Collecting the body

Disclaimer

The information here is about collecting a body from a hospital. The same information applies to any other place, such as a hospice, nursing home, care home, children’s home, foster parents, prison, former workplace or anywhere else. You must decide whether or not to check, that all of the details below are entirely accurate, before deciding what to do. In the last 20 years, no-one has proven any of these details to be wrong, but that is not a guarantee that everything below is correct. If any hospital staff, coroners or anyone else claims that something below is wrong, inaccurate, and incomplete or misleading, insist that they provide the proof, in a note or letter giving precise legal references. If they are experts in their own field, they will have no difficulty providing you with that information, in writing and without any delay.

Note

This information is about the law in England & Wales. A few legal references are given, which may look like car registration numbers. Ignore them unless anyone asks you for evidence, to prove the accuracy of one or more points.

Warning

If you need to take the body of a friend or relative home, immediately after their death in a NHS hospital, try to do so before mortuary staff become involved. The reason is outlined below.

It is criminal offence under common law, to prevent someone entitled to “lawful control” from collecting a body. The law demands that full “control” be handed over immediately, whether or not any documents have been issued for any relevant purpose. It is illegal to demand that they first do something, such as pay a bill, prove that they have obtained one or more documents for a funeral to take place or have done anything else, (R v Fox 1841 114 ER 96; R v Scott 1842 114 ER 97; Williams v Williams 1882 51 LJ Ch 388).

Anyone who hides a body from the person attempting to take lawful control could be prosecuted for preventing a burial or cremation, even though that was never their intention (R v Hunter et al 1974 LR QB 95).

Paul Matthews (now coroner for the City of London and a professor of law responsible for the relevant text in Halsbury’s Laws of England) stated in a law journal as long ago as 1983, that it might be difficult to sue, if someone uses reasonable force to collect a body.

Frontline hospital staff could be prosecuted, if they obey unlawful instructions, regardless of who gives those instructions. Legal action could be taken against NHS staff if they obey any formal instructions, even if issued in the name of Her Majesty the Queen and those turn out to be unlawful, (1867 Foster -v- Dodd and Another LR 3 QB 67-77 Ex Ch).

If the body is not handed over and the police and Crown Prosecution Service take legal action, a fine or prison sentence could follow. For this reason I feel it necessary to elaborate on the shortcomings of the NHS, and make some suggestions for improvement.

A body must not be exposed, either naked in public or to deliberately shock anyone. However, there is no legal requirement to hide a body from view.

When a child dies whilst in the care of the local authority, it only retains powers if, “the parents cannot be found or are unable to exercise their rights” (Court of Appeal 27.03.1991 R v Gwynedd CC 1992 ALL LR 317). The local authority cannot impose preconditions on parents and hospitals have no greater powers in dealing with the bodies of children or adults.

The Royal College of Nursing agreed that it and the British Association for Accident & Emergency Medicine, made a fundamental error on law, by wrongly claiming in an otherwise excellent report, that hospitals legally own bodies, (‘Bereavement Care In A&E Departments’ 1995:25 – see corrections in Nursing Times 11.09.1996:24 and 02.10.1996:27). No person and no organisation can “own” a body immediately after a death.

Hospitals which design their own body collection form, must take considerable care, not to breach any aspect of relevant law. For example, any demand that some document be produced before a body can be collected, might be regarded by a court, as an illegal precondition. National NHS policy for almost 40 years, starting from 1955 states that hospital staff should not ask to see “green forms” from registrars of births and deaths (HM(55)30 & HM(72)41). The Alice Barker Trust and I is certain, that demanding to see a “green form” or any other document, before releasing a body, would almost certainly be illegal, no matter how NHS or other policies may be worded. Such policies, whether national or local, must not give unlawful guidance or unlawful instructions.

There is no law which requires that undertakers be used for any purpose. It would be illegal to insist that undertakers must be used, to collect bodies from hospitals or anywhere else.

The Department of Health (DoH) has long been aware of concerns about NHS staff breaking the law. The spread of the problem is like an infectious disease throughout NHS hospitals, but now that the problem has been drawn to the attention of Parliament maybe the DoH will quickly bring an abrupt end to encouraging criminality, opposed to kicking the issue into the long grass. If not, the question is, whether the police and Crown Prosecution Service will prosecute the Secretary of State for Health?

Stephen Dorrell was the Health Secretary at the time of the national scandal over the illegal retention of children’s body parts in NHS hospitals. On BBC TV Question Time on the 02 June 2011, he mentioned that Prof. Sir Ian Kennedy had said that:

“The real scandal is not that no-one knew. The real scandal was that everyone knew and no-one did anything about it”.

With that in mind, why have the full lessons of that scandal not been learnt? Why are more and more NHS hospitals breaking criminal law by obstructing the collection of bodies? Why are more and more acting oppressively towards those who are newly bereaved? Oppressive is how the criminal action was described by a judge – see 1842 case above under ‘Court Cases’.

Who can collect a body?

I provide here a Body Collection form which may assist those wishing to collect a body and have obstacles placed in their way. That also mentions the collection of property, as damaged clothes worn at the time of an unexpected death, may be very important to close relatives and friends.

The person who decides what can and cannot be done with a body at the time of death, is the person who has the greatest right to take “lawful control” and they rank in this order:-

(a) a coroner if the death was unnatural, accidental, a result of poisoning, violence, an industrial disease, in prison, police custody or any circumstances requiring an inquest. When none of those circumstances apply, case law suggests that a coroner cannot take control when the cause of death is merely “unknown” and they have reasonable cause to suspect that the death was natural. If a coroner gets involved and later discovers that the death was purely and simply natural, their powers stop immediately;

(b) the person responsible for dealing with the Will of an adult who has died. That person may be referred to by different people as an executor (“ex-ek-yoo-tor” or “egg-zek-yoo-tor”), personal representative or administrator;

(c) the nearest relative;

(d) if none of the above apply, then anyone who intends to arrange and pay for a funeral;

(e) if the person died in a building belonging to someone else and none of the above apply, the “householder” where the person died, which could be a hospital, hospice, care home and so on;

(f) the local authority if no-one and no organisation takes “lawful control” or the person with lawful control, does not have the funds to pay for a funeral or they fail to do anything lawful with the body or abandon the body. It has yet to be tested in the courts, as to whether or not a local authority could pass their bill to a “householder” if they decline to take responsibility. In this connection, a Scottish case in 1953 is often mentioned but it did not explicitly consider the “householder” question, (Secretary of State for Scotland -v- Fife County Council). The local authority may claim back expenses, if the person who died left money or property.

It is a criminal offence, to prevent the immediate collection of a body, by the person who makes known that they have “lawful control”. They do not need to use those words or produce any documents. It is enough that they say who they are. Hospital staff cannot act as judge and jury. If someone uses deception to collect a body, they would be answerable to the courts. They would not be answerable to hospital staff.

It is most common for the nearest relative to claim “lawful control”. However, they would not have control, if at that very moment in time, a coroner or person mentioned under (b) above, had already said that they had taken “lawful control”. If no such decision has been taken, the body would be under the “lawful control” of the nearest relative. If they collect the body and later, a coroner has to be involved or the person mentioned in (b) decides to take “lawful control”, the nearest relative would have to allow the person who ranks above them to take control.

Two related court cases in 1841 and 1842, (mentioned above), prove that it is a criminal offence, to say that a body cannot be collected, unless something is done beforehand. In that case payment of a bill had been demanded. The same principle appears to apply if the production of any document is first demanded or anything else is demanded, e.g. that funeral arrangements first be made. Another way to think of this is to imagine what would happen in perfectly ordinary circumstances, if a child minder or school teacher refused to allow a parent to collect a child, unless a bill is first paid or a document of some sort is produced. In addition to long established law, hospital staff should stick like glue to health principles. Those demand that staff give urgent priority, to meeting emergency emotional needs. One of the most obvious emergency needs, may be to take the body home or to some other place. All hospitals should ensure that can be done, through one openly friendly, welcoming and knowledgeable member of staff.

If the cause of every death had to be known with total accuracy, doctors responsible for treatments up until the time of deaths could not complete medical certificates, about causes of deaths, because the reasons they give are often wrong. That has been proven by examinations carried out by pathologists. When a coroner may need to be consulted and has to decide whether they have “reasonable cause to suspect” that the death may not have been natural, they do not have control, until they make a decision to take control, e.g. hospital staff cannot prevent the collection of the body, just in case a coroner may later decide to take control. Hospital staff cannot behave as though they have more powers than a coroner, even for a few minutes or hours. If the coroner does take control, they must agree to the body being collected, when it is no longer needed to investigate the cause of any death and no longer needed as evidence about the cause of any death. Most agree to collections within a day or two, as most of their investigations just prove that deaths were natural. The most skilled coroners prove they have learnt from experience, so are less likely to intrude unnecessarily and are less likely to arrange unnecessary medical tests.

Never collect a body directly from a mortuary

Bereaved friends and relatives can be expected to feel very intimidated, not only by the unintended consequences of the body-ownership nonsense but also the incredibly strange settings of mortuaries. They can be very intimidating. They have been described by the eminent Scottish Professor Derrick Pounder, as “production-line abattoirs”, (national news 04 January 2011). The DoH has yet to advise that friends and relatives should never be expected to visit a mortuary, in order to collect a body. They should collect it from a room which looks as though it could be in anyone’s home and without having to walk down long, dismal and lifeless corridors. That is all the more important, if hospitals begin to help with the move towards more home deaths. Mortuary staff could play a valuable part, in helping to develop that new approach, in a way which joins up public services, with relatives using mortuaries for short periods, i.e. both delivering and collecting bodies.

Those who are newly bereaved are likely to feel intimidated if they have to deal with uneducated hospital staff, who cannot know if guidance from anyone or any organisation is deeply flawed. It is the uneducated and unskilled, who stick like glue to guidance and “We have always done it this way” routines. Those may be stale, harmful, inflexible and unlawful or illegal. A typical first line of defence is, “We must release the right body to the right person”. That is often said in a tone which sounds as though a request has been made to be given the wrong body! Hospital staff must be capable of handing over the correct body without delay or precondition, unless a coroner has already taken legal control. Uneducated staff do feel threatened, if they cannot stick to an inflexible routine, which can never be an excuse for breaking the law or the adoption of psychologically harmful practices.

Most of the information included in this section of the site has been provided by the Alice Barker Trust. Any errors are my own. This page was updated on November 5th 2013.