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Friday, 3 December, 1999, 11:47 GMT
Organ removal: the legal background
Post mortems are commonplace in UK hospitals

It is becoming increasingly apparent that the removal of organs for post-mortem and other purposes is commonplace in UK hospitals.

What is less clear is whether, in every case, doctors and coroners are observing the letter of the law.

Organ removal for any purpose, be it post mortem examination, research, teaching, or even transplantation, is governed by strict legislation.

The Human Tissue Act (1961) lays down pre-conditions which must be observed before the organs and tissues can be removed.

The key principle is that doctors do not have the power to decide on their whether or not to keep organs, unless the patient is a child who has died after a pregnancy lasting less than 24 weeks.

In other cases, the doctor must have made "reasonable enquiries" to the patient's immediate next of kin to make sure there is no objection, or have authorisation from the local coroner.

Breaking the law

If they do not make these enquiries, and take heed of any objections by the relatives, they are breaking the law, even if the tissue is being removed for post mortems.

However, coroners, in England, Wales, and Northern Ireland, have the power to authorise a special post mortem into a body where there is some doubt as to the cause of death - for example, a death on the operating table.

Deaths on the operating table are investigated
It is up to the coroner whether an inquest - the formal hearing to establish the circumstances of death - is opened as a pre-condition to the post mortem.

Many coroners will merely give consent for the post-mortem, especially as in most cases it will firmly establish cause of death and remove the need for an inquest.

If a coroner authorises a post-mortem, the objections of next of kin have no bearing under law.

However, the coroner's powers extend only to the removal of tissues to ascertain the cause of death.

If the pathologist would like to remove organs for any other purposes, or those not related to establishing the cause of death, then they are not covered by the coroner's authorisation.

If a "coroner's post-mortem" is used as a pretext for the removal of unrelated organs without the necessary enquiries of the relatives being made, then the pathologist is breaking the law.

If the coroner instructs the pathologist to remove unrelated organs, he or she is acting outside strict coroner's rules.

Dr John Gilberthorpe, a medico-legal advisor with the Medical Defence Union, which helps doctors tackle legal and ethical matters, said: "These are the legal requirements, but good practice dictates that hospitals should be seeking the explicit consent of relatives for such things."

In Scotland, the procurator fiscal performs much the same function as the coroner, albeit with slightly wider powers.

The storm over organ retention, particularly those of babies who have died in hospital, has led the Royal College of Pathologists to begin developing guidelines on the ethical treatment of former patients and their relatives.

This will stress the need to keep relatives informed, return the organs as swiftly as possible following post mortem, and to obtain explicit, written consent to the removal of organs for research or teaching purposes
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See also:
03 Dec 99 |  Health
Children's organs 'stripped wholesale'
03 Dec 99 |  Health
Organ stripping: The reaction
07 Oct 99 |  Health
Child organ stockpile prompts inquiry

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