The two key judgments in the Nationwide Retained Organs Group litigation (NOGL) (2004) led to a shake-up of the law surrounding organ donation, the consequences of which are beginning to emerge.
The NOGL judgments were important in two respects: they clarified the law in relation to postmortems and they brought into sharp relief the issue of litigation costs, especially in group litigation where the litigation is not ‘owned’ by individual litigants whose stake in it is generally insignificant, but by the lawyers running the case.
The consequences for medical and legal practice are potentially far-reaching and have led to important changes in the law.
By 2002 many questions were being asked about the legal and ethical issues arising from the practice of histological examination of tissue samples taken at postmortems after the discovery of extraordinary practices at Alder Hey Hospital. The legal questions were answered by the trial of three lead cases in the NOGL which confirmed the legal propositions that: there is no property in a body; the personal representatives have a better right to possession of a body than anyone else, for the purpose of arranging its lawful disposal by burial or cremation; and where skill has been applied to body parts they become the property of the person who exercised that skill, for example, pathological specimens dissected and preserved as histological blocks and slides.
Much of this was clear before these claims were brought. However, the NOGL also clarified the rights of relatives in relation to the conducting of postmortems. The court said that the correct interpretation of the Human Tissue Act 1961, which required the hospital to ascertain if anyone close to the deceased objected to a so-called ‘hospital postmortem’, amounted to a requirement to obtain informed consent. Therefore, the key issue in these claims was not so much what the pathologists did, but whether their clinical colleagues had obtained valid consent from the deceaseds’ relatives. This required them to explain exactly what happened at a postmortem, something that was beyond their knowledge in most cases.
Since the NOGL, the practice around obtaining consent for postmortems has been tightened up, with lengthy and detailed forms to be completed by the recently bereaved following detailed discussion with a doctor about what a postmortem entails. The Human Tissue Act 2004 has reinforced the need for informed consent by imposing sanctions on those who fail to obtain it when and how they should.
The emerging concept of ‘donation’ underpinning the legislation has not led to widespread use of donor cards or advance decisions about what people want to happen to their bodies after death. A recoil from past practices seems to have generated an unwillingness to donate organs for transplant, or bodies and organs for medical research and teaching future generations of doctors. The burden on the recently bereaved to make difficult and emotive decisions in the immediate aftermath of death is too much, especially when doctors are reluctant to broach the subject or to embark on the required lengthy consent form. The one NOGL lead case where the deceased left a completed Donor Card was definitive. If more of us communicated our wishes clearly in advance it would make it easier for those left behind, while ensuring we supported our favoured causes for the benefit of future generations.
So will there be more work for our non-contentious colleagues while litigation costs continue to be eroded? The NOGL cost-capping judgment (2003) made a significant impact on the costs aspirations of the NOGL claimants’ lawyers. The costs cap can be a valuable and effective tool to contain the costs spent by one publicly funded body defending claims funded by another public body, where the claimants have no real stake in the litigation because their lawyers run it for them. In cases of this nature, where many claimants say that their primary aim from the litigation is not money, or not only money, it may encourage lawyers to come up with more creative solutions that include some non-fiscal features. This may have the effect of curtailing the gladiatorial contest and promote a tighter focus on what really matters to the claimants.
There is no reason in principle why costs capping should not be used more widely as part of the armoury of alternative dispute resolution mechanisms, to bring the parties to their senses and to the negotiating table.
The recent decision against a law firm disallowing a revised costs estimate and enforcing the original estimate with the standard 15 per cent margin of error is but another pressure on litigators to recognise that their wares are more costly than the public are willing to pay, and they rarely achieve what the clients really want. In the NOGL a package that recognised the claimants’ wishes for the future may have gone some way towards healing their rift with the medical profession while ensuring that another 2,400 claims were not litigated individually through the courts at prohibitive expense.
Julie Austin is a partner at Hempsons Solicitors