Brennan and others v (1) City of Bradford Metropolitan District Council (2) Leeds Teaching Hospitals NHS Trust [2021]: healthcare litigation and human rights

In this post, Megan Griffiths looks at the recent case of Brennan and others v (1) City of Bradford Metropolitan District Council (2) Leeds Teaching Hospitals NHS Trust [2021]1 WLUK 429, a very sad case concerning the decomposition of a woman’s body in a hospital mortuary. The blog also comments on the relevance of human rights claims to clinical practice more generally.

A few weeks ago, the media reported the outcome of a case relating to the preservation of the body of Emily Whelan in the mortuary of a Leeds hospital, the judgment of which has recently become available. Given the unusual nature of this case, and the shocking factual circumstances which led to it, it is perhaps unsurprising that there was public interest in reporting the decision. For clinical negligence practitioners in particular, however, this case is a useful example of how human rights claims can be relevant to the context of errors in a medical setting.

The background to the claim

The sad facts of this case concern the body of Emily Whelan, who passed away on 08.11.16. The deceased was taken to the mortuary at the Leeds General Infirmary (for which the Second Defendant was responsible) and her body was kept under refrigeration until 23.12.16. On 23.12.16, the deceased was moved to Bradford Public Mortuary (for which the First Defendant was responsible), where her body was kept under refrigeration (apart from a further post-mortem on 8 October 2017) until 05.12.17. On that date, the deceased’s body was moved to deep-freeze storage. She was eventually buried on 11.05.18.

Unfortunately, refrigeration does not stall decomposition, but instead slows it down; the only way to bring decomposition close to a halt is by freezing. The central allegation was that by refrigerating rather than freezing the deceased’s body, there was very bad decomposition, and thus her body had not been treated with dignity and respect. The family members were sadly aware of the extent of the decomposition of Ms Whelan’s body and they suffered psychological damage as a result.

It was in these circumstances that five members of Ms Whelan’s family brought a claim under the Human Rights Act 1998. They alleged that Article 8(1) of the European Convention on Human Rights (“ECHR”) had been infringed, and that this infringement had caused them psychological damage. The claimants also sought a declaration of this infringement pursuant to section 8 of the Human Right Act (“HRA”) 1998.

Article 8 of the ECHR reads as follows:

Article 8(1): “everyone has the right to respect for his private and family life, his home and his correspondence.”

Article 8(2): there shall be no interference by a public body with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”

The First Defendant admitted that Article 8(1) was engaged and that it had been breached. However, the Second Defendant defended the claim to trial, and it was on that basis that the matter came before the court. The Second Defendant’s case was as follows:

  1. It denied that the deceased’s body decomposed in their care to such extent that it was unfit for viewing;
  2. It denied that Article 8 was engaged or interfered with; or
  3. Alternatively, Article 8 was engaged and interfered with, and such interference was justified.

The judgment

HIs Honour Judge Saffman found for the Claimants.

Firstly, the judge found that, on the balance of probabilities, the deceased’s body was in advanced stages of decomposition by 23.12.16, at the end of its time in the Second Defendant’s care [para 75].

Secondly, the judge found that, as a matter of law, Article 8 of the ECHR did cover the treatment of the body of a loved one, as in this case. Although there was sparse precedent, the precedent did support this: “all the cases involve[d] issues as to the dignity to be accorded to a deceased person. This case is no different” [para 99]. Further, the claimants’ relationship with Ms Whelan made them direct victims of Article 8. (By way of background, victimhood in this context is “the person or persons directly or indirectly affected by the alleged violation … [including] any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end” (ECHR Practical Guide on Admissibility Criteria, para 17)). The judge found that the definition of victim did not turn on “the closeness of the relationship in terms of blood” [para 102 and 122].

It followed from the finding of fact and the engagement of Article 8 that Article 8 was breached [para 104 to 106].

Further, the judge found that the justifications for interference with Article 8(1) found in Article 8(2) were “on specific limited grounds”, none of which were engaged in this case [para 111].

The judge then considered how this unlawful interference should sound in damages/ remedy. He made the declaration sought by the Claimants, and also made an award necessary for just satisfaction in the case, totalling £7,500 across all five Claimants [para 154]. The size of the award was modest in accordance with the precedents for such awards, and also took into account the fact that the Claimants had already received pecuniary compensation for the events.

 Human rights in clinical negligence litigation

On its facts, Brennan is of narrow applicability as the circumstances are highly unusual. Additionally, it is a county court decision so will not have binding authority on future cases. Within that narrow applicability though, it is clear from this judgment that mortuaries must freeze rather than refrigerate bodies in order to comply with the HRA. Further, it is suggested that the facts of this case indicate the need to communicate candidly and honestly with family members to reduce distress and psychological harm. Meeting the statutory duty of candour (The Health and Social Care Act 2008 (Regulated Activities) Regulations as amended, Reg. 20) should have this effect.

Overall, this case is a reminder of how human rights can be engaged in a medical setting, particularly in cases where it might not be clear how a tortious duty of care would exist. In ABC v St George’s Healthcare NHS Trust [2020] EWHC 455 (QB), the HRA claim ran parallel to the tortious claim, so it did not add a great deal. However, in some cases, such as Brennan, it may well be that, although there is no clear tortious claim to pursue, there is a claim to pursue under human rights law instead.

If one is considering or defending a claim on the basis of a breach of human rights, it is suggested that key considerations should include: 

  • Who has brought the claim and do they satisfy the definition of a “victim” such that they have standing to do so?
  • Is the right actually engaged?
  • Does one of the right’s reasonable justifications apply (for example Article 8(2))? Are the justifications an exhaustive list or open ended?
  • What remedy is likely to be awarded, taking into account section 8 of the HRA and in particular whether additional damages are necessary to afford “just satisfaction” to the claimant?

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