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P D G Skegg[*]
Green Lane Hospital, Auckland, has been at the centre of New Zealand developments in heart surgery for more than half a century. One area of specialisation has been paediatric cardiac surgery. An important contribution to advances in this area, and hence to the saving of lives, has been the collection of hearts retained after the post-mortem examination of the bodies of children with congenital heart defects.
This collection of hearts used to be a source of pride, rather than embarrassment. For example, a history of Green Lane hospital written by two senior senior staff members,[1] and widely distributed,[2] reported “the formation of a register or museum of pathological specimens”. They wrote that the result of this “major time-consuming task” was that “we now have what is probably the largest and best register of congenital abnormalities in Australasia”.[3]
Despite the publicity about the collections of body parts at Alder Hey and elsewhere,[4] the collection of hearts at Green Lane Hospital did not attract significant public attention until the end of February 2002.[5] It was then revealed that the Green Lane “Heart Library” (as it had recently been renamed)[6] contained over 1300 hearts — most of them from children — acquired over more than half a century.[7] Amongst other things, this resulted in widespread media interest[8] and some very predictable “bioethical” comment.[9]
Much of the controversy centred on the extent to which parental consent was given to the retention of the hearts. It was often assumed that where parental consent was given, the removal and retention did not raise significant ethical or legal problems. Conversely, it was often assumed that if parental consent was not given, the retention was ethically and legally objectionable.
This article is concerned with the law rather than with ethics or practice. It focuses on the New Zealand law applicable to the removal and retention of parts, for the purposes of medical education or research, from the bodies of children who died relatively soon after birth.[10] Passing reference will also be made to the removal and retention of cadaveric parts from older children and from adults, and to the use of such parts for therapeutic purposes.
The law relating to the bodies of human beings who have recently died (after being “born alive”) is distinct from the law relating to living persons, and also from the law relating to objects which are the subject of property.[11]
It has long been accepted that there is no “property” in the body of a dead human being — or, to put it another way, that no one “owns” such a body.[12] In terms of English case law, this “no property” rule is now better established than at any time in its history.[13] These cases are not binding on New Zealand courts,[14] but the New Zealand courts are likely to be cautious about rejecting a long-accepted approach which lies behind much of the law relating to dead bodies.[15]
The “no property” rule in relation to human corpses has no necessary or historical connection with any such principle in relation to living human beings (which it predates), or to parts removed from them. Furthermore, the reasons for retaining the “no property” rule in relation to corpses[16] are very different from those which apply to parts removed from living persons (where a strong case can be made for treating the parts as the subject of property).[17]
Despite the “no property” rule, courts have recognised limited rights to the possession of the bodies of people who have recently died. The first to be recognised was the right of executors to the body of a deceased person, so as to enable them to comply with the duty to dispose[18] of the body.[19] Since then it has been accepted that other persons will sometimes be under a duty to dispose of a body, and will have a right to possession of it for that purpose.[20] It has also been accepted that if the death is one into which a coroner may enquire, the coroner has the prior right to possession.[21]
More recently — in terms of the long history of the “no property” rule — courts have also accepted that a human corpse, or part thereof, can become the subject of property. The first case concerned the body of “a two-headed baby” which had been stillborn in New Zealand in 1868[22] and was subsequently preserved and displayed for payment at fair grounds in Australia.[23] In the past decade, English courts have also accepted that a corpse, or part thereof, may become the subject of property[24] — although there remains some uncertainty about what must be done to the body, or part, for this to occur.[25] This qualification of the “no property” rule may have the effect of strengthening the rule itself, for it has removed some of the pressure there might otherwise have been for change.[26]
Following the death of a child who has been the subject of medical attention, the coroner will often have the initial right to possession of the body.[27] If it is not a coroner’s case, or if the coroner has released the body, the parents probably have a limited right to possession of the body, for the purpose of disposing of it.[28] (In a New Zealand context, this would probably include a right to make decisions about whether the body may be viewed, and kept prior to disposal in a private home, marae, or wherever.) However, the parents do not own the body and the body will not at this stage be the subject of property — although parts removed from it may soon become so, if they are preserved for medical education or research.
This right to possession is likely to be that of parents, not (other) guardians or caregivers. Guardianship has been held to expire at death.[29] Unless the child has been adopted, the natural parents — irrespective of their (former) guardianship status — may then have the right to possession of the body for the purpose of arranging for its disposal.[30]
Although parents may often have a right to possession of the body, they will rarely — at the relevant time — be “lawfully in possession of the body”, for the purpose of authorising its use under the Human Tissue Act 1964. Where a medical use is contemplated, the body will usually be in a hospital (or “hospital care institution”, as the relevant legislation now puts it).[31] By virtue of section 2(2)(a) of the Human Tissue Act 1964, the “person lawfully in possession of the body”, who has crucial decision-making powers, is then the person “for the time being in charge” of the institution.[32]
The statutory provisions relating to who is the Person Lawfully In Possession Of the Body (hereinafter PLIPOB) are not all-encompassing.[33] However, the Department of Health has advised that, in cases not covered by the statutory provisions, the PLIPOB “is the person in control of the place where the body is lying”.[34] This will sometimes, but by no means always, be one or both parents.
The ensuing examination of provisions of the Human Tissue Act will focus exclusively on the common situation, where the dead child’s body is in a hospital (or a hospital mortuary). All that follows should be read subject to this qualification.
In a great many circumstances the Human Tissue Act 1964 does not require the consent — much less the “informed consent” — of parents, or other family members, before parts of dead bodies can lawfully be removed and retained for medical purposes.
Section 3 of the Human Tissue Act 1964 is the main provision of New Zealand law which deals with the removal and retention of cadaveric parts, for the purposes of medical education and research. In terms of this section, parental consent is neither necessary nor sufficient.
Section 3 provides for the PLIPOB — not the parents or other close relatives — to authorise the removal and use of parts of the body for the purposes of medical education or research (or for therapeutic purposes). However, the conditions of authorisation vary according to whether or not the deceased person requested that his or her body be used in this way.
If authorisation is being given on the basis of a request of the deceased, the PLIPOB may authorise the removal and use of parts whatever the views of parents or others.[35] This is by virtue of section 3(1),[36] which provides that:[37]
If any person, either in writing at any time or orally in the presence of 2 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.
Older children,[38] as well as adults, may have “expressed a request” in a way which comes within the scope of section 3(1). However, this provision will have no application in the case of the young children who are the main concern of this article. It is section 3(2) which applies to their dead bodies — as well as to the bodies of the many other people who are not known to have “expressed a request” in terms of section 3(1).
Under section 3(2)[39] parental consent is not required. This is because section 3(2) provides:[40]
(2) Without limiting subsection (1) of this section, it is hereby declared that 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 inquiry as may be practicable, he has no reason to believe—(a) That the deceased person has expressed an objection to his or her body being so dealt with after death, and had not withdrawn it; or
(b) That the surviving spouse, surviving de facto partner of the same or different sex, or any surviving relative of the deceased person objects to the body being so dealt with.
As a young child is extremely unlikely to have ever expressed a relevant objection, paragraph (a) will not in practice have any bearing on the contemplated removal of the heart from the body of a newly-deceased young child. Furthermore, there is no possibility of the opening words of paragraph (b) (“the surviving spouse”), or those which were added by the Human Rights Amendment Act 2001 (“surviving de facto partner of the same or different sex”), having any application in such a case. It is therefore appropriate to focus exclusively on the remainder of section 3(2).
Section 3(2) could easily have been drafted so as to require the consent of a parent, spouse, or other close relative. But it does not do so. It does not require that all possible, or even all reasonable, enquiries be made as to whether there is a relevant objection. It requires only “such reasonable enquiry as may be practicable”.
In some circumstances the limited time which is available, if a part is to be used for a therapeutic purpose, may have a bearing on what constitutes “such reasonable enquiry as may be practicable”. This issue will rarely arise when a (medical) educational or research use is contemplated. Nevertheless, there will be occasions where it is not reasonable, or not practicable, to enquire of a parent of a newly deceased child, whose heart would be a welcome addition to a research collection. One obvious case would be where the father’s identity was not known to the mother or to anyone else. Another would be where a parent was in a persistent vegetative state. However, in the overwhelming majority of circumstances, it would be both reasonable and practicable to enquire of one or both parents of a deceased child, to determine whether they object to the contemplated course of action.
The PLIPOB need not make all enquiries personally. For example, the PLIPOB could leave it to some other appropriate person, to enquire of the parents of a newly deceased young child whether they object, and whether they have any reason to believe that any other relative objects. If the PLIPOB then asks and is assured that this enquiry has taken place, and there is no reason to believe that there is a relevant objection, this would often itself be “such reasonable enquiry as may be practicable” on the part of the PLIPOB.
Consent clearly implies lack of objection (although lack of objection does not necessarily imply consent). Given current expectations, it would now be as well to go beyond the legal requirement and seek the parents’ consent, rather than simply enquire whether either of them objects.[41] However, even if given, the parents’ consent would by no means conclude the matter.
In terms of section 3, the consent of one or both parents does not render the removal and use lawful. An objection of any other relative (such as a grandparent, older sibling, or first cousin)[42] has the effect of overriding any consent given by the parents of the deceased child — if the PLIPOB, having made “such reasonable enquiry as may be practicable”, has “reason to believe” that the relative “objects”.
Even in the absence of objection from another relative, the consent of the parents is not sufficient. Under section 3(2) the removal and use must be authorised by the PLIPOB — who must first obtain the consent of the coroner, if the PLIPOB has reason to believe that an inquest or a coroner’s post-mortem may be required. This condition is imposed by section 3(5); its reference to “the consent of the coroner” is the only mention of consent in the Act.
Once the PLIPOB has authorised the removal, for one or more of the specified purposes, there other conditions which must be satisfied if the removal and use is to be lawful by virtue of the Act.[43] Section 3(4) provides that the removal must be “effected . . . by a medical practitioner”,[44] who must have “satisfied himself by personal examination of the body that life is extinct”.[45] And section 3(5) also requires that, if the practitioner has reason to believe that an inquest or a coroner’s post-mortem may be required, the practitioner may not proceed “except with the consent of the coroner”.[46]
It is appropriate for authorisation to be given under section 3 of the Human Tissue Act 1964 when a coroner’s post-mortem is to be carried out, but it is desired to retain parts for the purpose of medical education or research (or both).
The removal of some body parts is an essential aspect of a post-mortem examination, and it has often been necessary to retain parts for a time, for the purpose of the investigation. However, although the long-term retention of microscopic samples of tissue is now a standard incident of a post-mortem examination,[47] the long-term retention of organs is not.[48]
Where long-term retention is contemplated, following a coroner’s post-mortem, the pathologist should proceed with dual authorisation: that of the coroner, in respect of the post-mortem examination itself (including the removal of parts for examination),[49] and that of the PLIPOB, in respect of the the removal and retention of a body part for the purpose of medical education or research (or for therapeutic purposes).[50]
If the post-mortem examination is a “hospital” one[51] — in other words, is not “directed or requested by a coroner, or any other competent legal authority”[52] — the conditions of authorisation are now very nearly identical to those under section 3(2) of the Human Tissue Act 1964. Under the pre-1964 law, one of the conditions of the PLIPOB authorising a post-mortem examination, “for the purposes of medical research or the teaching of pathology”, was (in the absence of a request of the deceased):[53]
That surviving husband or wife, or, if there is no husband or wife known to be surviving and there is known to be a relative, any such relative, consents to a post-mortem examination.
This consent requirement was omitted when that provision was replaced by section 4 of the Human Tissue Act 1964.
Section 4(1) envisages “hospital” post-mortem examinations[54] being carried out for a variety of purposes, including “investigating the existence or nature of abnormal conditions” and “for any of the purposes specified in section 3 of this Act” (ie for therapeutic purposes, or for purposes of medical education or research).
Section 4(2) commences by stipulating that “No post-mortem examination shall be carried out otherwise than by or in accordance with the instructions of a medical practitioner” and continues by providing that:
no post-mortem examination, other than one which is directed or requested by a coroner, or any other competent legal authority, shall be carried out without the authority of the person lawfully in possession of the body; and subsections (2), (5), and (6) of section 3 of this Act shall, with the necessary modifications, apply with respect to the giving of that authority.
In the case of a child who has died soon after birth, section 4(2) permits the PLIPOB to authorise a post-mortem examination if, having made “such reasonable enquiry as may be practicable” the PLIPOB has “no reason to believe” that “any surviving relative” of the child “objects” to the body being dealt with in this way. Here, too, parental consent to the post-mortem examination is neither necessary nor sufficient.
Given the circumstances in which a PLIPOB authorises a “hospital” post-mortem examination, authorisation to retain body parts may sometimes be implicit in the authorisation (for example, where it is authorised for the purposes of medical education and research). However, on occasions it may be desirable to place express reliance on both section 3(2) and section 4(2). The preceding enquiry, about whether there are relevant objections to the post-mortem examination, should encompass the issue of retention of parts.
The Human Tissue Act contains one other provision relating to the long-term retention of cadaveric body parts, and here too there is no requirement that parents’ consent be obtained. This provision relates to parts of bodies which have been used for the purpose of “anatomical examination”.[55]
Anatomical examination of the body of a deceased person also requires the authorisation of the PLIPOB, not the parents. The conditions of authorisation mirror fairly closely those in section 3(1) and (2), quoted and discussed above.[56] Section 5(1) provides for the authorisation of anatomical examination on the basis of a request of the deceased. Like section 3(1), it does not require the consent of any relative. However, unlike section 3(1), it provides some relatives with a legal power of veto. The PLIPOB is not free to authorise the examination if:[57]
objection to the body being so dealt with is made by
(a) The surviving spouse or surviving de facto partner (whether of the same or different sex) of the deceased person; or
(b) If there is no surviving spouse or surviving de facto partner (whether of the same or different sex), a person who is the nearest known relative, or one of the nearest known relatives, of the deceased person.
Section 5(2) provides conditions of authorisation which are the same as those in section 3(2). Relatives’ consent is not required. However, the PLIPOB may not authorise the use of the body (for the purpose of anatomical examination) unless, “having made such reasonable enquiry as may be practicable”, the PLIPOB has “no reason to believe” that there is a relevant objection. The people whose objections are relevant are the same as under section 3(2)(a),(b).
Section 5 of the Act does not itself make provision for the long-term retention of parts. However, the provisions relating to anatomical examinations go on to provide for permission to be given for body parts to be retained indefinitely. This is by virtue of the proviso at the end of section 6(5). Section 6(5) is as follows:
All human remains resulting from anatomical examination shall be buried or cremated in accordance with the written instructions of an Inspector, who shall take into consideration any wishes that the deceased or his relatives may have expressed:
Provided that, with the permission of an Inspector, any part of the body may be retained indefinitely for further study.
A senior police officer, appointed as Inspector of a School of Anatomy,[58] may therefore permit any body part “resulting from anatomical examination” to be retained indefinitely “for further study”, irrespective of the views of the deceased, the parents, or other relatives. At this stage, their objections will have no legal significance. Parents’ consent is not required, and they need not be informed that the part is to be retained.
Given sections 3 to 6 of the Human Tissue Act 1964, the removal and retention of parts of the body of a dead child may often be lawful, even though the parents’ consent has not been obtained. Furthermore, the parents’ consent would not of itself render the removal and retention lawful, in terms of the Human Tissue Act 1964.
The Health and Disability Commissioner Act 1994 (“the HDC Act”) was one outcome of the Cartwright Inquiry of 1987-88.[59] Amongst other things, the Act provided for the making of a Code of Health and Disability Consumers’ Rights,[60] for investigation by the Commissioner of suspected breaches of the Code,[61] and for the possibility of civil proceedings being instituted following that investigation.[62]
Right 7(10) of the Code of Health and Disability Services Consumers’ Rights[63] (“Code” or “Code of Rights”) provides:
Any body parts or bodily substances removed or obtained in the course of a health care procedure may be stored, preserved, or utilised only with the informed consent of the consumer.
This is the legal provision which is most often cited in support of the view that parental consent is required, if parts removed from the bodies of deceased children may lawfully be retained for the purpose of medical education and research.[64]
In the case of young children, there will be no question of their having given “informed consent”[65] during their lifetimes (“except with the informed consent of the consumer”). However, the Code provides an extended definition of consumer, which applies to Right 7(10). By virtue of this definition, “consumer” here includes a person who is entitled to give consent on behalf of a health or disability services consumer.[66]
In the discussion which follows, it will be argued that Right 7(10) should not be taken to apply to the retention of parts removed from dead bodies — and that, even if it did, parental consent would still not be required by law. But first it is necessary to examine some of the definition provisions.
Right 7(10) applies only where a body part or bodily substance is “removed or obtained in the course of a health care procedure”. It is therefore important to determine whether a post-mortem examination, or other removal of a part from a dead body, is a “health care procedure”.
“Health care procedure” is not defined in the Code. The applicable definition is that in the HDC Act[67], where it states:[68]
ÒHealth care procedureÓ means any health treatment, health examination, health teaching, or health research administered to or carried out on or in respect of any person by any health care provider; and includes any provision of health services to any person by any health care provider:
This definition was almost certainly formulated with the expectation that it would apply only to the things done to, or in respect of, living human beings (ie persons), not to the removal of parts or substances from dead bodies.
The statutory words have the effect of providing more than one definition of “health care procedure”. The first (ie that before the semi-colon) has two broad requirements. One is that it involve “health treatment, health examination, health teaching, or health research” — and some things done to dead bodies could sometimes be so described. The related requirement is that this be administered to, or carried out “on or in respect of any person”.
Once death has occurred, there can be no question of the treatment, examination, or whatever, being carried out “on . . . any person”. However, it might just be arguable that a post-mortem examination is carried out “in respect of any person”, even though that person has now died.[69] This is a matter to which it will be necessary to return.
An alternative definition of “health care procedure” is provided by the final part of the statutory provision (“includes any provision of health services to any person by any health care provider”). This does not assist the contention that some things done to a dead body could count as a “health care procedure”. Even if some things done to dead bodies could be brought within the separate statutory definition of “health services”,[70] the “to any person” element of this definition excludes such interventions from this alternative definition of “health care procedure”.
Before reaching a final conclusion about whether a post-mortem examination, or other organ extraction, can ever be regarded as a “health care procedure”, it is desirable to take account of some other considerations. As those considerations also have some bearing on the issue of whether a dead body can ever be regarded as a “consumer”, the relevant definitions will be examined next.
Before embarking on an examination of the term “consumer” it is as well to explain its importance in the context of Right 7(10). Right 7(10) does not expressly require there to be a consumer — although without a consumer its “informed consent” requirement would not operate (except where consent had been given earlier, while the consumer was still alive).[71] However, the Code as a whole presupposes a consumer,[72] and Clause 2 itself commences: “The rights of consumers and the duties of providers under this Code are as follows:”. In the absence of a consumer, the rights in the Code are not applicable.
The definition clause of the Code[73] provides in part that:
ÒConsumerÓ means a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, includes a person entitled to give consent on behalf of that consumer:
Setting aside, for the moment, the extended definition of “consumer” provided by the latter part of this definition, it will be seen that the Code uses the term “consumer” to embrace both “health consumer” and “disability services consumer”. For the meaning of these expressions, it is necessary to look to the HDC Act.
The HDC Act provides that “disability services consumer” means “any person with a disability” which has the consequences spelt out in the remainder of the definition. Clearly, this cannot include dead bodies: whatever their disabilities, they are not persons.
The HDC Act’s definition of “health consumer” is more open-ended. It simply provides that:[74]
Ò Health consumerÓ includes any person on or in respect of whom any health care procedure is carried out.
It is highly doubtful that this provision was formulated so as to leave open the possibility of (for example) unborn children,[75] or the bodies of people who have died but which are maintained on ventilators, coming within the ambit of “health consumer”. (It may have been so phrased so someone “on or in respect of whom” a health care procedure was not carried out, but who was in a professional relationship with a health care provider,[76] could nevertheless be regarded as a “health consumer”.)[77] Whatever the reason, the statutory definition of “health consumer” does not expressly exclude the possibility of “pre-persons” and “post-persons” being regarded as “health consumers”. However, even if it were accepted that some pre- and post- persons could be regarded as health consumers, it would be stretching matters more than a little to regard a dead body, on which a post-mortem examination was being carried out, as one.
But what of the extended definition of “consumer” in clause 4 of the Code? This provides that “for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10” the term “includes a person entitled to give consent on behalf of that [health or disability services] consumer”.[78] It has been argued that parents of a deceased child can therefore be regarded as a “consumer”, for the purpose of Right 7(10), in respect of their dead child. However, unless the child itself remains a health or disability services consumer, there is no “consumer” on whose “behalf” the parents or other guardians are “entitled to give consent”. Furthermore, once death occurs, parents or other guardians have no legal entitlement to consent “on behalf of” the corpse.[79]
Neither the definition(s) of “health care procedure”, nor the definition(s) of “consumer”, seem to have been formulated with the intention that they should extend to dead bodies. In both cases, some of the definitions are expressly restricted to “persons”, but other aspects are a little more open-ended. If other considerations strongly favoured such a course, they might just possibly be interpreted so as to apply to dead bodies from which parts were being removed — though this would be to go against the natural sense of the definitions as a whole.
One possible consideration would be that those responsible for the preparation of the Code had intended it to apply to things done to, or removed from, dead bodies. However, all the evidence points in the other direction. When preparing her report, Judge Cartwright was aware of the issue of parts removed and retained from the bodies of newborn infants.[80] But there was nothing in her (admittedly brief) recommendation for the provision of a “statement of patients’ rights”[81] to indicate that she envisaged this statement extending to things done to bodies after death. Similarly, the issue of parts retained after post-mortem examinations was a matter of public controversy during the years in which the proposed legislation was before Parliament.[82] However, there was nothing in the parliamentary debates to suggest that any participant thought the Act was to authorise a Code which would apply to dead, as well as to living, consumers.[83] An examination of the documents which preceded the making of a Code reveals a similar pattern: there was nothing which implied that the Code was to regulate anything done to, or removed from, dead bodies.[84]
There is a second consideration which also counts strongly against the Code of Rights being interpreted so as to extend to the removal and retention of parts from dead bodies. This is that the Human Tissue Act already provided for the authorisation of the removal of parts from dead bodies, and their retention and use for the purposes of medical education and research (as well as for therapeutic purposes).[85] It would have been very surprising indeed if Parliament had authorised, or if those responsible for the final form of the Code had intended, that the Code should set up a rival (and inconsistent)[86] scheme for regulating the removal and retention of parts from dead bodies. Avoidance of this potential confusion and inconsistency is an additional reason why “health care procedure” and “consumer” should not be interpreted so as to apply to the removal of parts from dead bodies.
It has been argued above that Right 7(10) should not be taken to apply to parts removed from dead bodies. However, even if this view were rejected, it would not follow that the Code has the effect of requiring parental consent to be obtained (for it to be lawful to retain parts removed from the dead bodies of young children which lie in a hospital or hospital mortuary).
There is an easily overlooked provision, which provides an additional difficulty for the view that Right 7(10) applies to parts removed after a health or disability services consumer has died. This is clause 5 of the Code. It provides:
Nothing in this Code requires a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.
So, even if Right 7(10) of the Code were prima facie applicable, the Code does not purport to prevent a provider “doing an act authorised by any enactment”.
Section 3(3) of the Human Tissue Act 1964 provides that:
Subject to subsections (4) and (5) of this section, the removal and use of any part of a body in accordance with an authority given in pursuance of this section shall be lawful.
A medical practitioner who removes a part from a dead body, in the circumstances specified in section 3 of the Human Tissue Act 1964, can be regarded as doing an act authorised by an enactment (in terms of the concluding words of clause 5 of the Code). Clause 5 makes it clear that the Code does not prevent a provider (here, a medical practitioner) doing an act authorised by an enactment (here the Human Tissue Act 1964).
Even if clause 5 had not been included in the Code, or if it were interpreted restrictively to exclude authorisation pursuant to (rather than, narrowly, “by”) an enactment, the final result would be the same where (as here) an earlier statute made provision for the authorisation of the removal and use of body parts — and went on to provide that, subject to compliance with other specified conditions, that removal and use was lawful. This is because the Health and Disability Commissioner Act 1994, in providing for the making of a Code of Rights, does not confer a power to render unlawful conduct which an earlier Act of Parliament expressly made lawful. Where its conditions are met, the Human Tissue Act 1964 makes lawful the removal of parts from the body of someone who has died. In the absence of some very clear indication in the enabling statute, later delegated legislation cannot override this statutory provision. Here, it did not attempt to do so.
In terms of the law, the conclusion is straightforward. The Human Tissue Act 1964 does not require that the consent of parents or other relatives be obtained, before cadaveric body parts may lawfully be removed and retained for the purposes of medical education and research (or for therapeutic purposes). Sometimes there is no need to ascertain the views of parents or other relatives.[87] However, in the case of a young child (amongst others), the person lawfully in possession of the body[88] has no authority to authorise the removal and retention unless, having made “such reasonable enquiry as may be practicable”, that person has “no reason to believe” that there is a relevant objection.[89] There are then additional requirements to be met if the removal and retention is to be lawful by virtue of the Act: parental consent is not simply unnecessary; it is not sufficient. Right 7(10) of the Code of Rights does not supplant or supplement the provisions of the Human Tissue Act 1964.
[*] Professor of Law, University of Otago. I am grateful to two of my colleagues for their help in the preparation of this article: Anya McAlevey made Official Information Act requests on my behalf, and provided other research assistance, and Nicola Peart provided helpful comments on an earlier draft. My thinking about these matters has also benefited from discussions with Ron Paterson, the Health and Disability Commissioner.
[1] EH Roche and AHG Roche, Green Lane Saga: A Record of Green Lane Hospital, Auckland in the Development of Cardiology and Cardiothoracic and Vascular Surgery (1983), 229pp.
[2] The book remains available in more than two dozen public libraries in New Zealand, as well in medical and other specialist libraries.
[3] Roche and Roche, n1 above, 171. See also eg JW Kirklin and BG Barratt-Boyes, Cardiac Surgery (2nd ed, 1993) where many specimens — identified as from Green Lane Hospital — are used as illustrations (in nearly two dozen chapters). See eg p1 (ch 1) and p1516 (ch 44).
[4] Eg The Royal Liverpool Children’s Enquiry/ Report (HMSO, 2001), available at <http://www.rlcinquiry.org.uk/> (accessed 23 October 2002) (“Alder Hey is the term we use to describe the Royal Liverpool Children’s Hospital NHS Trust and its predecessors in title.”) (para 19.1).
[5] New Zealand Herald, 28 February 2002, p 1 (following a television programme the previous evening).
[6] A Heart Steering Group was established at Green Lane Hospital early in 2001, after it became apparent that news about the heart collection would soon become more widely disseminated. It was this Group which — in the course of discussion with Maori elders/kaumatua in October 2001 (and “accepted by all present”) — opted for the word Library (“which indicates a teaching/learning purpose”). However, in July 2002, a month after being informed of an article in a Maori news magazine describing the term as offensive, and after further consultation with Maori, the Group accepted the word Registry in place of Library (Minutes 2 October 2001, 4 June and 2 July 2002).
[7] Of the 1351 hearts in the collection at the end of February 2002, some 179 had been returned to families by late August 2002. Several families had not yet made a decision, and 139 had agreed to leave hearts in the collection (Report to the Board, Auckland DHB, 29 August 2002). Although there had been close to 4000 enquiries since late February 2002, many families had evidently decided not to enquire.
[8] There were at least 147 newspaper reports and articles, and a similar number of radio and TV reports, in March alone (Memo dated 29 April, provided to the Board Meeting, Auckland DHB, 30 April 2002). Outstanding amongst the many articles which have been published was the lengthy and well-informed one by Deborah Coddington, “Heartbreak Hospital”, North and South, June 2002, 28-41. Other information about the Heart Library/Registry was contained in two reports released in late October 2002: Report of the Auckland District Health Board Body Parts, Tissues & Substances Review Panel (September 2002) (78pp), and C Ryan, Green Lane Heart Registry/ Report and Recommendations (8 October 2002) (7pp).
[9] Eg S Cole and M McCabe “Green Lane Library: Ethical and Cultural Implications” (2002) 3 New Zealand Bioethics Journal (2), 4-7. See also DG Jones and KA Galvin, “Retention of Body Parts: Reflections from Anatomy” (2002) 115 New Zealand Medical Journal 267-269.
[10] This article does not deal with the removal and retention of parts from children (or fetuses) who died before or during birth - although see n23 below.
[11] New Zealand law does not distinguish between the bodies of people who have died but which are maintained for a time by the provision of artificial ventilation, and the more usual “dead” bodies which are not being maintained on ventilators: see PDG Skegg “The Edges of Life” [1988] OtaLawRw 1; (1988) 6 Otago Law Review 517, 522 for the suggestion that it should. In this article, the expression “dead bodies” will be used to comprehend both categories. “Corpses”, and “cadavers”, will also be used as synonyms for “dead bodies”.
[12] See eg 2 Bl Com 429, 4 Bl Com 235*. Until the 1990s, the leading English case was Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659. For discussion of this and other English cases, see PDG Skegg, “Human Corpses, Medical Specimens and the Law of Property” (1975) Anglo-American Law Review 412, 413-416, 422 (reprinted in part in I Kennedy and A Grubb, Medical Law (3rd ed, 2000, by A Grubb), 2239-2241).
[13] Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1997] 1 WLR 596, 600 (Eng CA); R v Kelly [1998] EWCA Crim 1578; [1999] QB 621, esp 630-631 (Eng CA, Crim Div).
[14] See generally Awa v Independent News Auckland Ltd [1995] 3 NZLR 701, 710 per Hammond J (discussed in PDG Skegg, “The ‘No Property’ Rule and Rights relating to Dead Bodies” [1997] Tort Law Review 222, 226-229). See also Beattie J, “Medico-Legal Aspects of Organ Transplantation in New Zealand” [1972] NZLJ 36, 37 (“There is no property in or ownership of a dead body.”)
[15] There are now many excellent studies of the “no property” rule and related issues. They include P Matthews, “Whose Body? People as Property” (1983) Current Legal Problems 193 - 239; RS Magnusson, “Proprietary Rights in Human Tissue” in Interests in Goods (2nd ed 1998, eds N Palmer and E McKendrick), 25-62; A Grubb, “I, Me, Mine: Bodies, Parts and Property” (1998) 3 Medical Law International 299-317.
[16] See PDG Skegg “Medical Uses of Corpses and the ‘No Property’ Rule” (1992) 32 Medicine, Science and the Law 311, 313-317, esp 315.
[17] The case of Moore v Regents of the University of California (1988) 249 Cal Reptr 494, (1990) 793 P 2d 479, and the vast literature it has engendered, has not led me to alter the assessment provided in passing in PDG Skegg, n12 above, 424, n39. In a New Zealand context, the Code of Health and Disability Services Consumers’ Rights (see Part 4 of this article), cl 2, Rt 7(9),(10) (and note also cl 3) will sometimes be helpful.
[18] The case law is mainly expressed in terms of a “duty to bury”, but given the widespread use of cremation it will be referred to in this article as a duty to dispose of the body. In practice, it is a duty to arrange (and, if necessary, bear the cost of) disposal.
[19] R v Fox [1841] EngR 1003; (1841) 2 QB 246, 247[1841] EngR 1003; , 114 ER 95, 96; Williams v Williams [1882] UKLawRpCh 60; (1882) 20 Ch D 659, 664-665. See also Awa v Independent News Auckland Ltd [1995] 3 NZLR 701, 710. Cf Coroners Act 1988, s14.
[20] See generally PDG Skegg, Law, Ethics and Medicine: Studies in Medical Law (1984), 233-235 – but note also the comments of A Grubb, n15 above, 308 -309. In Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1997] 1 WLR 596, 600, Peter Gibson LJ said: “If there is no duty, there is no legal right to possession of the corpse.”
[21] R v Bristol Coroner, ex p Kerr [1974] QB 652, 658-659. The case focused on the end, rather than the beginning, of the coroner’s right to possession, and the proposition stated in the text above represents a slight extension of one of the ways it was stated in the case: “as soon as he decides to hold an inquest”. If the death is one into which a coroner is entitled to enquire, the coroner should have the prior right to possession – even if, at the time in question, the coroner has yet to been informed (or has not yet decided whether to require a post-mortem examination).
[22] The mother’s doctor took the body away with him, preserved it in a bottle of spirits, and kept it in his surgery as a curiosity. Following his death in 1870 it sold at auction for a considerable sum: see Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, 417; see also ibid 410-411.
[23] Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (HCA). CS Kenny, Outlines of Criminal Law (6th ed, 1914), 192, n2 (and succeeding editions) records that the Judicial Committee of the Privy Council refused leave to appeal. Griffith CJ, in delivering the leading judgment did not treat the fact that the “two-headed baby” was still-born, rather than born alive, as of crucial importance: see 6 CLR 413, 415. Barton J, the other judge who made up the majority, said he entirely agreed with Griffith CJ’s reasons (6 CLR 417). However, earlier in his judgment, Barton J emphasised the difference between “a dead-born foetal monster [sic] preserved in spirits as a curiosity during four decades” and “a corpse awaiting burial, the thing which Judges have discussed in decisions and lawyers in textbooks” (6 CLR 416). The bodies of children who die before birth are outside the scope of this article and outside the scope of the Human Tissue Act 1964 (see eg ibid, s2(1)). (The great majority — possibly 90 per cent — of the hearts in the Green Lane Heart Library came from the bodies of children who died after, rather than before, birth.)
[24] R v Kelly [1998] EWCA Crim 1578; [1999] QB 621 (Eng CA, Crim Div)(discussed, very helpfully, in the commentary by A G[rubb] in [1998] Med L Rev 248-253) ; see also Dobson v North Tyneside Health Authority [1996] EWCA Civ 1301; [1997] 1 WLR 596, 601 (Eng CA) (discussed, less helpfully, in PDG Skegg, n14 above, 222-226).
[25] For a valuable discussion, see A Grubb, n15 above, esp 309-312.
[26] If a major reevaluation and rejection of the rule does not occur first, further qualification of the rule is likely: see R v Kelly [1998] EWCA Crim 1578; [1999] QB 621, 631D, and note also PDG Skegg, n16 above, 315-317, and also ibid 312-13.
[27] Coroners Act 1988, ss4-14; R v Bristol Coroner, ex p Kerr [1974] QB 652, 659.
[28] See R v Gwynedd County Council, ex p B [1992] 3 All ER 317, 319 (Eng CA) (“Under the general law a parent who has the means to do so, is bound to provide for the burial of his deceased child (see R v Vann (1851) 2 Den 325, 169 ER 523, approved by Lord Alverstone CJ in Clark v London General Omnibus Co Ltd [1906] UKLawRpKQB 107; [1906] 2 KB 648 at 659).”)
[29] Watene v Vercoe [1996] NZFLR 193; and see also Guardianship Act 1968, ss 3, 23.
[30] R v Gwynedd County Council, ex p B [1992] 3 All ER 317 (Eng CA).
[31] With effect from 1 October 2002, when the Health and Disability Services (Safety) Act 2001 came into force, the former para (a) of s2(2) of the Human Tissue Act 1964 was repealed and the following provision substituted: “(a) the person for the time being in charge of any hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001, in respect of any body lying in that institution.” (See s58(1), Sch 2).
[32] See n 31, above.
[33] See s2(2)(b), (c).
[34] Department of Health Circular Memorandum “Removal of Tissue for Transplantation, Education or Research, at Post-Mortem” (Hospital and Area Health Boards No 1988/181; Head Office No 1988/115), para 8. This advice is consistent with the Human Tissue Act 1964, for its provisions imply that the PLIPOB is not necessarily the person with the right to possession of the body (eg for the purpose of coronial enquiries): see s3(5),(6) and PDG Skegg, n20 above, 235-240. See also Awa v Independent News Auckland Ltd [1995] 3 NZLR 701, 710, per Hammond J (“Here nobody had a common law right to Billy T’s body at the relevant time. But the body was in the lawful possession of the widow and those in the Muriwai house.”)
[35] Cf Human Tissue Act 1964, s6(5), which requires the Inspector of Anatomy to “take into consideration any wishes that the deceased or his relatives may have expressed” (s6(5)). The Act does not impose on the PLIPOB any comparable duty to take account of expressed wishes of relatives, when exercising the power conferred by s3(1).
[36] Section 3(1) of the Human Tissue Act 1964 (NZ) is identical to s1(1) of the Human Tissue Act 1961 (UK) (except for the fact that the number 2 is spelt out in the text of the latter). Most of the commentary on the latter provision in PDG Skegg, n20 above, 241-242 is therefore equally applicable to s3(1). But on the meaning of “in writing” in New Zealand statute law, see now Interpretation Act 1999, s29, and note also Acts Interpretation Act 1924, s4. On the New Zealand law, note also s3(1A) added (unnecessarily?) by the Human Tissue Amendment Act 1989, s3.
[37] In this and all other quotations in this article, emphasis (whether in italics or in bold print) has been added by the writer.
[38] Cf Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112.
[39] Section 3(2) of the Human Tissue Act 1964 (NZ) is similar to s1(2) of the Human Tissue Act 1961 (UK), and most of the commentary on the latter provision in PDG Skegg, n20 above, 243-252 is equally applicable to s3(2).
[40] The words “surviving de facto partner of the same or different sex”, in s3(2)(b), were added by the Human Rights Amendment Act 2001, s53, which came into force on 1 January 2002.
[41] Note, however, the report of a working party, chaired by Sir David Beattie (a former Judge of the Supreme Court, as the High Court then was), and published by the Department of Health in 1987: Code of Practice for Transplantation of Cadaveric Organs (Department of Health, 1987). The report did not recommend that consent be obtained: see para 4.3d. Similarly, the Department of Health “Circular Memorandum” of the following year (see n34 above) does not suggest that consent be sought. (Note also letter, Director-General of Health to Principal Medical Officer, Auckland Hospital Board, 20 October 1988: “[W]e are currently investigating the legislative amendments necessary to enable relatives to be asked if they have no objections to the removal of tissue for transplantation, research or teaching and to require that relatives are indeed asked”. No such legislative amendment ensued.)
[42] The expression “relative” is not defined, either in the Human Tissue Act 1964 or in the Interpretation Act 1999 (or its predecessor, the Acts Interpretation Act 1924). The term would almost certainly be taken to extend to more distant relatives than those mentioned in the text above.
[43] See Human Tissue Act 1964, s3(3).
[44] As to the meaning of “medical practitioner” in this context, see Human Tissue Act 1964, s 2(1) (“Medical practitioner”) and s4A (restrictions on persons holding temporary registration), as amended.
[45] Human Tissue Act 1964, s3(4); see also s3(5)(b).
[46] Section 3(3) does not make the lawfulness of the removal and retention dependent upon compliance with s11 of the Act, and the offence provision in the Act (s12) does not extend to breaches of s11. Nevertheless, s11 can be regarded as providing additional requirements. They are that: “Any person performing a post-mortem or anatomical examination or removing any part of a body pursuant to this Act shall do so in a manner that avoids unnecessary mutilation of the body which is being examined or from which any such removal is being effected, and shall conduct the examination or removal in an orderly, quiet, and decent manner.”
[47] For this reason, the [New Zealand] Law Commission’s Report 62, Coroners (2000), 79, recommended that the term “body parts” or “tissue”, which featured in their earlier recommendations, should not extend to encompass “microscopic samples, which pathologists retain as a matter of practice” (Recommendation 21).
[48] For a fuller discussion, see PDG Skegg, “The Use of Corpses for Medical Education and Research : The Legal Requirements” (1991) 31 Medicine, Science and the Law 345, 350 (reprinted in relevant part in I Kennedy and A Grubb, n12 above, 2253).
[49] Coroners Act 1988, Part III (ss7-14), esp ss 7-8 (replacing Coroners Act 1951: see esp ibid ss5-6, and also s7).
[50] Human Tissue Act 1964, s3.
[51] For alternative terminology, see PDG Skegg, n48 above, 348-349 (reprinted in relevant part in I Kennedy and A Grubb, n12 above, 2251-2252).
[52] The words quoted are from s4(2) of the Human Tissue Act 1964. On authorisation by the High Court, see Coroners Act 1988, s39; on authorisation by the Director-General of Health, see Health Act 1956, s78.
[53] Medical Act 1908, s24B(2)(b) (inserted by Medical Amendment Act 1954, s2). While this provision was in force, authorisation of such post-mortems might have been taken to imply authorisation for the retention of parts for subsequent “medical research or the teaching of pathology”.
[54] In the words of s4(1), post-mortem examinations not “directed to be made by a coroner or any other competent legal authority”; see also s4(2): “post-mortem examination, other than one which is directed or requested by a coroner, or any other competent legal authority”.
[55] On the substitution of “anatomical examination” for “dissection” in what became the Anatomy Act 1832 (UK) (significant elements of which are now embodied in New Zealand legislation), see R Richardson, Death, Dissection and the Destitute (1987), 204 (“In substituting the term ‘anatomical examination’ [for ‘dissection’] the authors of the second Bill intended to attenuate its meaning by a verbal trick”.). The definition of “anatomical examination” in the Human Tissue Act 1964 (NZ) is less than explicit: “examination of a body or any part of a body for the purpose of the study of the science of anatomy” (s2(1)).
[56] See the first two pages of Part 3 of this article.
[57] The words “or surviving de facto partner (whether of the same or different sex)”, in both para (a) and para (b), were added by the Human Rights Amendment Act 2001, s54.
[58] Section 2(1) of the Human Tissue Act 1964 provides in part that “ ‘Inspector’, in relation to any school of anatomy, means a person appointed under section 8 of this Act to be an Inspector of that school of anatomy”. Section 8 restricts appointment to members of the Police. In practice, senior police officers are appointed: see DG Jones and KA Galvin, n9 above, 267.
[59] The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into other related matters (1988) (“Cartwright Report”).
[60] HDC Act 1994, Pt II.
[61] HDC Act 1994, Pt IV.
[62] HDC Act 1994, ss 50-57.
[63] The Code was contained in the Schedule to the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (made in exercise of a power conferred by s74(1) of the HDC Act 1994.)
[64] Right 7(9) uses some of the same expressions as Right 7(10): “Every consumer has the right to make a decision about the return or disposal of any body parts or bodily substances removed or obtained in the course of a health care procedure.” Right 7(9) and Right 7(10) do not deal with the actual removal (or obtaining) of body parts “in the course of a health care procedure”. If the removal of parts from a dead body were proscribed by the Code, this would presumably be by way of Right 7(1). However Right 7(1), and the related provisions which follow, apply much more obviously to still-living rather than to former (now dead) “consumers”. Given the conclusion to be reached in the text (about whether a body on which a post-mortem examination is performed is still a “consumer”, and whether the examination involves a “health care procedure”), there is no need to consider whether organ extraction comes within the ambit of another key term in Right 7(1): “services” (as to which, see Code, cl 4; HDC Act 1994, s2.)
[65] The term “informed consent” is not defined in the Code, but note HDC Act 1994, s2 (“ ‘Informed consent’, in relation to a health consumer on in respect of whom there is carried out any health care procedure, means . . . “).
[66] See the definition of “consumer” in cl 4, quoted in the text (above n73) below.
[67] See Acts Interpretation Act 1924, s7, and now Interpretation Act 1999, ss 4, 34.
[68] HDC Act 1994, s2. (Section 2 commences: “In the Act, unless the context otherwise requires,–”) In the case of the expressions discussed in this article, the context does not require otherwise.
[69] The words may well have been included in the statutory definition to ensure that the Act’s requirement that the Code contain provisions relating to the principle that “no health care procedure shall be carried out without informed consent” (s20(1)(a)) would apply, not only to things done “to” a patient, but also to things done “in respect of” a patient – such as the testing of blood the patient has provided.
[70] HDC Act 1994, s2.
[71] For the current Commissioner’s recognition of the possible role of clause 3 of the Code in relation to Right 7(10), see New Zealand GP, 5 April 2000, p10.
[72] See eg Code of Rights, cl 1(1) (“Every consumer has the rights in this Code.”). Note also HDC Act 1994, s6: “The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, . . . . “.
[73] Code of Rights, cl 4. Clause 4 commences “In this Code, unless the context otherwise requires”. However, this qualification does not have any bearing on the matters examined in this article.
[74] HDC Act 1994, s2.
[75] Cf In the matter of Baby P (an unborn child) [1995] NZFLR 577 (Children, Young Persons and Their Families Act 1989, s2(1)); and see now the remarkable decision of Heath J in Re An Unborn Child, Chief Social Worker v “Nikki” (High Court, Hamilton Registry. M171/02), judgment delivered 11 October 2002 (unborn child a “person”, at least in the context of s2(1) (definition of child) of the Guardianship Act 1968).
[76] For example, when someone requests and receives information (about, for example, the likely course of her illness) without any health examination taking place.
[77] If the Ministry of Health were willing to release the drafting instructions to Parliamentary Counsel, on what became the HDC Act 1994, the reason might become apparent (as the enacted definition was identical to that contained in the original Health Commissioner Bill, introduced into Parliament in 1990). However, the Ministry has declined to make this and related drafting information available “on the grounds of maintaining legal professional privilege” (Letter from Dr Gillian Durham, Deputy Director-General of Health, dated 4 September 2002: Ministry’s ref AD 10-23-5).
[78] Cf HDC Act 1994, s2 (definition of “informed consent”): “. . . or, where applicable, by any person who is entitled to consent on that health consumer’s behalf”.
[79] Cf Guardianship Act 1968, s25(3).
[80] Cartwright Report, n59 above, 141, see also 192, 211.
[81] Ibid, 176. Judge Cartwright (as Dame Sylvia then was) was aware of the role of the Human Tissue Act 1964 in this regard: see her reference to the Act on page 141 of her report.
[82] See eg “Brain may be held ‘for months’”, New Zealand Herald, 6 March 1992, p2 (controversy about the retention of the brain of Darcy Eketone).
[83] The relevant passages are to be found at 510 NZ Parl Deb 4215-4220, 4221-4223; 540 NZ Parl Deb 1804-1810, 1811-1815; 543 NZ Parl Deb 3735-3760, 4298-4308.
[84] Neither in A Proposed Draft Code of Rights for Consumers of Health and Disability Services (60pp, July 1995), nor the first Commissioner’s “Reasons for Changes” published in connection with the Draft Code of Rights of Health and Disability Services Consumers’ Rights (71pp, [October 1995]), was there any passage which implied that the Code was to regulate anything done to or removed from a dead body. (There was also nothing with a bearing on this matter in the document relating to the amendments to the Draft Code which the Minister of Health laid before Parliament on 30 April 1996.) It seems that a few of the submissions received in response to the initial Proposed Draft Code had touched upon these matters (Appendix B — Detailed Analysis of Submissions (99pp, [1995]), page 58, and see also ibid page 10), but there was nothing in the Commissioner’s explanations or changes to suggest that any attempt had been made to deal with them.
[85] See Part 3 of this article.
[86] A great number of people have requested (in the required manner) that their bodies be used after their deaths for therapeutic purposes or for purposes of medical education and research. Under the Human Tissue Act 1964, such a request (which implies consent) does not itself permit a health care provider to remove and retain parts of the body: see s3(1), (5)(a), (6), and also s3(4),(5)(b)). If the Code of Rights were taken to apply to the removal and retention of parts following death, confusion seems likely to ensue. The previously expressed “informed consent” of the now deceased person would be sufficient for the purpose of the Code (Right 7(1), (9), (10), and perhaps (5)), but insufficient for the purpose of the Human Tissue Act.
[87] Human Tissue Act 1964, s3(1).
[88]Ibid, s2(2) (see n31 above).
[89] Ibid, s3(2).
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