Supplementary memorandum by the Human
Tissue Authority
First—Q372 at the foot of page 21—the
Chairman invited you to send any further thoughts on how cold
perfusion is handled in those hospitals (possibly just one hospital)
that use it.
Baroness Neuburger had asked me whether the
process of cold perfusion of a body to keep organs cool while
the consent position was checked—the classic area of tension
between Coroners and transplant teams—generally took place
in intensive care units or in accident & emergency departments.
I am informed by colleagues in the field that
cold perfusion would normally take place in accident & emergency—where
someone has been brought in dead or has died after a fruitless
attempt to resuscitate.
As I mentioned in my evidence, the process of
cold perfusion is lawful under the Human Tissue Act 2004 but currently
only takes place at one hospital; the need to agree an approach
with the Coroner is one reason why it does not obtain elsewhere.
Second, Q376—on page 23—the Chairman
asked if you would write about the issues that had arisen with
the implementation of the Tissue and Cells Directive which had
led to the need for it to be "fine-tuned".
The Chairman's request goes back to the point
I had earlier made about the degree of detail contained within
the Tissues and Cells Directive. The Directive was very specific
about processes and materials to which it applied, or not; and
is now having to be amended to pick up initial omissions, for
example donor lymphocyte infusions.
A point we would make here is that, because
of the degree of detailed prescription contained in that Directive,
we were unable to enact it through existing UK legislation—the
Human Tissue Act 2004—but, had we been able to do so, we
would have had the flexibility which that Act provides (through
Directions, for example) to adapt and to fine-tune the provisions
in the light of experience in implementing them.
Several Members were puzzled both last week
after the session with Lord Patel and after the session this week
with the GMC about the issue (which I did not mark up in the suggested
questions list) as to the legal position relating to the ownership
of a deceased person's body. The response that Jane O'Brien of
the GMC gave was helpful—but I wonder whether it would be
possible to send me a short written account of how the HTA sees
the position.
I'm not sure that we can add much to the evidence
of other witnesses. The Human Tissue Act 2004's provisions on
consent for activities including organ donation are framed in
a way which does not involve the issue of ownership; and have
been implemented successfully on that basis.
It has not therefore been necessary for the
Human Tissue Authority to provide guidance on the topic.
Our view (I imagine widely shared) is that,
as there is no statute,the position is as established in common
law. Halsbury's Laws of England states that "It is said that
the law recognises no property in a dead body . . .."
We have also noted that in Dobson and another
v Tyneside Health Authority and another [1996]4 All ER 474
(case law) it says "in the present state of the English authorities
there is no property in a corpse (see Williams v Williams
(1882) 20 Ch D 659 at 662-663 and Clerk and Lindsell on Torts
(17th edn, 1995) p 653, para 13-50.
2 April 2008
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