Nurses encounter the death of patients as part of their role. Patients continue find it difficult to discuss their wishes for the disposal of their remains and seldom understand the legal framework that regulates what happens to their bodies after death. This can result in the wishes of the person being ignored. Nurses are well placed to ensure that patients and their relatives are properly informed about how to ensure that arrangements for the disposal of the body comply with the wishes of the patient.
Death
There is no statutory definition of death (Grubb et al, 2010). Generally, the Triad of Bichat (Griffith and Tengnah, 2008), which defines death as ‘the failure of the body as an integrated system associated with the irreversible loss of circulation, respiration and innervation’ is used to determine whether a person has died. Advances in medicine and mechanical ventilation have led to the courts accepting in evidence that a person is also considered dead when there is death of the brain stem (Re A (1992))
The administrative system for confirming death still relies heavily on the opinion of a doctor. The general approach of the law is best summed up by the then Chief Justice Lord Lane, in the case of R v Malcherek & Steel [1981]:
‘Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead then the courts will accept that the patient is dead.’
In law a person is dead when a doctor says so. Such a system requires checks and balances in place to prevent wrongdoing. Therefore, there is a duty on the registered medical practitioner attending the patient during his or her last illness to issue a medical certificate of cause of death called an MCCD (Births and Deaths Registration Act 1953 s 22(1)). If the doctor cannot issue or fully complete the requirements of this certificate the matter will be referred to the coroner (Griffith and Tengnah, 2008).
Disposal of the body
Once the registrar is satisfied that the requirements of the Births and Deaths Registration Act 1953 have been met the death can be registered and a disposal certificate issued. It is unlawful to dispose of a body without a disposal certificate or coroners order (Births and Deaths Registration Act 1926).
Body as property
Unlike houses or other buildings and smaller possessions or chattels that can bequeathed in a will, our bodies do not have the status of property and cannot be passed on by way of gift. The legal rule developed from the case of R v Haynes (1614), who was indicted for stealing the winding sheets from dead bodies. The court held that a corpse could not own property (the winding sheet), but this was later misread as there being no property in a corpse.
This interpretation has persisted at common law for over 150 years in cases such as Bourne v Norwich Crematorium Ltd [1967], where the local inspector of taxes denied tax relief on a new crematorium chimney stack because it was not processing goods.
The implication of the rule is that little or no heed need be taken of the wishes of the deceased in terms of disposing of their body after death (Williams v Williams (1882)).
An exception for work and skill
Generally, in law there is no property in a corpse. However, the courts have allowed an exception to this principle in cases where the body or body parts have been subjected to work or skill that has resulted in the body acquiring attributes that differentiate it from a ‘mere corpse’ (Doodewood v Spence (1908).
In R v Kelly [1998], an artist was convicted of theft together with an accomplice who had removed body parts from the Royal College of Surgeons. Kelly argued that body parts could not be stolen because they were not property, but the Court of Appeal held that because work and skill had been applied in preserving the body parts they had become property, and Kelly was guilty of theft.
Methods of disposal
Historically, the method of disposal of a human body after death was by means of burial (Kemp v Wickes (1809)). Even to this day every inhabitant of a parish and every person dying within the parish has a common law right to be buried in the parish burial ground (Hughes v Lloyd (1888)).
The other common method of disposal is cremation, which has been allowed in law since the late 19th century following the case of the R v Price (1884). The place, manner and conditions of cremation are now regulated by the Cremation Acts of 1902 and 1952. It is an offence to effect any cremation outside the provisions of these statutes. A person does not have a legal right to be cremated.
Although cremation and burial are common means of disposal, other methods are not forbidden.
Right of disposal of a body
The ‘no property in a corpse’ rule severely restricts the deceased's ability to direct the method of disposal of their body. One method to overcome this limitation is by way of conditional gift. That is a gift or bequest in the deceased's will that is made on condition that the wishes of testator are carried out. Frances Power Cobbe had a dread of being buried alive. She made a conditional gift in her will of some fifty guineas to the person who brought a surgeon to her funeral with a similar amount to the surgeon if he severed her throat with a scalpel just before she was interred (Cobbe, 1894).
The main drawback of a gift is that it can be declined. Lord Avebury, Liberal Party peer and Buddhist, gifted his body to science for dissection and those remains to Battersea dogs home for consumption (Hutchinson, 2014). The gift was declined.
Duty of disposal
While maintaining the no property in a corpse rule the law recognises that there is a duty on certain individuals to arrange for the disposal of the deceased. The law accepts that to discharge this duty the individual has the right to lawful possession of the body. Williams v Williams (1882) established that the person with greatest claim to lawful possession of the body is the executor of the deceased's will, even where the deceased has left instructions to the contrary.
The close relatives of the deceased do not have a greater claim to lawful possession than the executor. In Rees v Hughes [1946] the Court of Appeal held that the duty to bury a wife is that of her executor and not her husband. In Grandison v Nembhard (1989), the court held that the executor was entitled to dispose of the deceased's body, and had discretion as to the mode and place of disposal. The court would not interfere with the exercise of the discretion, even though the deceased's daughter objected to her father being buried in the Caribbean. The distress and inconvenience to his daughter or the extra expense involved justified the court interfering with the executor carrying out the deceased's wishes.
Where the deceased has died intestate—that is, without making a will—then the person authorised to administer the estate is entitled to lawful possession (Holtham v Arnold (1986)).
Where there is no executor or administrator of the deceased's estate, the court has placed the duty of disposal on the owner of the property where the person died (R v Feist (1858)), or on the parents of an unmarried child (R v Gwynedd County Council ex p B (1991)), or other surviving relatives who are entitled to administer the estate under The Non-Contentious Probate Rules 1987.
The final duty of disposal falls to the local authority where the body lies. The Public Health (Control of Diseases) Act 1984, section 46(1) provides that it is the duty of every local authority to cremate or bury a person who has died or been found dead in their area, where it appears that no suitable arrangements have been made for the disposal of the body. The authority is entitled to recover its expenses from the deceased's estate, or a spouse or parent.
The 1984 Act and its regulation allow the ministers of health to make special provisions for the disposal of bodies. During this current COVID-19 crisis, ministers have said that it might be necessary to use the power to allow for communal burial and cremation, instead of the traditional single-body funeral (Middleton, 2020).
Conclusion
By having a working knowledge of the law relating to death and the body as property nurses are in a position to empower patients and relatives to plan properly for their death by providing information about the methods of disposal and how best to have patients' wishes heeded.