Consent or Property? Dealing with the Body and its Parts in the Shadow of Bristol and Alder Hey
| Date | 01 September 2001 |
| DOI | http://doi.org/10.1111/1468-2230.00347 |
| Published date | 01 September 2001 |
Consent or Property? Dealing with the Body and its Parts
in the Shadow of Bristol and Alder Hey
J. K. Mason* and G. T. Laurie**
This article first considers the tenuous base on which the law of property in the
body is founded, and then discusses the practical results of this in the light of the
recent furore surrounding events at Bristol and Alder Hey. The authors suggest
that neither the consent-based model followed by the official inquiries into these
events nor a possible policy based on a full-blown property model adequately
cover the private rights of an individual’s next of kin or the right of the public to
an efficient and reliable pathological service within the NHS. Rather, they
propose that a combined model in which a `cascade of possession’ for the
recognition of various property interests is initiated by assent on the part of the
next of kin and terminates in full possession of the body vested in the executor for
the purposes of its disposal. The authors recommend further that any reform of the
law should apply property rights to body parts taken from both the living and the
dead.
A constant shifting of moral and ethical standards is the very essence of a pluralist
society, and usually this movement gradually becomes embodied within the law.
However, the Western jurisdictions seem to have maintained over the centuries a
steady state of general ambivalence towards dead bodies and those who deal with
them. This ambivalence is directly reflected in the law in the United Kingdom,
which is premised on the old and rather dubious rule that there is no property in a
corpse. While this rule still remains the basis of the modern law, more recent
developments concerning the removal and retention of body parts at post-mortem
examination – which have been the subject of a number of high profile
governmental inquiries1– furnish us with strong evidence of a major, and hitherto
unnoted, attitudinal change on the part of the public that has arisen in relation to
the way in which we consider our bodies and to the value that is, or can be,
attached to them.
To some extent, this is inevitable when a population that is accustomed to the
carnage of war is gradually replaced by one that sees death as an intensely private
matter. Closer consideration, however, discloses more particular reasons for this
shift of sentiment. These include, (a) a heightened public awareness and interest in
medical practices, (b) increased respect for individual and familial autonomy, (c) a
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
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* Professor (Emeritus) of Forensic Medicine; ** Senior Lecturer in Law, School of Law, University of
Edinburgh.
1 See, the Bristol Royal Infirmary Inquiry, Interim Report: Removal and Retention of Human Material
(May 2000); the Report of the Royal Liverpool Children’s (Alder Hey) Inquiry, House of Commons
(January 2001) (Redfern Report); Advice from the Chief Medical Officer, The Removal, Retention
and Use of Human Organs and Tissue from Post-mortem Examination (London: Department of
Health, 2001); Advice from the Chief Medical Officer, Report of a Census of Organs and Tissues
Retained by Pathology Services in England (London: Department of Health, 2001); Health Services
Directorate, Report of Content Analysis of NHS Trust Policies and Protocols on Consent to Organ
and Tissue Retention at Post-mortem Examination and Disposal of Human Materials in the Chief
Medical Officer’s Census of NHS Pathology Services (London: Department of Health, 2000). These
documents are accessible via the Department of Health’s website:
Scotland, see Report of the Independent Review Group on the Retention of Organs at Post-mortem
(January 2001) (McLean Report).
less deferential attitude towards the medical profession, and (d) growing evidence
of the value of human body parts, both in commercial and in ethical terms.
The official inquiries, and several other reports,2have opted for a resolution
which originates in ethical discourse rather than in law. Moreover, they have
adopted an approach which has only relatively recently been accepted into law, and
principally through the discipline of medical law which itself has existed as a
nascent discipline in its own right for only a few decades. This approach is via the
consent model, which is the primary means by which respect is paid to individual
autonomy. Rightly or wrongly, the current view of ‘autonomy’ is that it identifies
the individual as an independent and unfettered ‘chooser’.3The importance of
autonomy and consent in the health care setting then becomes axiomatic – it is the
key principle that serves to legitimise dealings between health care professionals or
researchers and patients or research subjects.
The value of the consent model has been accepted unquestioningly in the context
of Alder Hey, Bristol and Scotland – 31 of the 69 recommendations in the interim
report of the Bristol Inquiry, for example, relate to consent. In parallel with this,
the Chief Medical Officer4and the Secretary of State for Health5have recom-
mended a tightening up of consent procedures in England and Wales pertaining to
the removal and retention of human tissue following post-mortem examination,
and the McLean group in Scotland has done the same.6
The ethical imperative to obtain informed consent has become a powerful
medico-legal norm in recent years, but its meaning has become imprecise, if not
distorted. One is reminded of the words of the American Judge Frankfurter: ‘A
phrase begins life as a literary expression; its felicity leads to its lazy repetition;
and repetition soon establishes it as a legal formula indiscriminately used to
express different and contradictory ideas’.7
In this article we consider the flaws of the consent model that has been proposed
as a solution to the practices at Alder Hey, Bristol and around the country, and we
question its ability to provide the optimal legal and ethical solution to the dilemmas
that we face when dealing with human body parts. In particular, we explore the
collateral option of applying a consistent and coherent property model in
evaluating the status of excised body parts or tissues – not as an alternative to
the consent model, but as a necessary and valuable adjunct to it. While the current
spate of inquiries and their reports are concerned with the treatment of body parts
post-mortem, we do not believe that their recommendations, or the attitudes that
underlie them, are of relevance only to body parts removed from the dead. Rather,
they speak to the question of the status of human body parts more generally,
including those taken from the living. Although we concentrate on the dead –
insofar as that is the topic of current interest – our conclusions as to the relevance
of property in human tissues should be seen as incorporating this view.
2 See for example Nuffield Council on Bioethics, Human Tissue: Ethical and Legal Issues (April
1995); Working Party of the Royal College of Pathologists and the Institute of Biomedical Science,
Consensus Statement of Recommended Policies for Uses of Human Tissue in Research, Education
and Quality Control (1999) and Medical Research Council, Working Group on Human Tissue and
Biological Samples for Use in Research: Report of the Medical Research Council Working Group to
Develop Operational and Ethical Guidelines (1999).
3 For criticism of this concept of autonomy, see O. O’Neill, Autonomy and Trust in Bioethics
(Edinburgh: The Gifford Lectures, 2001).
4 Advice from the Chief Medical Officer, n 1 above.
5 ‘New Laws Will Stop ‘‘Shocking’’ Organ Removal’, The Times, 29 January 2001.
6 McLean Report, n 1 above.
7 In Tiller vAtlantic Coast Line Railroad Co 318 US 54 (1943) at 68.
September 2001] The Body and its Parts
ßThe Modern Law Review Limited 2001 711
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