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Hospital Post Mortems and Removal of Tissues and Organs
The right to remove, store and use tissues and organs from the body of a dead person is set out in the Human Tissues Act 2004 (‘HTA’) which applies to England, Wales and Northern Ireland. This Act was introduced by the Government in response to public concern about the use of organs and tissues following inquiries into events at Bristol Royal Infirmary and the Royal Liverpool Children’s Hospital (Alder Hey). The HTA also established the Human Tissue Authority, which as well as having a regulatory function, issues codes of practice, which should be referred to for more detailed guidance about proposed removal or use of human tissue, including post mortem.
It is lawful to remove, store and use human tissues from a dead person for the following ‘scheduled purposes,’ but only when the appropriate consent (see below) has been provided: determining the cause of death, establishing after a person’s death the efficacy of any drug or other treatment administered, obtaining medical or scientific information which may be relevant to another person, research about the body or transplantation, education or training related to public health, clinical audit, performance assessment, public health monitoring or quality assurance.
In addition, the HTA requires that a person provide written and witnessed consent before death for the use of his or her body for anatomical examination or public display. A relative cannot provide this consent after the deceased’s death, it must be provided by the deceased before death.
There is an exception for the need to obtain consent where human tissue which has not been obtained with the appropriate consent has already been retained, but only for one of the scheduled purposes above. Consent is also not required where human tissue has been imported or comes from the body of a person who died before the consent regime came into force and at least 100 years have passed since the death. There are also special provisions relating to coroners, whose duty to establish how the deceased died overrides the need for consent in relation to his/her investigation. See further below - Coroners post mortem examinations.
Appropriate consent (which is more than merely an absence of refusal) may be obtained from the deceased prior to death, or from a nominated representative (if appointed by the deceased before death) or from a qualifying relative. The code of practice on consent issued by the Human Tissue Authority recommends that when seeking consent full and clear information should be provided to enable a nominated representative or qualifying relative the ability to make a properly considered decision. This should include the nature of the intended activities and the reason for them.
There are different ways of appointing a nominated representative:
If neither the deceased nor a nominated representative has given or withheld consent, this should be obtained from the person who stood in a qualifying relationship to him or her immediately before he or she died. The qualifying relationships proposed are (ranked in the following order when consent is being sought): (a) spouse or partner, including civil or same sex partner (b) parent or child; (c) brother or sister; (d) grandparent or grandchild; (e) child of a brother or sister; (f) stepfather or stepmother; (g) half-brother or half-sister; longstanding friend.
If there is more than one person in the same ‘rank’ (for example, two children of the deceased) it is lawful to obtain the consent of any one of them for storage or use of tissue for a qualified purpose. In order to analyse DNA from the deceased it is also lawful to obtain the consent of just any qualifying relative and there is no ‘ranking’ of relatives for this purpose.
If the deceased gave clear authorisation for use of their tissues following death, close relatives do not have any right to veto that consent. Similarly close family members cannot override a decision taken by the nominated representative. The code of practice on consent issued by the Human Tissue Authority suggests that a qualifying relative can be omitted from the ranking hierarchy if they cannot be located in reasonable time for the activity in question (for example, organ transplantation) to take place or if a qualifying relative declines to deal with the matter or is unable to do so.
A child who is competent to reach a decision can give consent for one or more of the scheduled purposes to take place after their death. If the child did not make a decision before death appropriate consent should be obtained from a person with parental responsibility for the deceased child.
Although not required under the HTA, the code of practice on consent issued by the Human Tissue Authority recommends that consent be obtained for examination of fetal tissue for scheduled purposes regardless of gestational age.
It is lawful to remove, store and use human tissues from a dead person for the following ‘scheduled purposes,’ but only when the appropriate consent (see below) has been provided: determining the cause of death, establishing after a person’s death the efficacy of any drug or other treatment administered, obtaining medical or scientific information which may be relevant to another person, research about the body or transplantation, education or training related to public health, clinical audit, performance assessment, public health monitoring or quality assurance.
In addition, the HTA requires that a person provide written and witnessed consent before death for the use of his or her body for anatomical examination or public display. A relative cannot provide this consent after the deceased’s death, it must be provided by the deceased before death.
There is an exception for the need to obtain consent where human tissue which has not been obtained with the appropriate consent has already been retained, but only for one of the scheduled purposes above. Consent is also not required where human tissue has been imported or comes from the body of a person who died before the consent regime came into force and at least 100 years have passed since the death. There are also special provisions relating to coroners, whose duty to establish how the deceased died overrides the need for consent in relation to his/her investigation. See further below - Coroners post mortem examinations.
Appropriate consent (which is more than merely an absence of refusal) may be obtained from the deceased prior to death, or from a nominated representative (if appointed by the deceased before death) or from a qualifying relative. The code of practice on consent issued by the Human Tissue Authority recommends that when seeking consent full and clear information should be provided to enable a nominated representative or qualifying relative the ability to make a properly considered decision. This should include the nature of the intended activities and the reason for them.
There are different ways of appointing a nominated representative:
- Orally before at least two witnesses present at the same time.
- In writing if the document is signed by the deceased or at his/her direction in the presence of at least one witness who witnesses the signature.
- Contained in a valid will.
If neither the deceased nor a nominated representative has given or withheld consent, this should be obtained from the person who stood in a qualifying relationship to him or her immediately before he or she died. The qualifying relationships proposed are (ranked in the following order when consent is being sought): (a) spouse or partner, including civil or same sex partner (b) parent or child; (c) brother or sister; (d) grandparent or grandchild; (e) child of a brother or sister; (f) stepfather or stepmother; (g) half-brother or half-sister; longstanding friend.
If there is more than one person in the same ‘rank’ (for example, two children of the deceased) it is lawful to obtain the consent of any one of them for storage or use of tissue for a qualified purpose. In order to analyse DNA from the deceased it is also lawful to obtain the consent of just any qualifying relative and there is no ‘ranking’ of relatives for this purpose.
If the deceased gave clear authorisation for use of their tissues following death, close relatives do not have any right to veto that consent. Similarly close family members cannot override a decision taken by the nominated representative. The code of practice on consent issued by the Human Tissue Authority suggests that a qualifying relative can be omitted from the ranking hierarchy if they cannot be located in reasonable time for the activity in question (for example, organ transplantation) to take place or if a qualifying relative declines to deal with the matter or is unable to do so.
A child who is competent to reach a decision can give consent for one or more of the scheduled purposes to take place after their death. If the child did not make a decision before death appropriate consent should be obtained from a person with parental responsibility for the deceased child.
Although not required under the HTA, the code of practice on consent issued by the Human Tissue Authority recommends that consent be obtained for examination of fetal tissue for scheduled purposes regardless of gestational age.
