On January 2nd (2023), a story broke in the media regarding a an out-of-court settlement between Hampshire hospitals NHS foundation trust and Caroline Murray. The payment related to the failure by that trust to properly store the deceased body of Murray’s husband, Paul, who had died on 20th November. As a result of an alleged failure to move the body to freezer (as opposed to refrigerator) storage within 30 days of death (see: HTA guidance on body storage) the body had decomposed to such an extent that it was not deemed to be ‘viewable’.
The Murray case followed the decision in the case of Brennan and others v (1) City of Bradford Metropolitan District Council (2) Leeds Teaching Hospitals NHS Trust 1 WLUK 429, which concerned a similar case of a deceased body (this time of a young woman named Emily Whelan) being rendered unviewable following a failure to store it properly. The case (the judgement is very interested and a recommended read but a summary of the issues can be found in this article) found that the Article 8 Right to Family and Private Life had been infringed. The reasoning in reaching this conclusion can be summarised as: allowing the body to decompose in this way violated the dignity of the deceased. That does not itself trigger Article 8, but rather the family were victims because the failure to store the body properly and resultant decomposition constituted a failure to treat Emily’s body with dignity and respect. This is the first of at least two blogs (hopefully!) in which I reflect on the issue and importance of ‘viewability’.
My purpose in this first blog is not to debate the merits of that decision (on this, see, for example: Megan Griffiths, Davy and Mead) but to explore the way in which law and regulation are used in establishing what makes a body ‘viewable’. It will be no surprise to learn that there is no neat answer to this. Instead, we are left to rely (once again) on interpretation and local context.
HTA Code B Post-Mortem Examinations Standards and Guidance sets out the standards to be met for an establishment to gain a licence for post-mortem examinations (to be interpreted broadly as activities relating to the deceased body, not only autopsies). There are four key areas to the licensing standards. These are: Consent (C), Governance and Quality Systems (GQ), Traceability (T), and Premises, Facilities and Equipment (PFE). In the current context we are concerned with two particular standards:
On the storage of bodies:
PFE2(a) sets out that: ‘Storage arrangements ensure the dignity of the deceased.’
PFE2(c) requires: ‘Storage for long-term storage of bodies and bariatric bodies is sufficient to meet needs.’
The licencing standards are accompanied by guidelines. These indicate how the HTA consider it possible to meet with the standards, but do not require that they be met in these ways. Whilst this means that it is up to the local context to decide how to meet with the standards, it is still helpful to explore the way that the HTA recommend meeting the standards. Thus, their guidance on PFE2(c) states that:
‘There should be sufficient frozen storage for the long-term storage of bodies; the HTA advises that bodies should be moved into frozen storage after 30 days in refrigerated storage if there is no indication they are soon to be released or further examined, or before, depending on the condition of the body. Bodies in long-term storage should be checked regularly; this should include confirmation of their identity and the reason for their continued storage.’
This 30 day standard itself is based on ‘advice from members of the HTA’s Histopathology Working Group’ but is just guidance and subject to local interpretation and conditions. Mortuaries are also required to have procedures in place to regularly check the condition of the body; this may impact how long refrigeration is appropriate and provides an audit trail in the event of disquiet of the bereaved upon viewing.
Elsewhere in the HTA Guidance we find specific reference to viewing of deceased bodies. For example, GQ1(c) sets out that establishments must demonstrate: ‘Procedures on body storage prevent practices that disregard the dignity of the deceased.’
The Guidance explain that ‘The family’s permission should be obtained for any ‘cosmetic’ adjustments or other invasive procedures prior to release of bodies, for example, sewing the deceased’s mouth to close it or the removal of a pacemaker. It is also good practice to discuss with the family any condition that may cause them distress, for example when viewing or preparing the body for burial, such as oedema, skin slippage or signs of decomposition.’
Mechanisms are also required to ensure that the correct body is prepared for viewing (through requiring three identifiers and so on (see TA1 (c)).
We can see that the overall standard in GQ1(c) link body storage to dignity of the deceased, and that in turn the Guidance links this to both storage in a manner which preserves the body and the appearance of the body more generally.
What then does this mean for whether a body is viewable? The report of the pathologists in Brennan was that ‘There is a great deal of variation in practice, based on the subjective views of individual mortuary managers about what families find acceptable.’(para 70d). In both cases above, the family were informed that the body was not ‘viewable’ and so it was never tested whether they agreed. However, facts from both cases suggest that the bodies were, prior to release, allowed to progress to a state of advanced decomposition. My understanding from was that, in these cases, this had the effect of the bodies no longer being recognisable as the deceased.
The appearance of a body often matters to the bereaved as the body is an important representation of the now deceased person. Yet what we see in these cases, which reflects the HTA’s approach, is a recognition that treatment is linked to appearance and that, arguably, dignified, and respectful treatment can be reflected in the way that a deceased body is presented. In expected deaths, once transferred to their care, we might expect a funeral home to not only ensure that the body is stored appropriately but also to offer services such as embalming and the application of cosmetics to the body (and face) to retain desired appearance.
With consent, some mortuaries may offer to make some cosmetic alterations too. However, it would be more common for them to concentrate on reconstruction – both in the sense of post autopsy closing the body and potentially, where a body is damaged, more significant procedures to restore a semblance of the physical appearance of the now deceased person (note that there will be limits to what can be done before an autopsy in order to preserve ‘evidence’ relating to the cause of death). These all facilitate viewability by making the appearance of the body acceptable.
My gut is that this case would have failed should the administrative failings of the mortuaries not been found. As such, allowing a body to be viewed when in a state of advanced decomposition would not necessarily violate Article 8 – for example if the body been received in that condition. Thus, the ‘law’ in these cases was applied in a very limited context of major process failings. The cases therefore tell us little about what makes a body viewable in practice (and I note that in these cases that decision was not left to the families) – this will be the subject of ‘part 2’, to follow.
I would like to finish by posing several important questions for later exploration:
- The HTA require ‘sufficient’ freezer (as opposed to refrigerator) storage to facilitate storage, but what if this isn’t available. Contingency additional storage solutions typically offer refrigeration only.
- How does this map onto periods of excess death, or indeed disaster? And what of the role of others involved in death care i.e. if the funeral directors also don’t have capacity and so refuse to collect the dead?
- Who makes the decision about whether a body is viewable and what are the consequences of this?
- How does appearance map onto dignity, and does context affect this?
These are big questions and there will be no easy answers. But they are also important ones. In addressing them I propose to work with, and draw on, the experiences of those who make these decisions. Their voices will therefore shape the next blog on this topic.