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Friday, 28 June 2013

CM v The Executor of the Estate of EJ (deceased) [2013] EWHC 1680 (Fam): a Right to Know

Modern medical ethics have their origin in the very roots of Western Civilisation.  There is the Hippocratic oath, deriving from the late fifth century BC, part of which is usually translated along the following lines:

I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.

Then there is the Biblical Parable of the Good Samaritan (Luke 10:29-37), in which Jesus tells the story of the beaten and injured traveller (who might be Jewish) by the side of the road, whom the eponymous Samaritan goes out of his way to assist despite an historic conflict between Jews and Samaritans.  The resultant concept of “neighbour” as one’s fellow man has been heavily influential not only in medical ethics but also in law, most famously in Lord Atkin’s speech in Donoghue v Stevenson.

Fully imbued with modern ethics and the spirit of both Hippocrates and Luke was the claimant in CM v EJ [2013] EWHC 1680 (Fam) an interesting case raising some fundamental principles of medical law and philosophy.

The claimant, referred to as “CM” in the judgment, was a medical doctor, a consultant and professor at one of London’s principal teaching hospitals.  In May 2013, she was driving home, off duty, when she saw the body of the deceased, EJ, lying motionless on the pavement. EJ was seriously injured and had bled profusely. CM performed emergency first aid on EJ but the latter died at the scene. In the course of the resuscitative efforts, CM's hands became covered with EJ's blood.

On her return home, CM noticed that she had a number of abrasions on her hands, probably caused by the alcohol handwash which she used in her work. She was anxious about the risk of being infected with a blood-borne disease and commenced a course of prophylactic antiretroviral medication. The drugs, which had the potential to cause long-term harm, left CM feeling extremely unwell.

CM wished to establish whether there was any risk that she had been contaminated by any serious blood- borne illness. The coroner was asked for his co-operation in obtaining samples of EJ's blood or tissue for testing. He had no objection, but the problem was that he had no free-standing power to permit the sampling or testing.  It had to come either from the deceased’s immediate living relatives, or from an order of the High Court. 
The police were able to trace a family member, OP, who was EJ's mother's cousin. He confirmed that EJ's parents lived abroad and were not yet aware of her death. OP stated that he was EJ's closest relative in the United Kingdom and gave his consent to the taking of a blood sample.  To be on the safe side, CM issued proceedings seeking declarations in the High Court regarding the lawfulness of the sampling and testing.

The governing legislation was the Human Tissue Act 2004. It created a range of offences for removing, storing or using human tissue for purposes without appropriate consent.  Under the 2004 Act, the Human Tissue Authority (“HTA”) was established to regulate activities concerning the removal, storage, use and disposal of human tissue; the HTA had in turn published helpful Codes of Good Practice which were relevant to CM’s application.

The judge in the High Court, Cobb J, held that “consent” was the fundamental principle of the Act and the associated Codes. Consent underpinned the lawful removal, storage and use of body parts, organs and tissue. In particular, the Act provided that consent was required for material (such as blood or human tissue) to be removed, stored or used for “obtaining scientific or medical information, which may be relevant to a person including a future person.” In the absence of the requisite consent, the removal, testing, or storing of human tissue would be a criminal offence (s 5).

The effect was that:

(i)        A coroner could remove, store and use relevant material for the purpose of the post mortem examination to determine the cause of death without obtaining the consent of relatives;

(ii)       A coroner did not have the power to consent to samples being taken for the benefit of a third party;

(iii)      A coroner’s consent was required before any sample could be removed, stored or used for purposes other than in the exercise of his own functions or authority.

In the circumstances, Cobb J held that it was 'not reasonably practicable' to seek the consents of EJ's parents for the removal or use of blood or tissue from EJ 'within the time available' (s 27(8)). There was no indication that EJ had other relatives in the list of 'qualifying' persons available from whom consent could be taken. Further, OP was a person in a 'qualifying relationship' within the definition of s 3(6)(c) and s 27(4)(h), for the purposes of giving consent to the removal, storage and use of samples of EJ's blood or human tissue. He had given relevant consent for the purposes of the Act. Furthermore, the coroner had indicated his agreement to the removal and testing of the relevant material, subject to the consent obtained from the qualifying person. Accordingly, that opened the gateway for the exercise of the court's discretion under the inherent jurisdiction to authorise the removal, storage and use of EJ's human tissue samples as sought by CM.

The jurisdictional hurdle crossed, the court had little hesitation in granting the relief sought. CM's request only arose because she had undertaken an act of great humanity in attempting to save EJ's life. If testing were not to be undertaken, CM would live for the foreseeable future in a state of profoundly anxious uncertainty as to whether she had contracted a serious, life-threatening illness. That would doubtless affect not only her personal well-being, but also her ability to treat other patients in the context of her highly skilled profession. Further, CM was suffering the harmful (and extremely discomforting) side-effects of the antiretroviral medication.

CM’s application was therefore allowed and the tests undertaken.  A most happy ending ensued, because the test results came back negative and CM was able to stop taking the distinctly unpleasant antiretroviral drugs. 

The result seems obvious in logic: no-one could argue that CM should be told if her act of spontaneous humanity had had tragic consequences.  The need for an answer was all the more pressing in order to lift the sword of Damocles from above her head in the form of the uncertainty about disease, and of course to allow CM to stop taking the excruciating drugs. 

Nor is the case based on unusual or improbable facts – off duty doctors treating the ill are hardly unknown.

Two interesting points of wider scope remain.  The first is the extent to which a family’s right to the body of a deceased – based on culture, religion, or anything else – should be balanced against either the right of an individual such as CM or indeed society in general.  Suppose the family had been contactable and refused consent.  Suppose CM suffered irreparable liver or kidney damage as a result of the drugs she was taking, which turned out not to be necessary anyway.  As much as one’s culture or religion or beliefs of any sort deserve respect, EJ herself was dead and therefore no longer in possession of any rights as such (and what if she would not have objected to testing but had never recorded her views in writing, but her family were of some devout persuasion and had different ideas?).  It seems to me that the coroner should have had the power to undertake the testing in the circumstances, and if the family objected once they had been informed they could seek injunctive relief or sue for damages, assuming they could establish that the coroner’s actions or intended actions were unlawful.

The same sort of question arises also in the context of organ donation: a utilitarian approach would have no hesitation in making organ donation the default choice at least and perhaps even compulsory irrespective of the wishes of the deceased, their family or anyone else.  Suppose a wave of zealotry enveloped the population and suddenly no organs were being donated and no bodies were available to medical science.  Latter day Burkes and Hares started to flourish.  Would there not be an argument for the state to act, even if there was a serious clash with the newly prevailing religious zeitgeist?

The second general point concerns the fact that in English law, CM’s actions were purely voluntary, in direct contrast to the position in most civil law countries.  An interesting post on the case on the UK Human Rights Blog explains the difference:

[M]ost civil law countries impose a positive duty to rescue, which means that if a person finds someone in need of medical help, he or she must take all reasonable steps to seek medical care and render best-effort first aid. A famous example of this was the investigation into the photographers at the scene of Lady Diana’s fatal car accident: they were suspected of violation of the French law of “non-assistance à personne en danger” (deliberately failing to provide assistance to a person in danger), which can be punished by up to 5 years imprisonment and a fine of up to 70,000 euros. 

Some food for thought, though for space reasons I will leave it there for now. 

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