LAW REPORT: Family had no right to dead woman's brain

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Dobson v North Tyneside Health Authority; Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Peter Gibson, Lord Justice Thorpe) 26 June 1996

A corpse belonged to no one. The next of kin of a person who had died of a brain tumour had no right of possession in the deceased's brain after it had been removed for the purposes of an autopsy, fixed in paraffin and stored in a hospital. They were therefore unable to sue the hospital for subsequently disposing of the brain.

The Court of Appeal dismissed an appeal by the plaintiffs, Brenda Dobson, suing as the administratrix of the estate of Deborah Dobson, deceased, and as the next friend of the deceased's infant son, Andrew Steven Dobson, against the decision of Judge Harkins, at Newcastle upon Tyne County Court on 7 August 1995, affirming that of District Judge Marley, who had struck out their claim against the second defendant, Newcastle Health Authority, for damages for its failure to preserve the deceased's brain.

The brain had been removed for the purposes of a postmortem examination following the deceased's death from brain tumours. The rest of the body was returned to the family and was buried. Dr Perry, who conducted the autopsy, intended to carry out a histological examination of the tumours but this was not done and the brain, preserved in paraffin, was delivered to Newcastle General Hospital for storage.

When, nearly two years later, the plaintiffs' solicitors asked for the histology relating to the tumours, they were told that the brain had been disposed of. This deprived the plaintiffs of evidence which might assist them in suing the first defendant, North Tyneside General Hospital, for medical negligence in failing to diagnose the tumours at a time when such diagnosis might have saved the deceased's life or ameliorated her pain with radiotherapy.

Richard Hone (Hindle Campbell, North Shields) for the plaintiffs; Michael Curwen (Samuel Phillips & Co, Newcastle upon Tyne) for the second defendant.

Lord Justice Peter Gibson said that in the present state of the English authorities there was no property in a corpse: see Williams v Willaims (1880) 20 Ch D 659 at 662-663 and Clerk & Lindsell on Torts (17th edn, 1995, para 13-50). However that bare statement needed some qualification.

First, the executors or administrators or other persons charged by the law with the duty of interring the body had a right to its custody and possession until it was properly buried. In this case there were no executors and no administratrix until long after the body had been buried. If there was no duty, there was no legal right to possession of the corpse.

However, even if that was wrong and the next of kin did have some right to possession of the body, there was no authority that that right was otherwise than for the interment or other proper disposition of the body.

Second, it was said that once a body had undergone a process or other application of human skill, such as stuffing or embalming it could be the subject of property in the ordinary way. Hence it was said that conversion would lie for a skeleton or cadaver used for research or exhibition, and the same went for parts of, and substances produced by, a living person.

In Doodeward v Spence (1908) 6 CLR 406 the plaintiff successfully recovered from the police the preserved still-born foetus of a two-headed child which he had bought and wished to exhibit for gain.

Did this mean that when Dr Perry fixed the brain in paraffin, he thereby transformed it into an item the right to possession of or the property in which belonged to the plaintiffs? His Lordship did not think so. The removal of the brain was lawfully performed during Dr Perry's postmortem examination to determine the cause of the deceased's death. There was nothing to suggest that the actual preservation of the brain after the postmortem was on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or exhibition.

Mr Hone accepted if Dr Perry had disposed of the brain without fixing it in paraffin, the plaintiffs would have had no cause for complaint. His Lordship could not see how the fact that it had been so fixed rendered it an item to possession of which the plaintiffs ever became entitled for interment or some other purpose, still less that they ever acquired the property in it.