It is commonly accepted that there is no property in a dead body. There is however a duty on whoever holds the body to make suitable arrangements for its disposal. The Department of Health has recently released a consultation in relation to this issue in order to provide advice and support to healthcare providers.
The case of Williams v Williams (1882) held that the duty to dispose of a dead body is incumbent on the personal representatives of the deceased. This position has been expanded upon over the years and additional duties have been imposed upon:
- The owner of a household/premises in which the Deceased died. This would include an NHS Trust or any other healthcare premises, where there are no other arrangements made for the Deceased
- The Local Authority for the area in which the body is found. Where there are no suitable arrangements for the disposal of the body, the duty may fall on the Local Authority to cremate or bury the body of any person who has died or been found dead in the Authority’s area
As a consequence of the above, a hospital can be in lawful possession of a dead body and, subject to the claims of others, it can have a duty and a right to make arrangements to dispose of the deceased. This premise was examined in the case of University Hospital Lewisham NHS Trust v Hamuth and others (2006) where there was a dispute between the Deceased’s family and the named personal representative over the validity of the will. It was held by the Court that as the identity of the personal representative would not be settled imminently the Trust had a right to decide on the funeral arrangements.
NHS Trusts may be aware that the Department of Health recently opened a consultation concerning the release of dead bodies from hospitals. The purpose of the consultation relates to the administrative issues and seeks to formalise documentation for the release of dead bodies into the possession of the person(s) who are charged with making arrangements for the funeral.
The consultation was opened as the Department of Health had concerns that some hospitals were causing unnecessary delays in releasing bodies and in turn causing unnecessary distress to the families of the Deceased.
Although no formal research was undertaken on the issue, the Department of Health believed that some NHS Trusts required family members to present specific forms to the bereavement service staff in order for a body to be released. Such documentation included the “Green Form” issued by the register of deaths or the “Burial Order” issued by a coroner.
There is however no legal requirement for a hospital to receive a copy of the Green Form or burial order prior to releasing the body, but it is of course the responsibility of the hospital to put in place processes for the safe and correct release of bodies to family members or funeral directors.
In order to improve and provide a more consistent approach, a draft release form has been prepared by the Department of Health for the release of bodies. It is hoped that the form will eventually provide a template that may be adopted by hospitals and the Department has requested comments on their draft form.