June Stevens V. Yorkhill Nhs Trust+south Glasgow University Hospital Nhs Trust
| Jurisdiction | Scotland |
| Judge | C J MACAULAY, Q.C. |
| Neutral Citation | [2006] CSOH 143 |
| Court | Court of Session |
| Year | 2006 |
| Date | 13 September 2006 |
| Published date | 13 September 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 143 | |
| OPINION OF C. J. MacAULAY Q.C. Sitting as a Temporary Judge in the cause JUNE STEVENS Pursuer; against (FIRST) YORKHILL NHS TRUST and (SECOND) SOUTH GLASGOW UNIVERSITY HOSPITAL NHS TRUST Defenders: ________________ |
Pursuer: H Campbell, Q.C.; Blair,; Thompsons
Defenders: Fitzpatrick; Ranald F MacDonald, Solicitor
13 September 2006
Introduction
[1] The public outcry generated by the disclosures in England in 1999 that for a number of years human organs had been removed at post-mortems by pathologists from children without the knowledge of parents led to inquiries being conducted particularly in relation to the practices at Bristol Royal Infirmary and the Royal Liverpool Children's Hospital at Alderhey. The furore spread to Scotland and, prompted by the disclosures in England, parents in Scotland inquired from health authorities whether any such practices had been prevalent in Scotland. In this action the pursuer avers that by letter dated 18 October 2000 she was advised by a representative of the first defenders that her daughter's brain had been removed in the course of a post-mortem. Apparently she was one of a number of parents in Scotland who received similar information.
[2] The pursuer now sues for damages in the sum of £100,000 and contends that as a consequence of the disclosure made in October 2000, she has suffered psychiatric injury. She contends that her psychiatric condition caused the loss of her employment.
[3] The case came before me for debate. At the outset I was informed that the second defenders are no longer involved in the proceedings. Accordingly I propose to refer to the present first defenders as "the defenders". Also, I was informed by Mr Campbell that he no longer insisted in the statutory cases made under the Human Tissue Act 1961 and the Human Rights Act 1998.
The pleadings
[4] The pursuer avers that on 30 June 1995 she gave birth to her daughter, Nicola Jane Stevens, at the Queen Mother's Hospital, Glasgow. Nicola was born with a congenital abnormality of the diaphragm, known as a diaphragmatic hernia. She was transferred to Yorkhill Hospital where she underwent a surgical operation for repair of the hernia. The pursuer goes on to aver that Nicola required support of her pulmonary and cardiac function and had to be placed on a machine which oxygenated her blood outwith her body. This machine was known as an Extracorporeal Membrane Oxygenation Machine "ECMO". It also transpired that Nicola, apart from the hernia, had a hole in the heart which also required surgery. Increasingly Nicola began to suffer from multiple organ failure and she developed septicaemia. When it was clear beyond doubt that Nicola was not going to survive, the pursuer consented to the discontinuation of the support system. Use of the ECMO machine was discontinued and Nicola died shortly thereafter on 1 August 1995.
[5] The pursuer also avers that:-
"In the short period between the life support system having been switched off and Nicola's death, the pursuer, who had been with her almost constantly throughout her life, was for the first time able to hold her in her arms. The pursuer was holding Nicola as she died. After her death, the pursuer and a friend were allowed to wash her and dress her, inter alia putting a baby's bonnet on her head. A doctor employed by the first defenders, believed to be a Dr Graham Haddock, approached the pursuer's friend, Elizabeth McDonald, shortly after the ECMO machine was switched off. He asked Ms McDonald to speak to the pursuer about a post-mortem examination of Nicola being carried out. Ms McDonald relayed this request to the pursuer, who refused to consent to a post-mortem examination. The pursuer was distraught. Dr Haddock spoke again a little later on the same night to Ms McDonald, seeking permission for a post-mortem. Dr Haddock indicated that the purpose of the post-mortem would be to help other babies born with the same congenital defect and to evaluate the ECMO trial. He did not tell Ms McDonald that the post-mortem would involve the removal of organs or the retention of organs. Ms McDonald did not know of any such intention and did not discuss any such removal or retention with the pursuer. Consequent upon the second request by Dr Haddock, she passed on to the pursuer what Dr Haddock had said in relation to the prospect of helping other similarly affected babies and evaluating the ECMO trials. In light of that the pursuer agreed to a post-mortem being carried out. The pursuer signed the 'post‑mortem book' in the ward. None of the doctors involved in Nicola's care spoke directly to the pursuer about the request for a post-mortem. No-one explained, whether directly or indirectly, to the pursuer what the post-mortem examination entailed. In particular none of them explained that organs would or might be removed, or that organs would or might be retained. The pursuer was not aware what such an examination involved, nor that organs and tissue would be removed either temporarily or for retention over a period of time. Accordingly, the pursuer did not give informed permission for the post-mortem examination. She did not give permission for Neuropathological examination and the retention of Nicola's brain thereafter. Nicola's body was given back to the pursuer shortly after the post-mortem had been performed. She was still wearing the bonnet. The pursuer was unaware that her brain and other tissue had been removed far less retained. Nicola was buried near the pursuer's home shortly thereafter".
The pursuer goes on to aver that the post-mortem was carried out by a Dr Patrick, an employee of the defenders, at Yorkhill NHS Trust Department of Pathology on 2 August 1995 and that Nicola's brain was removed and sent to the Neuropathology Department of the Southern General Hospital where it was retained. There is an issue of fact as to whether or not Dr Haddock spoke directly to the pursuer, the defenders' position on Record being that he did so. The defenders do not dispute that Dr Haddock did not say that the post-mortem examination would involve the removal or retention of organs. The defenders aver that Dr Haddock was a Senior Registrar and the clinician in charge of Nicola's care at the time of her death.
[6] The pursuer position on record is that it was only by the letter of 18 October 2000 that she learned that Nicola's brain had been retained following the post-mortem examination. She goes on to make the following averments (Article 5):
"In October 2000, the pursuer was horrified to learn that the brain had been retained at the Southern General Hospital. She felt that Nicola had not been buried whole. She was horrified, distressed and shocked. The pursuer developed a severe depressive episode, in terms of the ICD-B classification of disease. Her condition is now chronic and is unlikely to improve."
[7] The pursuer now makes two cases against the first defenders. The first of these is set out in Article 6. The essential averments are in the following terms:-
"It was the duty of the first defenders to take reasonable care for the safety and health of the pursuer as the mother of Nicola, and not to expose her unnecessarily to a risk of injury to her health. They knew or ought to have known that to carry out a post-mortem examination of a deceased person without the informed permission of their near relatives et separatim to remove et separatim to retain body parts of the deceased without the informed permission of said relatives would, reasonably foreseeably, cause pathological harm to such relatives or in any event a substantial proportion of them. It was their duty to take reasonable care to devise, institute, maintain and enforce a system whereby no post-mortem examination of a body was carried out unless and until the near relatives (in the present case the pursuer) had been informed by a doctor or other qualified person authorised by them of the fact, nature and extent of what was likely to be involved in the post-mortem, and had consented thereto in light thereof. It was their duty to take reasonable care to devise, institute, maintain and enforce a system whereby, in the event that the post-mortem would or might involve the removal or retention of organs, no such removal or retention of organs was made unless and until the near relatives of the deceased had been informed by a doctor or other qualified person authorised by them as to the fact and nature and extent of the proposed or potential removal and/or retention, and had consented thereto in light thereof. It was their duty to take reasonable care not to remove et separatim, not to retain body parts from Nicola without having sought and obtained the pursuer's consent thereto, having first explained to her that the post-mortem would involve the removal and retention of tissue and was likely to involve the removal and retention of organs".
[8] The second case made against the defenders is set out in Article 7. The pursuer contends that the actings of the defenders and doctors Haddock and Patrick were illegal. She avers that the removal and retention of body parts from Nicola were acts which were unlawful in the absence of consent of the pursuer and that these unlawful actings have caused loss, injury and damage.
[9] The first and second pleas-in-law for the pursuer are designed to reflect the two separate cases made. The first plea-in-law focuses on fault and the second focuses upon the alleged unlawful actions for which it is alleged the defenders are responsible.
Submissions
Submissions for the defenders
[10] Mr Fitzpatrick invited me to sustain the first plea-in-law for the defenders and to dismiss the action as irrelevant.
[11] In attacking the case made by the pursuer based on fault Mr Fitzpatrick drew attention to the way in which the pursuer's case had been formulated. His point was that the pursuer's averments were the type of...
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