of solatium can be
claimed the unauthorised removal and retention of organs from a dead body. The Scottish cases suggest that the true juridical
basis for this type of claim lies in the actio injuriarium. English law,
with its different legal history may not recognise the existence of such a
wrong, but that does not impact upon the position in Scotland.
[63] Accordingly, in relation to this part of the case being made by
the pursuer, I propose to allow the averments to go to probation. I should perhaps point out that I heard no
argument in relation to how the solatium
claimed for hurt feelings in the three Scottish cases would fit into the modern
legal landscape that requires psychiatric injury or nervous shock to be proved
in order to sustain a claim in negligence.
In principle solatium for
"hurt feelings" caused by affront based upon the actio injuriarium is a different animal to the solatium that can be awarded to a claimant for physical or
psychiatric injury. Prima facie the threshold for recovery for hurt feelings is lower
than that for psychiatric injury. Both
parties seemed to proceed on the basis that solatium is the same whether the claim
is based upon an independent wrong or negligence, but I am not convinced that
that is correct. Accordingly, and in the
absence of detailed submissions on this issue, I would not have refused
probation on this head of claim even if the pursuer fell foul of the tests
necessary to sustain a claim for psychiatric injury based on negligence.
Negligence
[64] Mr Campbell argued that in the circumstances set out on
Record a duty of care could exist on the part of the defenders even if the
relationship between Dr Haddock (the doctor who arranged the post-mortem)
and the pursuer was not that of doctor-patient, but that in any event the
pleadings disclosed that a doctor-patient relationship did exist when permission
to carry out the post-mortem was sought.
I propose first to consider the issue of doctor-patient relationship.
Doctor-Patient
Relationship
[65] Whether in the circumstances akin to the circumstances of this
case the relationship between the pursuer and the medical staff could be
described as doctor‑patient, was one of the issues considered by Gage J
in AB v Leeds Teaching Hospital NHS Trust.
As I have already explained, the circumstances of the lead cases
considered by him in that litigation were similar to the circumstances
disclosed in the pleadings of the pursuer in this case. Gage J heard evidence over many days
from members of the medical profession as to what they considered their duties
to be when seeking consent to post-mortem examinations of dead children. His conclusion was that "the clinicians
readily assented to the proposition that they owed a professional duty of care
to parents when obtaining consent to a post-mortem examination". In considering the legal position he
concluded (paragraph 201-206):
"201. In my opinion, the evidence
of the doctors and the experts show that doctors can owe a duty of care to a
mother after a death of her baby on a doctor-patient basis. In the case of a child born alive but dying
shortly afterwards the paediatrician would inevitably have a duty to advise a
mother about future pregnancies. Dr
Clifford said as much. The whole purpose
of the post-mortem examination of Rosina Harris was to help Dr Clifford
advise Mrs Harris on the question of whether Rosina's abnormalities were
genetic or whether she could be reassured in respect of future
pregnancies. It seems to me that when
advising Mrs Harris on that matter Dr Clifford was advising her as a
treating doctor within the doctor-patient relationship notwithstanding the fact
that he was a paediatrician and that his patient in the first instance was
Rosina. I can foresee that negligent
advice given by a doctor in relation to future pregnancies could give rise to
an action by a mother at some future time if pregnant with another abnormal
baby.
202. So far as Mrs Shorter
is concerned the same considerations apply save that Mr Fairbank, as part
of the obstetric team treating Mrs Shorter, was more clearly advising her
in the context of a doctor-patient relationship. Mrs Shorter as well as Laura, was his
patient up to the time of birth.
Thereafter Mrs Shorter remained his patient. Mr Gillner, the senior consultant on the
team, needed to give advice to Mrs Shorter about future pregnancies. Again, part of the process of giving the most
informed advice would involve obtaining results from a post-mortem examination.
203. In my opinion taking
consent for a post-mortem was not just an administrative matter bringing a
doctor into contact with a mother. It
was, as Professor Craft and Mr Clements agreed, part of the
continuing duty of care owed by the clinicians to the mother following the
death of a child. In the circumstances,
in my judgement, the necessary test of proximity between the claimants and
clinicians is established; and the facts of these claims can be distinguished
from the facts in Powell".
[66] Mr Campbell in his submissions placed reliance on the
passages in Gage J's judgment to which I have just referred and in
particular to his observations in paragraph 203. Certainly whether a doctor-patient
relationship could exist would be a matter of fact and degree in each
case. Gage J appears to have been
influenced by the fact that, in each of the two cases he was considering by
this stage, the evidence disclosed that advice had to be given to the mothers
in relation to future pregnancies, and in one of the cases, the claimant had
been receiving treatment from the obstetric team. The pursuer in the averments I have
summarised in paragraph [4] and set out in paragraph [5] does not suggest
that at any stage as an individual she received any treatment during the time
Nicola was being treated. Nor does she
suggest that she required to be advised on any aspect of her child's death that
might affect her as the mother of the child.
The focus of her averments are directed towards
the treatment being given to Nicola.
However, Gage J's conclusion that a doctor-patient relationship could
exist was also influenced by the position adopted in evidence by the
clinicians, namely, that after the death of children they did owe a
professional duty of care to parents when obtaining consent to a
post-mortem. Certainly the seeking of
consent for a post-mortem has to be classified as a significant event resulting
in contact between a doctor and a parent, and particularly so when consent is
being sought in circumstances where for a period of time the parent has been
advised by the medical staff as to the progress of the child. In this case it was only when it was clear
beyond doubt that her child was not going to survive that the pursuer required
to give her permission to discontinue the support system. Dr Haddock, according to the defenders,
appears to have been the clinician responsible for the child's care, and no
doubt when seeking permission to discontinue the support system, he would have
advised the pursuer that there were no prospects of survival. According to the pursuer's averments it was
shortly after that occurred that consent to the post-mortem was sought.
[67] Nevertheless that background in my view falls short of
providing a basis for setting up a doctor patient relationship at the time
consent to the post-mortem was sought.
There is no hint in the pleadings that the pursuer was receiving any
form of treatment at that time. Indeed,
the pursuer's position is that when consent was sought, no member of the
medical staff made contact with her. In
paragraph 203 of Gage J's judgment that I have just quoted, he
concludes that "the necessary test of proximity between the claimants and
clinicians is established". That was the
passage founded upon most strongly by Mr Campbell. I can certainly see that a relationship of
proximity could be established in such circumstances but that does not resolve
the question whether the relationship of proximity flows from the conclusion of
fact that a doctor-patient relationship existed or whether the relationship of
proximity exists independently of such a relationship. There is no difficulty in concluding that
once a doctor-patient relationship is said to exist as a matter of fact that a
relationship of proximity giving rise to a duty of care could also exist. What I have difficulty with is the suggestion
that a relationship of proximity between a doctor and a parent who is not a
patient could in itself create a doctor-patient relationship. It seems to me that in considering whether a
doctor-patient relationship can be said to exist, there is a threshold question
of fact to be determined. It is the
absence of any averments that might surmount that threshold question of fact
that, in my judgement, is fatal to Mr Campbell's contention that a
doctor-patient relationship could be inferred.
[68] Had the pursuer's case on negligence depended upon relevant
averments in support of a doctor-patient relationship I would not have allowed
her averments on that aspect of her case to go to probation. Shortly I propose to consider whether the
defenders owed the pursuer a duty of care that was not dependent upon the
existence of a doctor-patient relationship.
Before doing so, however, and in the event that I am wrong in the view I
take on the issue of doctor-patient relationship I propose now, on the
assumption that the pursuer's averments are habile to set up such a
relationship, to consider what the scope of the duty of care might be.
[69] In relation to the scope of such a duty of care, the question
arises whether that duty would involve, when consent was being sought to a
post-mortem, telling the parent that organs may be removed and retained. That is the position adopted by the pursuer
in her pleadings and, although the reference to "informed permission" was
challenged by Mr Fitzpatrick, I understand from that reference that the
pursuer is contending that she ought to have been told that organs would be
removed and retained before her consent to the post-mortem was obtained.
[70] In AB v Leeds Teaching Hospital NHS Trust Gage J,
in dealing with the scope of the duty of care expressed his conclusions in the
following way (paragraph 206):
"Once the doctor-patient
relationship is established, as I hold it is, in my view, the clinician owed a
duty of care when seeking consent for a post-mortem examination. Although the statutory duty is to ensure
non-objection, that must, in my judgement, involve some explanation of to what
the parents are being asked not to object.
Again, in my opinion, that must involve some explanation of the
procedures of a post-mortem of which the removal and retention of organs is a
relevant part. In the circumstances, I
hold that the duty of care extended to giving the parents an explanation of the
purposes of the post-mortem and what it involved including alerting them to the
fact that organs might be retained".
I agree with the logic underlining
these observations. As the organ removal
controversy disclosed, the parents of children upon whom post-mortems were to
be carried out did not realise that in the course of the post-mortem organs
were to be removed and retained. The
context in which Gage J made his observations was one where he had
concluded that the purpose of the post-mortems in the lead cases was a
diagnostic one, but nevertheless he was satisfied that if consent to a
post-mortem was obtained, the duty of care when seeking consent included
informing the parents that organs might be removed and retained. In my opinion, when the post-mortem was being
carried out under reference to Section 1 of the Human Tissue Act 1961, and
against a background of steps being taken to inquire as to whether there may be
any objection to the removal of organs, the position would be even
stronger. Also, I consider it to be
relevant, when considering the scope of the duty, that
as a matter of legal policy Scots law recognises as an independent legal wrong
giving rise to a claim of damages for solatium,
the unauthorised removal and retention of organs.
Freestanding
duty of care
[71] Mr Campbell, as I have indicated, also argued that a duty
of care existed in this case even if there was no doctor-patient
relationship.
[72] In AB v Leeds Teaching Hospital NHS Trust Gage J
suggested that, in the absence of the doctor-patient relationship, the
clinicians involved in that litigation would not have owed a duty of care to
the parents. No authority was put before
me in support of the existence of a self standing duty of care owed by a doctor
to a third party outwith the doctor-patient relationship in circumstances in
any way similar to the circumstances of this case. Since the law of negligence in relation to
the recognition of the existence of a duty of care develops in an incremental
way the absence of any authority is an indication that it is necessary to
proceed with some caution in deciding whether a duty of care could exist to a
parent by a doctor in the circumstances of this case. The guiding principles are contained in the
three element test discussed in Caparo
Industries plc v Dickman [1990] 2
A.C. 605, and that in addition to the foreseeability of damage, there
should also exist a relationship of proximity and that the situation should be
one in which the court considers it fair, just and reasonable that a duty of
care of a given scope should be imposed.
Although there are three elements that is
not to say that one element may not influence another (see Lord Bridge
at page 617G-618E and Lord Oliver at 632G-633D.) I propose first to consider the issue of
foreseeability.
Foreseeability
[73] Since the pursuer sues for damages for psychiatric injury in
the absence of physical injury an issue does arise
when considering whether or not injury was foreseeable in the circumstances,
whether the pursuer falls into the category of a primary or secondary
victim. The submission made by
Mr Fitzpatrick was that the pleadings did not disclose into which category
the pursuer might fall.
[74] I was not taken in any detail into the tract of authority that
provides guidance as to into which category a particular individual may fall. However the tract of authority that provides
guidance on this question was considered in some detail by Gage J in AB v Leeds
Teaching Hospital NHS Trust. Having
considered the case law he concluded (paragraph 199):
"The question of whether a claimant
is a primary or secondary victim is [[essentially a question of fact]]
(per Lord Goff in Frost at page 493). Guided by the various passages in the above
decisions my conclusion is that they properly fall into the category of primary
victims. In reaching this conclusion the
following factors are, in my opinion, relevant and important. First, unlike the secondary victims in Alcock and Frost the foreseeability test in these claims can be applied before
the event, the event being the obtaining of consent for a post-mortem by the
doctors. They are not cases where that
test can only be conducted ex post facto. The claimants at all times before and after
that event are readily identifiable.
Secondly, in my view there is force in the argument that the children
were not primary victims. Neither the
clinicians nor the pathologists could possibly have owed any duty of care to
them after their death. In my opinion,
it follows that if the claimants are victims at all they must be primary
victims. Thirdly, if, but for this
argument, there would exist a doctor-patient relationship, in my judgement,
these claims fit more clearly into category 1 of Hale LJ's
four categories than any of the other three. The nature of the doctor-patient relationship
has frequently been described akin to a contractual relationship. In these claims, the alleged negligence of
the clinicians in obtaining consent from the claimants,
is the very thing which, it is alleged, caused the psychiatric injury".
[75] Mr Campbell in his submissions relied on Gage J's
conclusions in AB v Leeds Teaching Hospital NHS Trust, and
I did not understand Mr Fitzpatrick to seriously challenge Gage J's
analysis in the passage just quoted.
Guided by that analysis, I am not prepared at this stage to conclude
that the pursuer would not fit into the category of primary victim even if the
relationship was not that of doctor-patient.
[76] The defenders' knowledge of the pursuer's particular
vulnerability having regard to her previous medical history is not fully
spelled out by the pursuer in her pleadings, although the defenders do admit
that the pursuer did have a history of psychiatric illness prior to the birth
of her child. Again, I consider that
more could have been said by the pursuer in support of the claim for damages
for psychiatric injury, but I do not feel that I can conclude at this stage
that she will fail on this issue of foreseeability. Mr Fitzpatrick was particularly critical
of the pursuer's averment on foreseeability and in particular the reference to
"pathological harm". For my part I would
read that averment simply as an assertion that it was reasonably foreseeable
that someone in a position of the pursuer would suffer psychiatric harm on
discovering that her child's brain had been removed and retained without her
knowledge at the time of the post-mortem.
Proximity
[77] It seems to me that the critical question in determining
whether or not, in the circumstances of this case, a duty of care was owed to
the pursuer when consent was sought for the post-mortem examination, is whether
the relationship that existed at that time between the requesting doctor and
the pursuer was of sufficient proximity as to give rise to such a duty of
care.
[78] Generally a doctor does not treat a patient without consent,
and in the case of a young child that consent is normally obtained from the
child's parent. No doubt a parent's
right to give consent is tempered by a duty to act in the best interests of the
child, and in a case of this kind, inevitably the
parent would be highly influenced by the advice given by the treating
doctor. It was following upon the advice
given to her that the pursuer consented to the life support system being turned
off, and it was that decision that brought her child's life to an end. In these circumstances the pursuer was
jointly involved with the treating doctor in making life and death decisions in
connection with her child, and it seems to me that this is an important
background when posing the question as to whether or not, at the time consent
for the post-mortem was requested, there existed sufficient proximity between
the pursuer and the treating doctor as to give rise to a duty of care.
[79] The critical time of course is when consent for the post-mortem
was actually obtained from the pursuer.
That appears to have been shortly after Nicola died. As I have already said, the seeking of consent
for a post-mortem was a significant event resulting in contact between a doctor (albeit through an intermediary according to the
pursuer) and a parent. Here, according
to the pursuer's averments her consent was obtained against a background during
which the pursuer had been relying upon the medical staff for advice in
connection with her child's treatment. It
has to be remembered that the essence of the pursuer's complaint is that she
has suffered injury because of a failure to tell her that organs might be
removed and retained during post-mortem.
Although the focus at this stage has to be on the pursuer's pleadings,
the defenders plead that it was their practice not to "confront the parents
with the precise details" involved in a post-mortem (12D-E). Accordingly, Dr Haddock may very well
have decided for what he considered good reasons, not to convey the information
that organs might be removed and retained.
But that process tends to indicate that on behalf of the defenders he
was assuming responsibility towards the pursuer to convey only what he wanted
to disclose. Furthermore it can be
argued that what was being disclosed was being done in the knowledge that the
pursuer would rely upon what was communicated to her in deciding whether or not
to consent to a post-mortem. Indeed,
according to the pursuer's averments, Dr Haddock's first request was
rebuffed and it was only when "Dr Haddock indicated that the purpose of the
post-mortem would be to help other babies born with the same congenital defect
and to evaluate the ECMO trial" that the pursuer relented and consented to the
post-mortem being carried out.
Furthermore, and although mere foreseeability is not sufficient to give
rise to a duty of care, it is relevant to have regard to foreseeability of
injury in deciding whether or not a relationship of proximity could exist,
particularly in a case involving personal injury. Nor should the legislative background of the
Human Tissue Act 1961 involving as it does a policy of contact with relatives in
certain circumstances in connection with the removal and retention of organs be
lost sight of. In the circumstances, I
am of the view that it is arguable that the relationship between the pursuer
and Dr Haddock in particular at the critical time was sufficiently
proximate as to give rise to a duty of care of a similar scope to the duty of
care I have discussed in paragraphs [69] and [70].
[80] Neither counsel addressed me on the issue as to whether it
would be fair, just and reasonable to impose a duty of such a scope for the
benefit of the pursuer in this case. It
may be that both parties took the view that, once a duty of care existed to
prevent foreseeable personal injury, it would follow in this case that it would
be fair, just and reasonable to impose such a duty of care. Certainly it could not be said that by the
time consent was sought for the post mortem, there was any risk of potential
conflict between any duties of care that may have been owed to the child and
any duty of care that may now be owed to the pursuer. There could be no duties of care owed to a deceased
child. In any event I am not inclined to
refuse probation in the absence of such argument.
[81] I am conscious of the fact that Gage J in AB v Leeds Teaching Hospital
NHS Trust would not have held that such a duty of care existed. It does not appear that the arguments
presented to him had any other focus than a duty of care flowing from a
doctor-patient relationship. Gage J did say
that the defendants in that case conceded that, if a parent consented to a
post-mortem being carried out on his or her child on condition that any removed
organs were put back in the body before burial, in such circumstances the
doctor would owe a duty of care to ensure that the condition was communicated
to the pathologist. (Paragraph
183). Apparently that concession
proceeded on the basis that in these circumstances the doctor assumed
responsibility towards the parent in relation to that condition. The issue arose in AB v Leeds Teaching Hospital
NHS Trust because in one of the lead cases an issue of fact arose as to
whether in giving consent to a post-mortem the parents stipulated that biopsies
could be taken but any organs had to be put back into the deceased child's body
(see paragraph 51 of the judgment). Apparently,
the mother of the deceased child in the lead case under consideration had had
previous work experience in the medical records department of a maternity
hospital in Bristol and had some
knowledge of post-mortems (see paragraph 30 of Gage J's judgement). It was that experience that prompted the condition
imposed in relation to the return of organs.
[82] It seems therefore that Gage J would have found a duty of care
existed if the informed parent raised the issue of removal and retention and
imposed conditions even in the absence of a doctor-patient relationship. In my view, the existence of a duty of care
in such circumstances should not depend upon the state of a parent's knowledge
as to what may occur at a post-mortem.
There is a certain unfairness in saying that a duty of care arises when
a parent is fully informed as to what may happen, and consequently is able to
impose conditions, but no such duty arises to the parent who gives consent in
ignorance, without being offered the opportunity of imposing conditions. It does not seem to me that a relationship of
proximity should depend upon whether the parent, in such circumstances, is
aware or ignorant of important facts that the doctor does not volunteer.
The
pleadings on practice
[83] In paragraph [7] I set out the averments made by the
Pursuer on negligence. The main thrust
of these averments is that the defenders failed to devise and maintain a system
whereby no post-mortem examination would be carried out if the removal and retention
of organs was in contemplation unless the consent of the pursuer was
obtained. There is also a general
averment that it was the defenders' duty "to take reasonable care not to remove
et separatim
not to retain body parts from Nicola without having sought and obtained the
pursuer's consent thereto ...". In the Article of Condescendence that
sets out the duties the pursuer does not specifically refer to either
Doctors Haddock or Patrick.
However, in Article 4 the pursuer makes the following averments
directed both at Dr Haddock and Dr Patrick:
"Dr Haddock
failed to speak directly to the pursuer to explain what the post-mortem
entailed and that organs and tissue would or might be removed, either
temporarily or for retention for a period of time. No ordinarily competent doctor, exercising
ordinary skill and care, would have failed so to do at the material time. Separatim,
Dr Patrick failed to verify that informed permission had been given,
before carrying out the post-mortem examination and remove organs and their
retention. No ordinarily competent
Pathologist, exercising ordinary skill and care, would have failed so to do at
the material time" (page B-D).
I find it odd that the pursuer has
not followed through into the averments of duty the specific allegations made
against Doctors Haddock and Patrick but, be that as it may, the complaint
made by Mr Fitzpatrick was that the pursuer had failed to aver that the
practice adopted by the defenders of not informing parents in relation to the
removal and retention of organs was an unreasonable one.
[84] The practice as to what information was usually given to
parents by doctors when seeking consent for a post-mortem examination was one
of the issues considered by Gage J in AB
v Leeds Teaching Hospital NHS Trust. He concluded that there was no real dispute
among the clinicians who gave evidence that the usual practice, when obtaining
consent from parents for a post-mortem examination, was that doctors would not
give information to relatives about the procedures involved in such an
examination which it was felt the relatives did not need and which they would
find unpleasant and upsetting. The
argument made on behalf of the claimants in that case was that as a matter of
law a practice which was unreasonable could not be defended even if it was
universally accepted. It was also argued
on behalf of the claimants that the practice adopted by the medical profession
was the result of "irresponsible conservatism" and that the reaction to the
organ retention scandal tended to show how unreasonable the practice had
been. Gage J's conclusions can be
summarised under reference to the following extracts from his judgment:
"230. ... The argument of the
defendants, based on evidence of a practice universally adopted by clinicians
over many years, is a strong one. Yet
having carefully considered the evidence and examined the argument I find
myself unable to accept it. Looked at
objectively, from a common sense point of view, in my judgement, a significant
number, if not all, bereaved mothers of recently deceased children would want
to know if organs from their deceased child were to be retained following a
post-mortem examination. ...
235. There is in my judgement a
considerable difference between a parent consenting to a post-mortem and a
parent consenting to an organ or organs being retained by doctors after a
post-mortem examination. Since the
doctors agree that parents are entitled to have their wishes in respect of
their deceased child's body respected and complied with it seems to me those
wishes cannot be complied with unless it is explained to the parents what is
involved. ...
237. Finally, the evidence shows
that the practice adopted was blanket practice carried out by virtually all
clinicians. Insofar as it involved the
exercise of a therapeutic judgement it was one which does not appear to have
been exercised on a case by case basis.
The general view was that such information was unnecessary and likely to
be distressing to parents. But there is
no evidence that clinicians considered the matter individually with each parent
or family. To take an example from the
lead claims, although the issue does not arise in their claim, Mr and
Mrs Carpenter would, in my judgement, have been quite capable of coping
with this information at the time of Daniel's death. In any event, in my opinion, there was very
little risk of parents being caused greater distress by being given the
additional information.
It would have been very
simple and easy for a clinician to have provided this information and generally
they ought to have done so. If the
clinician did not know what was involved in a post-mortem, in my opinion, as Dr
Moore said, he ought to have known. In
the circumstances, my conclusion is that the practice of not warning parents
and in particular a mother that a post-mortem might involve the removal and
retention of an organ cannot be justified as a practice to be adopted in all
cases".
[85] In coming to that conclusion, Gage J relied on what was said in
Bolitho v City & Hackney Health Authority 1998 A.C. 232. In that case Lord Browne-Wilkinson in a
speech with which all the other members of the Court agreed said at
pages 241-242:
"My Lords, I
agree with the 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 ....
The use of
these adjectives - responsible, reasonable and respectable - all show that the
Court has to be satisfied that the exponents of the body of opinion relied upon
can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so
often do, the weighing of risks against benefits, the Judge before accepting a
body of opinion as being responsible, reasonable or respectable, will need to
be satisfied that, in forming their views, the experts have directed their
minds to the question of comparative risks and benefits and have reached a
defensible conclusion on the matter."
The conclusion of the House of
Lords in that case shows that, although normally evidence of practice will be
determinative in cases involving medical negligence and that the tests in Bolam v Fieron Hospital Management Committee [1957] 1 W.L.R. 582 and Hunter v Hanley 1955 S.C. 200 generally will prevail, that nevertheless
those tests can be trumped by evidence showing that as a matter of fact the
practice was an unreasonable one.
[86] The pursuer's averments on this issue of practice are in the
following terms (10A-C):
"Not known and
not admitted that, at the material time, 'the practice' was to explain to the
parents the purpose and potential benefits of a post-mortem procedure, but not
to confront them with precise details, under explanation and averment that if
such was the practice, it was contrary to the rights of the parents who were
entitled to have their wishes in respect of the bodies of their dead children
respected and complied with."
As I understand it, it is that
attack on the practice adopted by the defenders that provides the springboard
for the averments of duty based on absence of system that I have summarised in
paragraph [7]. In the circumstances
I consider that the pursuer has said enough to allow her to challenge the
practice adopted by the defenders at the time when consent to the post-mortem
of Nicola was obtained.
Conclusions
on negligence
[87] Although I consider that the pursuer has failed to make
relevant averments in support of a doctor-patient relationship I am of the view
that she has made a relevant case in support of her case that a duty of care
was owed to the pursuer when consent to the post-mortem was sought to disclose
that organs may be removed and retained.
Furthermore, although the pursuer's averments on foreseeability are
sparse I cannot conclude that she would necessarily fail to prove that
psychiatric injury was foreseeable.
Conclusion
[88] I propose to allow a Proof Before Answer in this case.
The case shall be put out by order so that the pleadings in relation to
the former second defenders can be tidied up and to consider whether any aspect
of my decision has any impact on the pleadings generally. In the meantime I shall reserve the question
of expenses.
