17 Human tissue

17.1
17.1.1

INTRODUCTION
The specic issue in relation to the use of human tissue is: Who can do what with which tissue? Broadly the position is set out in Figure 3 (p. 203). We can see how the Human Tissue Act 2005 encompasses the removal, storage and use of tissue taken from deceased individuals, and the storage and use of relevant material taken from living individuals. The general principle within the Human Tissue Act 2004 is that, to remain within the law, a clear purpose must be dened for the removal, use or storage of tissue and that consent must exist in relation to that purpose. For the purposes of the Human Tissue Act 2004 human tissue includes whole bodies, organs, and pieces of tissue including DNA. However, it excludes gametes and embryos outside the body these are governed by Human Fertilisation and Embryology Act 1990. Part of the reason for distinguishing between a living and deceased person as the source of the tissue is that a relatively complex but effective legal structure for consent already exists in relation to living patients. Thus, removal of tissue from a living person must be justied by the consent of the individual (see Chapters 35) or have some other legal justication. The Human Tissue Act 2004 draws a distinction between complete human bodies and (relevant) tissue removed from human bodies. In Figure 3 (p. 203), storage and use are listed under living human bodies. This is for two reasons. First to remind oneself that legal structures exist to justify both the lawful detention of living individuals and their use for medical research. And, secondly, to demonstrate how the boundary between people and human tissue (no longer a person) shapes the legal landscape.

17.1.2

17.1.3

17.1.4

17.1.5

201

MEDICAL LAW HANDBOOK 17.1.6

The heart of the philosophical problem lies around the concept of property and its relation to the human body. We will consider this interesting idea rst. We will then go on to examine the common law position before moving to examine the main provisions of the Human Tissue Act 2004.

Usefully the conceptual property issues and the practical consent framework are clearly separate. Therefore it is not necessary for the reader to work through the property aspects and basic common law (Sections 17.217.4) to make sense of the practical machinery of the consent framework provided by the Human Tissue Act 2004 (see Section 18).

17.2
17.2.1

CONSENT AND PROPERTY RIGHTS

An approach based on consent as an expression of autonomy (i.e. consent as an expression of the interest in self-determination) tends to maximise the power the donor can exercise over the tissue before it has lawfully entered someone elses possession. By comparison, a proprietal right in a piece of tissue grants continuing power over the tissue even after it moves out of their possession. To counter this weakness of consent the Human Tissue Act 2004 extends the use of consent beyond an expression of autonomy by adding a role for consent as authorisation. However, even consent as authorisation does not amount to the same thing as owning something in the possession of another. (For examples see Sections 18.6.218.6.5 and 18.8.118.8.3).1 The importance of this distinction between using consent as authorisation and regarding donated human tissue as property is perhaps best demonstrated by the facts of the following Californian case where failure of consent was a ground of action against the physician but could not operate against an innocent third party.

17.2.2

17.2.3

See Herring J, Chau PL. My body, your body, our bodies. Med Law Rev. 2007; 15(1): 3461. 202

Human tissue (excluding gametes and embryos outside the body)

Sources of tissue?

Deceased

Living

Nature of tissue?

Human body

Relevant material

Relevant material

Human body

Action?

Storage

Use

HUMAN TISSUE

Removal of relevant material Storage Use Storage Use

Storage

Use

Removal of relevant material

203
s.1(c) HTA 2005 s.1(1)(d) HTA 2005 s.1(1)(f) HTA 2005 s.1(1)(d) HTA 2005 (research exceptions: s.1(7)) s.1(1)(c) HTA 2005 s.1(1)(c) HTA 2005 s.1(1)(g) HTA 2005 s.1(10)(a) HTA 2005

Sch 1 Part 1 purposes

s.1(1)(a) HTA 2005

s.1(1)(b) HTA 2005

Anatomical examination

s.1(2) HTA 2005

s.1(3) HTA 2005

s.1(1)(f) HTA 2005 (research exceptions: s.1(8))

Common law + other legislation

Sch 1 Part 2 purposes

s.1(1)(a) HTA 2005

s.1(1)(b) HTA 2005

s.1(10)(b) HTA 2005

Common law + other legislation

Figure 3 General legal framework surrounding human tissue. See Sections 18.1 and 18.3 for denitions.

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Moore v Regents of the University of California (1990) 51 Cal.3d 120, 793 P.2d 479 Sup Ct Cal
D was responsible for Ps care. P underwent splenectomy for hairy cell leukaemia. D obtained Ps consent to therapeutic splenectomy but did not declare any research or nancial interest in the procedure. D utilised the removed splenic cells to create a lucrative T-cell line (the Mo-cell line used in the discovery of HTLV-22). The cell line was patented by D but the rights were then passed to the Regents. P sued D and the Regents for a share of the proceeds of the commercial exploitation on the basis that it was his cells that were the ultimate source of the prots. P made two broad claims: (i) That the cells were taken and used without his consent3, and (ii) That P had a proprietary interest in the cells that should be protected.4 P was forced to make the latter claim because the patent was held by the Regents. They had not breached any requirement for consent. Ps only claim against them was grounded in a proprietary interest in the cells. Held (majority): Ps claim against breach of consent succeeded against D. Ps claim against the Regents failed for lack of property rights vested in P. Ps consent was not fully informed because D had not disclosed the conict of interests nor the potential uses that the tissue was to be put. P had no property claim to the cell line because it was something new created from Ps cells. P could not transform the rights protected by consent into a property right.

17.2.4

Note the subtle but important distinction between: (i) consenting to removal and storage or use of tissue, and (ii) the agreement to transfer property rights.

Kalyanaraman VS, Sarngadharan MG, Robert-Guroff M, et al. A new subtype of human T-cell leukemia virus (HTLV-II) associated with a T-cell variant of hairy cell leukemia. Science. 1982; 218: 5713. The arguments surrounding the claim of breach of duciary duty rests in part on the conict of interests possessed by D. Pursuing these arguments would take us into deep waters that need not be plumbed here. P sued in the tort of conversion. 204

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Transferring property rights is only possible where such rights exist in the rst place. We will, therefore, move now to consider the nature of property rights, in particular how they manifest in relation to human tissue.

17.3
17.3.1

PROPERTY
The idea of property is a rich concept in law. Property is the right to utilise or dispose of something and to exclude others from interfering with that thing. One interesting and important view of the concept of property is that it is not a relationship between a person and a thing, it is a relationship between people about a thing.5 Property is more than a single right, e.g. the right of possession. It must include other rights such as the right to use the thing in certain ways. Thus ownership can be thought of as a bundle of rights.6 Some rights can be exercised against everyone in the world7 (e.g. owning a piece of land) others operate just against one person (e.g. someone from whom you have bought a pen).8 Property can come in distinct flavours like equitable title and ownership at law. Whilst these distinctions are not important here there is an important distinction that lies between ownership and possession. A person can possess something without owning it. Thus it is possible to have physical power over an object by possessing it yet still be bound by the rights of the owner. These concepts are generally comprehensible in relation to things like pens and land. The nature of the thing that is the subject of proprietal rights is also important. Most people can readily grasp that it is possible to own tangible things like pens and land. However, the idea of property also extends to intangible things like inventions and songs or books. Rights to control inventions fall within the law of patents whilst rights to control intellectual creations such as songs or music fall within the law of copyright.

17.3.2

17.3.3

17.3.4

5 6 7 8

Hohfeld WN. Fundamental legal conceptions as applied in judicial reasoning (1919). Ashgate Publishing; 2001. See, for example, Bjrkman B, Hansson SO. Bodily rights and property rights. J Med Ethics. 2006; 32: 20914. Called a right in rem. Called a right in personam. 205

MEDICAL LAW HANDBOOK 17.3.5

Difculty arises when considering the concept of property in relation to the human body. The human body lies on the boundary between a person and a thing. People can own things but not other people. (Before the end of slavery, people could own other people9 but this is no longer true.10) The problem is that death is not a clear marker of the boundary between people and things. The remains of deceased people are accorded a great deal of respect in most societies. Reasons for this include respect for the dignity of the deceased person, respect for the feelings of the bereaved and other sociological reasons. This societal respect prevents a human body from becoming merely a thing capable of ownership at the point of death. It is this view that prevents the body from becoming a potentially commercial object capable of being owned from the moment of death.11 When, or indeed if, it does eventually become something that can be the subject of proprietal rights remains an open legal question.12

17.3.6

17.4
17.4.1

PROPRIETAL RIGHTS AND THE HUMAN BODY

The common law rule is that no one can own a corpse.13,14,15,16,17,18 One consequence is that the deceaseds wishes in relation to the disposal of their body after death are not enforceable at law.19 Another consequence is that a person in possession of a corpse cannot have that possession challenged by an owner. In effect, this enlarges the rights of those who possess human tissue. If someone has unlawfully come into possession of body parts, what happens if there is no owner who can claim them back? In Doodeward v Spence20 the Australian High Court decided that something that cannot be property cannot be stolen. Then, by a majority, it created

17.4.2

9 10 11 12 13 14 15 16 17 18 19 20

Butts v Penny (1677) 2 Levinz. 201; Chambers v Warkhouse (1693) 3 Salk. 140. Smith v Gould (1706) 2 Salk. 666; Shanley v Harvey (1762) 2 Eden 126. Note the lessons learnt from Burke and Hare: http://en.wikipedia.org/wiki/West_Port_ murders. R v Kelly [1998] EWCA Crim 1578, [1998] 3 All ER 741, 749 per Rose LJ. Blackstone W. Commentaries on the Laws of England. Oxford: Clarendon Press; 176569. Book 2, Chapter 28, p. 429. Williams v Williams [1882] 20 Ch D 659. Doodeward v Spence (1908) 6 CLR 406, Aust High Ct. R v Kelly [1998] EWCA Crim 1578, [1998] 3 All ER 741. Exelby v Handyside (1749) 2 East PC 652 (Easts pleas of the Crown of 1803). A B and Others v Leeds Teaching Hospital NHS Trust [2004] EWHC 644. Williams v Williams [1882] 20 Ch D 659. Doodeward v Spence (1908) 6 CLR 406, Aust High Ct. 206

HUMAN TISSUE

an exception to this rule for a body that was not awaiting burial (or cremation). Armed with this exception, the Court looked to decide who had the strongest claim to possession.

Doodeward v Spence (1908) 6 CLR 406, Australian High Ct

Grifth CJ, Barton J, Higgins J The body of a stillborn two-headed baby (sic) was taken and preserved by the attending doctor in 1868. There was no evidence that consent had been obtained from the mother. Upon the death of the doctor in 1870 the preserved body was sold at auction to Ps father. P subsequently acquired the body and placed it upon public display for money. D, the sub-inspector for police, seized the body under warrant and proposed to give it a decent burial. P sought to recovery the body. At the initial trial and upon the rst appeal Ps action was dismissed. P appealed again. Held (2:1): P did have a right of action to recover the body. Grifth CJ: There was no right of property in the dead body of a human being.21 However, this body differed from a body awaiting burial (or cremation) in that it had been preserved for almost 40 years. An action for possession of the body lay at the suit of a person under the duty to bury the corpse.22 D did not have a close relationship with the child and could not demonstrate a legal duty to bury the body. Possession of an unburied body was not itself unlawful provided it was not injurious to: (i) public welfare (ii) public health, or (iii) public decency. P had come into possession of the body in as lawful a manner as was possible. A disturbance of lawful possession, even of a thing that could not be owned, could be remedied at law. Barton J: Agreed with Grifth CJ. He also noted that the decision in relation to possession did not condone public display of the body.

21 22

Exelby v Handyside (1749) 2 East PC 652 (Easts pleas of the Crown of 1803). R v Fox (1841) 2 QBD 246 where a gaoler refused to give up possession of the body of a prisoner to executors. 207

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Higgins J (dissent): Given there was no property in the body, then there was no reason to accept that Ps claim to the body was any stronger than Ds. Therefore D should be allowed to retain the body.

17.4.3

A person with a stronger claim to possess the corpse than the person in current possession can recover the corpse. For example, the executors,23 who have a duty to bury the corpse, have a stronger right to possess the body because of this duty than someone to whom the deceased owed money.22 In Doodeward v Spence24the police ofcer D could not establish that he had a duty to bury the body and so could not override Ps claim to possession on this basis.25 Where the strength of claim of an executor is unclear, the power of disposal remains with the possessor of the corpse. In University Hospital Lewisham NHS Trust v Hamuth26 the body was in the possession of the Hospital. The will of the deceased was in dispute. The executor under the will sought control of the body in order to arrange cremation. Other relatives sought control of the body in order to arrange burial. Given that the strength of the claim of the executor was in question, the power of disposal lay with the Hospital. Note that other people may have claims on a corpse too. 25 For example, a coroner who has a duty to investigate a death27 can claim a still stronger right to possess the corpse in certain circumstances.28 This right is based on the State interest in preserving law and order. Whatever the true position at common law, a corpse or part of a corpse falls within the denition of property within in the Theft Act 196829 if it has acquired different attributes by virtue of the application of skill.30 The effect of this is that possession or control over a body or body parts altered in such a way can amount to the statutory crime of theft.

17.4.4

17.4.5

17.4.6

23 24 25 26 27 28 29 30

Re: Grandison TLR 10 July 1989. Doodeward v Spence (1908) 6 CLR 406, Aust High Ct. See, also, Dobson v North Tyneside Health Authority [1996] 4 All ER 474, CA. [2006] EWHC 1609. s 8 Coroners Act 1988. s 22 Coroners Act 1988. s 4 Theft Act 1968. R v Kelly [1998] EWCA Crim 1578, [1998] 3 All ER 741, 748 per Rose LJ. 208

HUMAN TISSUE

R v Kelly [1998] EWCA Crim 1578, CA

P1 was an artist. P2 worked as a junior technician at the Royal College of Surgeons in London. P2 removed prosections (carefully and skilfully prepared anatomical specimens) for P1 to use in artistic endeavours. P1 undertook to bury the specimens after their use. P1 paid P2 400. Both P1 and P2 were convicted by a jury for stealing the specimens under the Theft Act 1968. They appealed arguing, inter alia, that they could not steal something that could not be owned. Held: The convictions were upheld. The work done on the specimens made them something more than a corpse (or body parts) awaiting burial. This was sufcient to allow the prosections to fall into the very broad denition of property within Section 4 of the Theft Act 1968. As property within the terms of this Act, interference with or possession or control of the prosections could amount to theft. The arguments that the body or body parts: (i) might have been unlawfully held, or (ii) were (or should have been) for burial (or cremation) were not accepted. Note that the jury must have found that there was dishonesty on the part of P1 and P2 in order to have convicted the pair.

17.4.7

In R v Kelly31 the Court built upon the decision in Doodeward v Spence32 by offering a protection to the possessor of human tissue against those who might remove the tissue dishonestly. On the other side of this line is Dobson v North Tyneside Health Authority,33 where making pathological slides of brain tissue in the course of a coroners post-mortem was held to be insufficient to reduce the tissue to property. What further rights might be protected remains a matter for controversy. Until the full gamut of possible rights is explored, the extent to which a human body (or body parts) can amount to property must remain uncertain.

17.4.8

31 32 33

[1998] EWCA Crim 1578. Doodeward v Spence (1908) 6 CLR 406, Aust High Ct. [1996] 4 All ER 474. 209