This was an application brought by way of originating summons under the inherent jurisdiction for a declaration that it was lawful to take and test samples of blood and tissue from a deceased person (EJ). The application was made by CM, a doctor, who whilst off duty performed emergency first aid in the street on EJ, a woman who had fallen from a nearby building. During the resuscitative efforts, CM’s hands had become covered with EJ’s blood. CM noticed that she had a number of abrasions on her hands and was anxious about the risk of being infected with a blood-borne disease from the deceased. CM wished to establish whether there was any risk that she had been contaminated by any serious blood-borne illness, which could be done by testing EJ’s blood or human tissue. The Coroner into whose custody EJ’s body had been placed was contacted and asked for his co-operation in obtaining samples of EJ’s blood or tissue. The Coroner had no free-standing power to permit the sampling of EJ’s blood or tissue for this purpose but had no objection to the proposed course.
The application was heard urgently by Mr Justice Cobb whose judgment is reported at  EWHC 1680 (Fam). He noted that the collection, removal, storage and use of human tissue is governed by the Human Tissue Act 2004, and that in the absence of requisite consent the removal, testing or storing of human tissue would be a criminal offence. The sources of appropriate consent are set out in section 3 of the 2004 Act. Where a person has died, appropriate consent means the deceased’s consent (if in force immediately before death); the consent of a person appointed to deal with the issue of consent in relation to the specific activity; or the consent of a person who stood in a qualifying relationship to the deceased immediately prior to death. Various relatives are listed as falling within the relationship of qualifying person. The Act also provides for the removal, storage and use of human tissue and blood for any purpose associated with the functions of a Coroner. The Judge was satisfied that it was not reasonably practicable to seek the consent of EJ’s parents within the time available but that the relative of EJ (a cousin of her mother) who had been contacted (and who had indicated his agreement to the proposed course of action) was sufficient for the purposes of giving consent, and that this opened the gateway for the exercise of the Court’s discretion under the inherent jurisdiction. Whilst paying high regard to the importance of respecting the integrity of the deceased’s body, the Court took particular account of the fact that CM’s application only arose because she undertook an act of great humanity in attempting to save EJ’s life and that if the testing were not to be undertaken CM would live for the foreseeable future in a state of profoundly serious uncertainty which would affect both her personal and her professional life. The Judge had little hesitation in granting the relief sought by CM.