Heather represented A and another family member, where it had been discovered that the Met Police had ordered a second post-mortem on the body of A’s husband in 2001. Evidence was available that a specific police officer had informed a coroner’s officer that the pathologist had indicated that he would need to retain the deceased’s heart. The police officer undertook to approach the family to obtain their non-objection to this. This had not happened. The pathologist who carried out the second post-mortem also failed personally to establish that there was non-objection, pursuant to the now-repealed Human Tissue Act 1961. A was unaware that the heart had been retained until 2015, when it was discovered following an audit at the hospital where it had been stored for 14 years. For religious reasons, the grave had to be reopened in order for the heart to be buried together with the body. A suffered psychological harm as a consequence of discovering what had occurred as well as having to go through the trauma of a second burial.
It was argued that having specifically undertaken to approach the family to establish non-objection prior to the second post-mortem on the matter of the identified need to retain the heart, the police had actively assumed a duty of care to the Claimants. They could not then rely on applying the principles set out by the Supreme Court in the recent case of Robinson v CC West Yorkshire 2018 UKSC 4 – that when exercising their core functions police are not normally under a duty of care to protect individuals from a danger of injury which the police themselves have not created. It would be foreseeable that the Claimants would likely have indicated non-objection to temporary retention of organs for the purpose of establishing cause of death, but if, as here for religious reasons, it was necessary for the organs to be returned to the body prior to burial, they would have postponed the burial until that had been accomplished. In consequence, it was foreseeable that a close relative discovering 14 years later that the body had been buried without the heart would suffer psychological harm.
The Met Police accepted the Claimants’ Part 36 Offers and settled the claim without admission of liability.
Related barristers: Heather Beckett