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Family Law

The leading authority on all aspects of family law

19 JUN 2013

INHERENT JURISDICTION/ HUMAN TISSUE ACT 2004: CM v Executor of the Estate of EJ (Deceased) and Her Majesty’s Coroner for the Southern District of London [2013] EWHC 1680 (Fam)

(Family Division, Cobb J, 14 June 2013)

The applicant, a medical consultant and professor, while driving came across the body of a woman lying motionless on a pavement, who was later found to have fallen from a nearby building. The doctor performed emergency first aid but despite her efforts and those of the paramedics the woman was pronounced dead.

After attending the body and washing the deceased's blood from her hands she found a number of abrasions to her own skin. She undertook a course of prophylactic antiretroviral medication, due to the risk of contracting a blood-borne disease from the deceased, from which she had suffered significant, unpleasant short-term side effects. The doctor sought to establish whether she was at risk of contracting any serious blood-borne diseases by testing the deceased's blood. The Coroner concluded that he had no objections to testing being carried out although he had no free-standing power to permit testing.

During the police investigation it was established that the deceased was a foreign national with only one relative living in the UK who was her mother's cousin. When contacted she informed the police that the parents had not yet been informed but that she would offer her consent to testing on their behalf. The doctor sought a declaration under the inherent jurisdiction of the High Court that the taking of samples and testing would be lawful.

It was not reasonably practicable to seek the consent of the parents of the deceased within the time available. The parents were currently unaware of their daughter's death and there were no other relatives who would be considered as qualifying persons within the terms of the Human Tissue Act 2004.

Consideration was given to the high importance to be placed on respecting the integrity of the deceased's body but also of the doctor's act of great humanity in administering first aid and the relative's sincere appreciation of that act. If testing were not carried out the doctor would live for the foreseeable future in a state of profound anxious uncertainty as to whether she had contracted a serious, life-threatening illness. Declarations as to the lawfulness of removing samples and carrying out testing were granted. 


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