UK
Europe
USA&Canada
Aust.&NZ
Asia
Editorials Online�
Medical
Law News
E-texts
Links
Classifieds
Home
|
|
Thanks to Butterworths.co.uk Can organ retention amount to tort of trespassIt was announced recently that the families of more than 2,000 patients whose body parts were removed without consent will have to take their case against the NHS to court. In the first of a two-part interview, Mervyn Fudge, partner at Bristol firm Clarke Willmott, discusses with Jon Robins why the action is breaking new legal ground... Earlier in the year it was announced that families whose dead relatives� organs were retained by hospitals without permission would have to go to the courts to win an apology or compensation. Previously some 2,000 families had been hoping to reach an agreement with the NHS Litigation Authority (NHSLA) without the need for a trial. However the negotiations, which began in May last year, broke down. Parents affected by the organ retention scandal at Liverpool�s Alder Hey Children�s Hospital received an out-of-court settlement of �5m last November, which is reckoned to amount to around �5,000 for each parent. Mervyn Fudge is advising the families that comprise the Nationwide Organ Retention Group, which more than double the number of families involved in the Alder Hey scandal. Following eight months of mediation they had been offered only 20% of the Alder Hey settlement by the NHSLA. It is a result that the solicitor calls "derisory". The solicitor claims that the mediation had broken down because the NHSLA had not been willing to alter its position. His clients were "bitterly disappointed at the outcome of negotiations and the failure to make substantial progress", he says. Fudge believes that the families� legal action is groundbreaking. "The Human Tissues Act 1961 was enacted because there had been no control on the way in which bodies and human tissues had been used since the Anatomy Act of the nineteenth century," he argues. "However the legislation did not provide for a remedy." The 1961 Act required a hospital to satisfy itself that there was a lack of objection to certain uses of tissues and organs taken from the dead. Earlier this month the trial finished hearing final submissions from the parties. However the judge has said that he might be request clarification through written submissions or even further argument. According to Fudge, the claimants argue that the offence amounts to the tort of wrongful interference with a body and removal of body parts. "The defendants say there is no such thing, but we argue that the offence is akin to trespass to the person or conversion," he adds. The defendants rely on the Bolam principle, named after a 1957 case in which the court ruled that a doctor could not be found negligent if he could show he was following current medical practice. "The defendants say that what was being done was standard practice throughout the country and therefore Bolam applies," he says. "But if Parliament has said that something must happen [under the 1961 Act] and it doesn�t, it must have assumed there would be a remedy." "The failure of the medical profession and the paternalism that existed and was revealed by the Bristol inquiry (investigating the care and management of children who underwent complex heart surgery at the Bristol Royal Infirmary) was in evidence in these cases also," the solicitor argues. "The evidence given by the defendants was that nobody thought too much about the treatment of body parts. They should have told the patients in as much detail as necessary to make sure that they were given permission and they understood what they were giving permission for." (27/02/04) If you have any comments about this or any other news item or feature, please respond via e-mail to: [email protected] Legislative annotations in other services:-
|