One of the sad things about law is that it often shows you people at their worst.
You don’t often get cases about genuinely good people doing something brave and amazing. Legal cases are usually either about good people in tough spots or people who have done bad or foolish things, or even good people triumphing over the wickedness of the State. When you read the facts of the case, although you don’t often envisage everyone in the case wearing a black hat, like the bad guys in a Western, what you envisage is more differing shades of gray – some light gray, some dark gray, and at most one person in a white Stetson, showing you that they are the hero. You don’t read a case and see a court room packed full of white Stetson-wearing participants.
Once in a while though, comes a case that doesn’t show you the bad side of human nature, but humanity at its best.
This is one of those. There is no bad guy in this story, no black hats. All of the characters are wearing white Stetsons.
Sad case, but it still made me feel that people, even in the combative white heat of Court proceedings, can sometimes all be good people.
CM v The Executor of the Estate of EJ and Others 2013
CM was a doctor and professor, driving home from work, when she saw a body in the street, EJ who had fallen from a building. CM stopped her car, got out and did what she could to save EJ’s life, sadly without success. There was, tragically, a lot of blood as a result of the fall.
When CM got home, she noted that she had abrasions on her palms, due, she surmised, to the regular washing of her hands at work with anti-bacterial gel. Given that she had broken skin on her hands and had been exposed to EJ’s blood whilst trying to save her life, CM had to contemplate the possibility that she had been exposed to serious blood-bourne diseases.
This would have an impact not only on her own health, but her ability to practice medicine, due to the risk of exposing patients to these diseases. It was therefore vitally important that CM learn whether EJ had any such diseases. In the meantime, she began a course of antiretroviral medication as a precaution, which made her nauseated and unwell.
The Coroner was willing for EJ’s blood to be tested, as long as there was consent to do so. The police tried to find EJ’s relatives and learned that they lived abroad and the closest that they could encounter was a cousin of the mother, OP.
OP wrote to the Coroner in these terms
7. “It took a while for me to learn about the passing away of [EJ]. Her parents live [abroad] and they don’t know about the situation yet. I will be contacting them to let them know. Although I am not the legal next of kin, I will be the go between as I am the closest relative she has got here. Her mother is my first cousin and on her parents’ behalf I am willing to give my permission for the doctor who helped [EJ] at the scene to be provided with her blood sample. I would also like to take this opportunity to thank the said doctor for her efforts in trying to help [EJ].“
The Coroner remained concerned about whether that consent was sufficient for a legal basis for blood/tissue samples to be taken. That is a legitimate concern, since the Human Tissue Act 2004 makes it plain that taking samples without consent is a criminal offence; not something the Coroner wants to become embroiled in. (Like I said, no bad guys in this story)
- Human Tissue Act 2004
- Collection, removal, storage and use of human tissue (defined as material that has come from a human body and consists of, or includes, human cells) in these circumstances is governed by the provisions of the Human Tissue Act 2004; the 2004 Act creates a range of offences for removing, storing or using human tissue for purposes without appropriate consent. Under the 2004 Act the Human Tissue Authority (“HTA”) was established to regulate activities concerning the removal, storage, use and disposal of human tissue; the HTA has in turn published helpful Codes of Good Practice to which I have had regard when considering this application.
- ‘Consent’ is the fundamental principle of the 2004 Act, and the associated HTA Codes; consent underpins the lawful removal, storage and use of body parts, organs and tissue.
- The arrangements for removing, storing and using samples lawfully in these circumstances are to be found in Section 1, Section 3, Section 5, Section 53(1) and Schedule 1, Part 1(4) of the 2004 Act. It is not necessary for me to set out these statutory provisions in full in this judgment; put simply, when read together, these sections establish that consent is required for material (such as blood or human tissue) to be removed, stored or used for “obtaining scientific or medical information, which may be relevant to a person including a future person.”
- In the absence of requisite consent, the removal, testing, or storing of human tissue would be a criminal offence (section 5). As the HTA Code of Practice  makes clear:
“If there is no-one available in a qualifying relationship to make a decision on consent (and consent had not been indicated by the deceased person or nominated representative), it is not lawful to proceed with removal, storage or use of the deceased person’s body or tissue for scheduled purposes“.
- The sources of appropriate consent (in relation to the removal, storage or use of relevant human tissue of deceased adults) are set out in Section 3 of the 2004 Act. Where the person from whom the human tissue or blood is to be removed has died, ‘appropriate consent’ means:
i) his (or her) consent (if the consent was in force immediately before he/she died);
ii) if (i) does not apply, a person appointed to deal with the issue of consent in relation to the specific activity;
iii) if neither (i) nor (ii) apply, the consent of a person who stood in a qualifying relationship to him/her immediately before he/she died.
- In this case it is of course impossible to ascertain EJ’s wishes as to the removal, storage or use of her relevant human material, and there is no evidence that she had appointed another person as her ‘nominated representative’ in this regard. It is necessary therefore to consider those who fall within the relationship of ‘qualifying person’. These persons are listed in hierarchy with “spouse, civil partner or partner” uppermost in the list, through a range of family relationships (i.e. “parent or child, brother or sister … step-father or step-mother, half-brother or half-sister” etc) to “friend of long-standing” at the end of the list (section 27(4)(h)). The legislation provides that consent should be obtained from the person whose relationship to the person concerned is accorded the highest ranking (section 27(6)).
- In applying these principles, the person’s relationship with the deceased shall be left out of account if “having regard to the activity in relation to which consent is sought, it is not reasonably practicable to communicate with him within the time available if consent in relation to the activity is to be acted on.” (section 27(8)).
The Coroner can consent to tissue samples being used and taken in relation to the cause of death, but not for the benefit of third parties, which is what this would be.
Therefore, the Coroner, wanting to get the testing done to benefit CM (and her patients) but not wanting to commit a criminal offence or fail in the duties towards EJ, put the case before the High Court for guidance about what to do.
It won’t surprise you, given the tone of this story (and also knowing that the Judge was Mr Justice Cobb) that the Judge isn’t going to turn out to be a bad guy either.
The Court found that it wasn’t reasonably practicable to seek consent from EJ’s closer relatives, that OP was a person in a qualifying relationship for the purposes of the Human Tissue Act 2004, and that OP had genuinely consented to the taking of tissue samples from EJ to clarify the situation for CM, which was a deeply important one.
The samples were duly taken and tested. The Judge adds a post-script to the judgment to confirm that EJ was not suffering from any blood-borne diseases, meaning that CM was free from them and could resume care of her parents and end the antiretroviral medication.
A very tragic and sad case, but an unusual one in which everyone concerned had acted decently, nobly, selflessly, and lawfully throughout.