Body parts scandal comes to court
Two thousand UK families are suing the NHS over the removal and retention of deceased family members' body parts - but do they have a case?
On Monday 26 January, over 2000 UK families started a claim for compensation from the National Health Service (NHS) for the removal and retention of body parts from deceased children and adults.
‘Scandal of the bodysnatchers’ was how the Daily Express broke this news on its front page last week (1). The BBC also gave the story prominent airtime (2) – yet neither questioned the merit of the families’ claims. The Daily Express called on the NHS to give in and ‘grant the bereaved proper compensation’. By securing a front page ‘exclusive’ in the Daily Express, it was as if the claimants were seeking to achieve by public relations what they feared they could not achieve in the courtroom.
The claims arise out of the Alder Hey scandal of the late 1990s, when the Royal Liverpool Children’s Hospital was accused of removing deceased children’s organs without their parents’ knowledge. Since 1999 a number of legal claims have been made against different hospitals in England and Wales. As there were many common features to these claims they were grouped together in what is called a group or class action. In the event there were two class actions – one relating to the retention of organs in Alder Hey, and the other to all other hospitals. The Alder Hey claims were settled early in 2003 with an out-of-court settlement of £5million, a sum equivalent to about £5000 for each child.
The national claims have not been settled – offers of about £1000 per child were turned down by the claimants – hence the current High Court trial that is expected to last for about two weeks. When these claims came before Mr Justice Gage last year, he observed that the legal issues were complex (3). Yet there is no reason why any civil claim for damages should be complex. All that is required is, first, a civil wrong, such as an act of negligence, a breach of statutory duty, or a deceit; and secondly, some damage resulting from the civil wrong. The problem facing the claimants in the national case is that it is far from clear that they have been the victims of a civil wrong, or that they have been caused any damage.
When then health secretary Alan Milburn reported to the House of Commons on the day the Redfern Inquiry into Alder Hey was published in January 2001, he noted that the situation in Alder Hey had been unique. He claimed that the ‘problem’ in other hospitals was that organ retention had been without relatives’ ‘full knowledge and agreement’. By this he meant that hospitals had been ambiguous by asking relatives whether they consented to the taking of ‘tissues’, because ‘tissues’ sometimes embraced ‘organs’. In other words, the practice of not asking anguished relatives which specific parts of the deceased the hospital could take for medical research, was now to be considered unacceptable.
In the House of Commons it may be legitimate to use the standards of today to criticise the standards of yesterday, but it is hardly a promising basis on which to mount a civil claim for damages in a court of law. No wonder a spokesman for the NHS Litigation Authority, representing the defendant NHS trusts, said: ‘the claimants will have to convince the court that the entire medical profession has been acting illegally for the last 40 years. … That society expects a thing to be done differently now does not mean that they were wrong or illegal in the past. Many things our parents and grandparents accepted would not now be acceptable to use.’ (4)
The situation in Alder Hey was different – according to the Redfern Inquiry, Professor Dick van Velzen had sometimes ignored parents’ wishes when they said that they did not want a full post-mortem. This may explain why the NHS was prepared to compromise on the Alder Hey claims. A spokesman for the NHS Litigation Authority said: ‘the nationwide group is different in several respects to the Alder Hey group, although we applied identical principles to both. We felt the nationwide group had a significant proportion of claimants whose cases were not likely to succeed.’ (5)
Perhaps because the national claimants’ lawyers recognise that it will be difficult to establish a civil wrong at the time the organs were taken, it is thought that they will put their claims on an alternative and additional basis, by attacking the way the claimants were informed that they were involved in the body parts affair. The Daily Express cited the example of one couple who lost their three children in a house fire in 1988 – having rebuilt their lives, they were distraught when they received letters in 2001 from the hospital telling them that parts of their children had been stockpiled. ‘I thought it was a hoax, that someone was being cruel to us’, said Ann Vincent, of Stevenage, Hertfordshire – ‘then the police looked into it and they found out that it was true’ (6).
By focusing on actions in the wake of the body parts affair rather than in the hospital, the claimants could at least argue that something had happened that should not have happened. The mawkish fact that several thousands of parents were reminded of the deaths of their loved ones many years after the event could indeed be described as a scandal. But the claimants are unlikely to attack the fact that these letters were sent. On the contrary, they are likely to attack the manner in which the families were informed.
It has become fashionable in legal claims to seek damages on the basis that certain kinds of information should have been provided with counselling. ‘Critical Incident Stress Debriefing’ (CISD) is the forensic title that this idea is often given (7). One does not need a degree in psychotherapy to realise that in some situations distressing information should not be conveyed in a letter. Where to draw the line is a matter of judgment. But it is another matter to claim that misjudgement equals legal liability. Those parents who did not welcome the past being dug up may have been even more irritated had they been troubled by a personal visit from a postman cum counsellor. As David Wilshire MP, whose own young daughter had died, said in the House of Commons: ‘I do not want someone knocking at my door to discuss parts of my daughter. I simply do not want wounds to be reopened.’ (8)
The second element of any civil claim will also have to be addressed: what damage have the claimants suffered? It has long been settled that in English law no damages are awarded for simply grief or emotional distress at an injury or death (9). In certain circumstances damages may be recoverable for medically recognised psychiatric injury, but it is difficult to see how the more than 2000 claimants in this case could all claim to have suffered a medically recognised psychiatric injury. And even if some of them were able to show this, they would still encounter the control mechanisms that were developed in the wake of the Hillsborough football stadium litigation to restrict liability for psychiatric harm. For example, they would need to show that they were in physical proximity to the ‘accident or its aftermath’ (10).
When Mr Justice Gage considered this litigation in 2003, he also noted that the case ‘may be to some extent ground-breaking’. On the basis of the current state of the law these cases are likely to fail. In bringing these claims the claimants’ lawyers are seeking create new circumstances where damages can be recovered for emotional harm. Of course they may succeed, given the law’s modern-day reluctance to turn away those who claim to have been emotionally harmed (11). No wonder the claimants’ barrister Richard Lissack QC made an emotional pitch on the first day of the trial: ‘It ill-behoves journalists, politicians or lawyers to sit in judgment on the claimants who bring this action unless each can say “I understand what you have gone through” and mean it.’ (12)
But win or lose, this case will have undesirable consequences. First, it will be costly. In 2003, the NHS obtained a costs cap on the amounts of money that the claimants could spend on the case. By then the claimants’ solicitors had already spent £1.45million on ‘generic issues’ and about £0.37million on the individual claimants’ cases. The judge allowed the claimants to spend another £0.5million in bringing the case to trial. In addition, the NHS will also have incurred a considerable sum in resisting the claim. If the claimants were to win they would be seeking upto £15million in damages. It is salutary to wonder how much more beneficial it would have been to have spent these sums of money on medical research.
Secondly, the claimants will pay a high personal price for this litigation. They will have to relive, for the umpteenth time, the loss of their loved ones. As the claimants’ solicitor Mervyn Fudge said: ‘When this is finished it will give the families closure and allow them to put this behind them.’ Which rather begs the question: why drag it up and prolong it through litigation in the first place?
However, it is outside the courtroom that the body parts litigation will have the most damaging consequences. The use of human tissue for medical research has hitherto been largely untouched by civil law – hence the fact that this class action is seen as groundbreaking. The issue was traditionally governed by a sense of trust between doctors, patients and patients’ relatives. This litigation will deal a body blow to that relationship of trust, by suggesting that it should be overseen by the civil law (at a time when the government is already proposing to legislate for the intervention of the criminal law (13)).
Ruth Webster, coordinator of the National Committee Relating to Organ Retention that represents many of the families, highlights the issue of trust. When her daughter died about 16 years ago she signed a form consenting to ‘limited tissue samples’ being taken at a post mortem examination. She asks: ‘how would anyone, grieving over their baby’s death, understand a form they were signing when it just mentioned the word tissue?’ In truth, most parents in these circumstances probably would not want the medical explanation to go further – yet if it becomes an issue for civil liability then precision and certainty will become the order of the day. The possibility of a civil suit will mean medical practitioners ensuring that the bereaved’s ‘consent’ will withstand cross-examination many years later in a court of law. By introducing the threat of civil liability into the removal of human tissue, agreements that were once underwritten by trust will increasingly tend to be drafted and monitored by lawyers.
The Daily Express headline ‘Scandal of the bodysnatchers’ was inappropriate because there were no bodysnatchers (14). Even in Alder Hey, where Professor van Velzen was popularly vilified as a necromancer, all charges of serious professional misconduct against the other doctors have been dismissed. Indeed when consultant paediatrician Dr Andrew Selby was cleared of lying to the parents of a baby boy about the nature of a post-mortem examination for which he asked their consent, consultants at Alder Hey issued a statement saying: ‘We feel wholly demoralised by what our colleague Dr Selby has been through. He is a first class consultant and this is absolutely the right decision. He followed the standard procedures and practices for consent for post-mortem which were in place at the time….it is wrong to judge someone’s actions in 1999 on new guidance.’ (15)
In fact, the scandal was one that was created by politicians and key figures in the medical elite, who fostered a sense of grievance among bereaved relatives (16). What is now clear is that there is a new scandal being fostered by lawyers who are bringing cases that are weak in law and strong on emotion. Sadly, whether or not these cases result in an award of damages to any claimants, there will be few winners and many losers.
Jon Holbrook is a barrister. Email Jon.Holbrook@BTinternet.com
spiked-issue: Body parts
(1) ‘Horror of kids’ stolen body parts’, Jo Willey and John Chapman, Daily Express, 19 January 2004
(2) Body parts families to sue NHS, BBC News, 19 January 2004
(3) A & B v (1) Leeds Teaching Hospitals NHS Trust (2) Re Nationwide Organ Group Litigation,  EWHC 1034 (QB), 9/5/03
(4) ‘Horror of kids’ stolen body parts’, Jo Willey and John Chapman, Daily Express, 19 January 2004
(5) NHS sued over ‘mean’ offer to grieving parents, Jo Revill, Observer, 26 January 2003
(6) ‘New blow for couple in blaze tragedy’, Jo Willey, Daily Express, 19 January 2004
(7) ‘Early interventions following exposure to traumatic events – psychological debriefing and the law’, Kay Wheat and Stephen Regel, Journal of Personal Injury Law, December 2003, p225-235
(8) House of Commons, 30 January 2001
(9) Lord Denning MR in Hinz v Berry  2 QB 40 @42
(10) Alcock v Chief Constable of South Yorkshire  1 AC 310, HL
(11) See, for example, Adopting the blame game, by Jon Holbrook
(12) Organ removal condemned in court, BBC News, 26 January 2004
(13) Bodily harm, by Helene Guldberg
(14) ‘Scandal of the bodysnatchers’, Jo Willey and John Chapman, Daily Express, 19 January 2004
(15) GMC clears Alder Hey doctor of dishonesty, Owen Dyer, British Medical Journal, 30 November 2002
(16) The high price of Alder Hey, by Dr Michael Fitzpatrick
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