#17386 - Human Tissue Article Summaries - Medical Law

HUMAN TISSUE

NOTES:

• So IMPT TO NOTE: no one here is really arguing about the outcome (its clear what the best outcome looks like)

  • They’re arguing over what’s the best legal mechanism to get us there

  • And if you think that the mechanism of property is wrong, you have to say, actually property would generate too many negative outcomes

    • And therefore we should have an alternative

• You CAN’T IGNORE THE LAW PART OF THIS DEBATE

  • HAVE to read Yearworth, if you want to do property approach

  • One way to think about it is: how can I get to this outcome? Is it through trusts? Etc

  • Don’t have your arguments descend into something that’s too wishy-washy about rights!

• So part of the motivation for Yearworth might be the restrictions around psychiatric injury from Alcock

  • The problem is that the floodgate arguments from Alcock just don’t apply here!

  • But unfortunately the Court can’t just carve a new exception to psychiatric injury, so they rely on property rights to circumvent those limitations

  • Remains unclear whether Yearworth was unique on its facts, or will signal the start of a new way of thinking about bodily tissue

Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37

Held

• [29] “The law, as we will see, has to some extent begun to be refined in relation both to a human corpse and to parts of a human corpse ; but it has remained noticeably silent about parts or products of a living human body , probably because, until recently, medical science did not endow them with any value or other significance”

• [60] “These appeals will be allowed. We shall set aside the judge's determination of the third and fourth issues before him; substitute a determination that the sperm was the property of the men for the purposes of their claims in tort and, as amended, in bailment and that they are in law capable of recovering damages for psychiatric injury and/or mental distress in bailment; and remit the remaining issues in the actions for determination in the county court, indeed (so we provisionally consider) by the same judge

  • NOTE: BOTH their claims in negligence and in bailment were allowed!!

Skene – Yearworth Case Note

1. Introduction

• In JONATHAN YEARWORTH and others v North Bristol NHS Trust, the Court of Appeal for England and Wales held that six men who had deposited their semen for freezing before undertaking cancer treatment were entitled to be compensated when it was negligently destroyed.

  • The Court said that the men had deposited the semen solely for their benefit and that constituted a bailment. That was a significant decision because the law in England and Wales, as in other common law countries, had previously not recognised that people from whom bodily material had been removed (‘ originators ’ ) could have proprietary rights in their bodies or bodily material.

  • Those things were not capable of being ‘ property ’ (as stated in the Australian case Doodeward v Spence and many earlier cases in the UK).

  • No one could legally ‘ own ’ them, subject to the ‘Doodeward exception’, which enabled other people to obtain legal rights to possess, control, or even sell such material, by undertaking ‘work and skill’ or conferring ‘different attributes’ on it.

• The bailment analysis in Yearworth provided a right to the originators to be compensated for the negligent loss of their bodily material without consideration of other matters

2. Yearworth: The Facts

• The plaintiffs in Yearworth were six men who had been diagnosed with cancer. Before starting chemotherapy, they deposited their semen at the Southmead Hospital in Bristol.

  • The defendant, the North Bristol NHS Trust, was responsible for that hospital. As stated in the judgments, the men’s semen (which contained their sperm) was produced and stored ‘ for their possible later use ’ [3], with some men authorising later use of the semen for ‘ treating a named partner ’ [6](b). Each man signed a consent form for his semen to be stored and the consent form stated that he could withdraw his consent or vary the terms of the consent at any time before his sperm was used [6](b).

  • When the men sought to retrieve their stored semen after their chemotherapy, they found that it had been irretrievably damaged after ‘the amount of liquid nitrogen in the tanks in which it was stored fell below the requisite level’ [8].

  • Five of the men alleged they had suffered a psychiatric injury as well as mental distress [10], as they were ‘ already in a vulnerable condition ’ [9].

  • The defendants accepted that the semen had been destroyed as a result of their negligence

  • However, it was acknowledged by the Court in the judgment that their claims had ‘limitations or complications ’ and ‘ their worth in damages [would be] relatively small’ [12].

1. Claim for ‘Personal Injury’

• The 5 men who claimed to have suffered psychiatric injury argued that they had been caused ‘personal injury’ as well as ‘damage to their property’

  • The personal injury claim was quickly rejected

  • The Court held ‘it would be a fiction to hold that damage to a substance generated by a person ’s body, inflicted after its removal for storage purposes, constituted a bodily or “personal injury” to him ’ [23].

    • i.e. harm to bodily material removed from the body cannot be personal injury

2. Claim for ‘Damage to Property’

• The Court accepted that the deposit of the semen for later use constituted a bailment.

  • The unit in which it had been deposited was liable ‘ under the law of bailment, as well as that of tort ’ [50]; the arrangements were ‘ closely akin to contracts ’ [57]; and ‘ modest recovery ’ could be awarded for ‘ mental distress ’ against a gratuitous bailee in such circumstances [59].

• The references to the law of bailment as the basis of the men’s right to compensation have important legal implications.

  • In order to succeed in a claim arising from a bailment of their semen, the men had to establish first, that the stored semen was property; and secondly, that they had either ‘ legal ownership ’ or a ‘ possessory title ’ to that property, which the Court ‘ for convenience ’ elided as ‘ ownership ’ [25].

• The categorisation of the semen as property was thus the vital first step.

  • In its path was the long-established ‘ Doodeward principle ’ that, as a general rule, there is no property in a human body or bodily material.

  • However, since the early 20^th century, many exceptional circumstances have been recognised in which bodily material has been held to be subject to proprietary rights, some of which were discussed by the court.

• Moreover the court criticised the Doodeward principle itself. The Court said that it was ‘ not content to see the common law … founded upon [a] principle … which was devised as an exception to a principle, itself of exceptional character, relating to the ownership of a human corpse ’ [45](d).

  • The principle was ‘ not entirely logical ’ and ‘ we prefer to rest our conclusions on a broader basis ’ [45](d), (e).”

• The Court of Appeal held, on the facts of the case, that the men did have ‘ ownership of the sperm which they had ejaculated ’ (emphasis added).

  • The term ‘ ownership ’ was used loosely.

  • It might mean that the men had the best title or ‘ all such rights as by law are capable of being exercised over that type of property against all persons including the right to possession of the property and any proceeds of its sale ’ .

  • However, the CA elided ownership with ‘ possessory title ’ and the basis for its decision in favour of the men was that they had the possessory title.

• Moreover, the CA said the men had “ownership of [their sperm] for the purposes of their claims in tort”

  • i.e. a right to possession which would found a claim in bailment if their sperm was negligently destroyed

  • They would presumably also have a claim in conversion, since this can be based on a right to possession (against anyone but the owner)

• In deciding that there was a bailment of the stored semen, the Court considered several points

• 1) First, the men deposited their semen on the basis that they retained control of it.

  • ‘The sole object of their ejaculation was that, in certain events, it might later be used for their benefit’ [45](f)(ii).

  • The men had ‘ negative control ’ over the use of their sperm – ie the right ‘ to direct that the sperm be not used in a certain way ’ [45](f)(ii); and they could ‘ require the destruction of the sperm ’ , which is a ‘ fundamental feature of ownership ’ [45](f)(iii).

  • It did not matter that their right to ‘ direct ’ the use of the sperm was limited by legislation regarding the use of stored semen in reproductive treatment: ‘ there are numerous statutes which limit a person’s ability to use his property ’ [45](f)(ii).

• 2) Secondly, all parties intended that the semen would be available to the men to use later , either for their own treatment or possibly for use by someone else with their authority

  • The main point was that the semen was intended for later use

  • Even if their intention was for the semen to be stored and used by another person, it could still be a bailment

  • The intention for later use negates any possible intention of abandonment

• 3) Thirdly, not only was it the men’s intention for the semen to be available for later use, it was accepted on that basis by the storing party

  • In other words, the stored semen could not be regarded as ‘ abandoned tissue ’ , even if semen might be so regarded in other circumstances.

  • Counsel for the men differentiated stored semen from other ‘ products of the body which are removed from it with a view to their being abandoned – such as cut...