The good Samaritan doctor and the Human Tissue Act
26 June 2013
CM v The Executor of the Estate of EJ (deceased)  EWHC 1680 (Fam) – read judgment
You would have thought the law would be entirely behind a person who intervenes to help a stranger in distress. Indeed most 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. But the position in common law countries like the UK and the United States is completely different: you can watch a child drown and not be held to account.
Of course no good citizen would do such a thing and in this case the claimant, a medical doctor, went out of her way to try to save the life of someone in extremis. She was driving home, off duty, in South East London, when she saw a body lying motionless on the pavement. Passers-by had stopped by the body. CM parked her car, and attended the scene. The body was of a woman (“EJ”) who appeared to have fallen from a building nearby to where she lay. It was obvious that EJ was seriously injured, and she had bled profusely. CM performed emergency first aid on EJ, seeking to facilitate the possibility of her breathing by stabilising and clearing the neck and airways. Paramedics were called. Despite the efforts of CM and the paramedics, EJ died at the scene. In the course of the resuscitative efforts, CM’s hands became covered with EJ’s blood.
Later, when she washed her hands, CM noticed that she had a number of abrasions on her hands (probably caused by the alcohol hand wash which she uses in her work). Understandably anxious about the risk of being infected with a blood-borne disease from the deceased, CM commenced a course of prophylactic antiretroviral medication. These drugs have significant and unpleasant short-term side-effects which left her feeling extremely unwell (including myalgia, nausea, diarrhoea, and fever); these powerful drugs have the potential to cause long-term harm (including renal, liver and pancreatic dysfunction).
Not surprisingly CM wished to establish that she had not been exposed to any serious blood-borne illness such as the HIV antibody/antigen, the hepatitis B virus (HBsAg), hepatitis C, and/or HTLV1 and 2 antibodies. This could be done by testing EJ’s blood or human tissue in an Enzyme Immuno Assay machine. As the judge said
Were CM to contract any one of the named diseases it would inevitably have devastating implications for her life, quite apart from the impact on her eminent career in the medical profession.
However under the Human Tissue Act 2004 the Coroner had no power to authorise such testing. EJ was a foreign national with no relatives at hand to give the requisite consent, and in the absence of consent, the removal or testing of human tissue is a criminal offence. Nor does the Coroner have any power under the Act to consent to samples being taken for the benefit of a third party, although under the same provision the Coroner may
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 (S.11 HTA)
Needless to say, time was of the essence in this case; it was not practicable to try to contact EJ’s family in order to obtain their authorisation.
Hence this application to the High Court for a declaration that a tissue sample could be released for testing. Naturally Cobb J exercised his discretion in CM’s favour, particularly in view of the fact that her request only arose
because she undertook an act of great humanity in attempting to save EJ’s life. … I am conscious that if this testing were not to be undertaken, CM would live for the foreseeable future in a state of profoundly anxious uncertainty as whether she had contracted a serious, life-threatening illness. This 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. I also bear in mind that CM herself is suffering the harmful side-effects of the antiretroviral medication.
The happy outcome of this otherwise bizarrely sad little story is that the test results of the samples of EJ’s blood and tissue obtained at post mortem examination turned out to be negative.
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