BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stevens v. Yorkhill Nhs Trust & Anor [2006] ScotCS CSOH_143 (13 September 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_143.html
Cite as: [2006] CSOH 143, [2006] ScotCS CSOH_143

[New search] [Printable version] [Help]


 

OUTER HOUSE, COURT OF SESSION

 

[2006] CSOH 143

 

 

 

 

 

 

 

 

 

 

 

 

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:

 

 

ннннннннннннннннн________________

 

 

 

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.

 

 

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_143.html