Death and its immediate aftermath

1  Death and its immediate aftermath

Death is unique … unlike aught else in its certainty and its incidents.1


Death not only marks the cessation of human life; it triggers a complex series of laws around the fate of the dead, and disposal of the physical matter that is left behind.2 Certain legal requirements must be fulfilled before this occurs, involving a number of different institutions and professions. While these are analysed below, defining ‘death’ is the starting point in any discourse involving the law and the dead. However, this is not as straightforward as it might seem.

I.     The legal definition of ‘death’

While life and death are binary concepts, the precise moment at which one ends and the other begins can be hard to determine in a complex multicellular organism like the human body. The transition from living being to corpse is exactly that – and if physical death is a series of discrete yet interlinked biological processes (as opposed to an instantaneous cessation of life), constructing an exact definition is not easy.3 Medical advances mean that we now know with much greater certainty when someone has died; crude techniques that were once used to detect flickering signs of life – the “legendary feather in front of the nose or mirror in front of the mouth”4 – have long since been abandoned.5 However, modern medicine also makes an accurate determination of death imperative in two situations: withdrawal of life-support systems from intensive care patients where certain bodily systems are still functioning, and removal of organs for transplant purposes within a short time of death.6

Contemporary death indices are based on identifiable and assessable medical criteria.7 Like most Western jurisdictions, English law adopts two basic standards.8 The first relies on the permanent cessation of heart and respiratory function – otherwise known as ‘cardiopulmonary death’. The second is known as ‘brain stem death’ and is the accepted medical definition in the relatively small number of cases where an individual is unconscious, unable to breathe spontaneously and has suffered irreversible damage to parts of the brain stem;9 that person’s heartbeat and breathing are being artificially sustained. In these circumstances, a diagnosis of brain stem death serves two vital purposes: physicians will not face criminal liability if a decision is made to remove life-sustaining care or organs are harvested from someone who is clinically dead, while the living are reassured that medical treatment has only ceased because the individual is incapable of recovery and that organs are only removed from deceased donors.

The widespread adoption of the brain stem death standard has proved controversial,10 though Pattinson suggests that this particular definition has a “soothing rhetorical force” by appearing to “facilitate activities that would invite greater challenge if thought to be conducted on the living”.11 Meanwhile shifting and mutable definitions of death are a distinct possibility in the future, as medical science advances further – for example, if dead tissue can be restored by stem cell manipulation,12 transplanting human heads onto donor bodies becomes a reality,13 or if cryogenic freezing results in ‘dead’ subscribers being successfully reanimated in years to come.14

II.   Organ donation

Most organ donation occurs within the brain-stem death setting, given the time-sensitive nature of the procedure. However, harvesting the deceased’s organs not only invokes strict legal requirements under the Human Tissue Act 2004; it also raises complex issues around respect for autonomy where the deceased pledged to donate their organs, and how the law reconciles conflicting rights and deals with objections from surviving relatives.15

III.  Documenting death

Individual deaths trigger compulsory registration requirements, and English law insists that both the fact and the cause of death be recorded.16 As the state’s acknowledgment that someone has died, registration paves the way for disposal of the dead to take place, prevents illicit crimes being concealed and (in the longer-term) provides documentary evidence that allows the deceased’s estate to be wound up. At a national level, registering deaths allows accurate mortality rates to be compiled; statistical analysis then signposts public health trends and allows the government to plan its longerterm resource allocation.

Every death occurring in England and Wales17 must be registered in the sub-district in which death occurred (or in which the deceased’s body was found) within 5 days.18 The person who assumes responsibility for this (usually a member of the deceased’s immediate family) must fall within the list of qualified informants under the Births and Deaths Registration Act 1953,19 and must also provide the necessary documentation – including a medical certificate indicating the cause of death.20 The registrar then issues a certificate of registration,21 which allows the funeral to go ahead.22 However, if a suspicious, violent or otherwise unexplained death has been reported to the coroner,23 registration is dependent on the coroner furnishing subsequent information on the cause of death.24

Given the importance attached to recording deaths and the legal consequences that flow from issuing a registrar’s certificate, it is hardly surprising that non-compliance attracts criminal law offences. For example, in England and Wales, failure to inform the registrar of a death or to provide the relevant information is an offence under s 36 of the 1953 Act,25 while s 35 makes it an offence for a registrar to fail to register a death “without reasonable cause”.26

There are also specific legal requirements around transporting bodies in and out of England and Wales.27 Where an individual died abroad, the registrar for the relevant district within England and Wales must issue an appropriate certificate before disposal of the repatriated remains can occur.28 The coroner may also be involved if death was not due to natural causes.29 If death occurred in England and Wales but the body is being moved else where, this cannot take place unless four days’ notice of the intended removal has been given to the coroner – thus preventing a body being removed before a suspicious or unexplained death can be properly investigated.30

IV.  Suspicious and unexplained deaths: The coroner’s jurisdiction

There are two types of autopsy in England and Wales. The first investigates the deceased’s death in a hospital or clinical setting, and is dependent on consent from the next-of-kin.31 The second occurs under the coronial system, which warrants some form of autopsy for reportable deaths, and symbolises an ongoing connection between the dead and the institutions of the state.32

What follows is an overview of the coroner’s functions and remit, and what happens to the deceased’s body.33

1.    Investigative powers and functions

As in other countries, the coroner’s functions in England and Wales are prescribed by statute, and supplemented by case law where individual decisions are challenged by judicial review. Long-overdue reforms have recently been introduced by the Coroners and Justice Act 2009 and associated regulations,34 the bulk of which came into effect in July 2013.35

Under s 1 of the 2009 Act, the relevant coroner has a duty to investigate if he/she has been made aware that “the body of a deceased person is within that coroner’s area”36 and the coroner has “reason to suspect that: (a) the deceased died a violent or unnatural death, (b) the cause of death is unknown, or (c) the deceased died while in custody or otherwise in state detention”.37 Preliminary inquiries can be carried out, to determine whether there is a duty to investigate; if so, the matter proceeds to the investigation stage – either with or without an inquest. The coroner assumes control from the time the death is reported until the investigation is complete,38 and the medical cause of death established.

An autopsy may be carried out as part of either the preliminary inquiries or the formal investigation. Under s 14, the coroner may decide to order a port-mortem to establish the cause of death or determine whether a duty to investigate arises,39 and has a statutory power to remove the deceased’s body under s 15(1).40 Looking beyond the statute, the coroner also has a common law entitlement to possession of the deceased’s body until the inquiry is complete.41 This is not an unfettered right, but a “limited degree of control over a body for limited purposes”.42 Having been notified of the original decision to investigate the death,43 the deceased’s personal representative or next-of-kin must also be notified of the decision to conduct a post-mortem examination.44 During this time, any possessory rights that the personal repre sentative has in the corpse (through being legally responsible for its dis posal45) are temporarily displaced. Section 47(2) of the 2009 Act also lists a number of “interested persons” to any coronial investigation, most notably:

    (a)  a spouse, civil partner, partner,46 parent, child, brother, sister, grand parent, grandchild, child of a brother or sister, stepfather, stepmother, half-brother or half-sister;

    (b)  a personal representative of the deceased;


    (m)  any other person whom the coroner thinks has a sufficient interest.47

These individuals should be consulted at key stages in the proceedings, and can be legally represented at any inquest.

The fact that neither removal of the body nor the decision to order a postmortem requires the consent of the deceased’s personal representative or surviving relatives is the major distinction between coronial autopsies and their hospital equivalents.48 However, it is also one of the first potential sites of legal conflict involving the dead.

2.    Emotional, religious and cultural objections

The majority of autopsies in England and Wales involve a full internal examination of the deceased’s body.49 Grieving families will often resist such a physically invasive procedure, viewing it as a (further) violation of their loved one’s remains.50 Such ‘emotional’ objections are noted by the coroner, but will not usually displace the strong public interest in ascertaining the cause of death.51 However, more complex issues arise where familial opposition is based on religious and cultural values – an increasingly likely scenario in modern societies with a diversity of belief systems. Cutting the corpse can be seen as an act of desecration, which interferes with the deceased’s passage into the afterlife; there may also be concerns around delayed burial or cremation where this is time-limited because of the deceased’s spiritual beliefs (and those of the bereaved).52 Given the root of these objections and the core values that they embrace, is the coroner’s legislative mandate more susceptible to challenge here?

Like its predecessor, the 2009 Act is silent on the issue, only granting a right of appeal against a decision not to order a post-mortem.53 Objections based on religious or cultural imperatives have been documented between coroners and members of the Jewish and Muslim communities in England and Wales,54 with coroners apparently willing to sanction less invasive postmortem procedures to determine an adequate cause of death.55 However, if there is a need for information that these alternatives cannot provide, a full internal examination is likely – and where the coroner’s decision to order one is challenged, the overriding state interest in investigating suspicious or unexplained deaths tends to prevail.56

Similar trends can be seen elsewhere, despite ostensibly stronger legal safeguards. For example, while a small number of US states have legislation that allows individuals to register religious objections to an autopsy, one can still be performed if there are compelling legal or medical reasons to do so.57 More comprehensive measures exist in Australia where all state legislation contemplates familial objections to a coronial autopsy, with some allowing religious and cultural objections to be lodged as well.58 These provisions do not confer an absolute power of veto; the coroner can proceed despite objections, though a decision to do so can be challenged by the deceased’s next-of-kin.59 The fact that religious and cultural objections can still be overruled has been identified as particularly traumatic for grieving families, and indicative of a wider disconnect between medico-legal constructs of the body as a mere corpse and the connective attachments that the bereaved have towards their dead60 – though one could argue that the practice is as much to do with the public interest in establishing an accurate cause of death. Studies also suggest that relational and religious opposition has resulted in less invasive autopsies being ordered in parts of Australia, though conflicting cultural values have had much less impact on the coronial process to date.61

3.    Releasing the body

In general, the body must be released for burial or cremation “as soon as is reasonably practicable”;62 the coroner cannot retain it for longer than is necessary to discharge any coronial functions,63 and the personal representatives or next-of-kin must be notified if this will exceed 28 days.64 However, the 2009 Act (like its predecessor) is curiously silent on the question of who the body should be released to.

In most cases, the body will be handed over to a funeral director acting on behalf of the person(s) lawfully entitled to possession of the body.65 For adult testate deaths, this is the deceased’s executor; for intestate deaths and those of infants or minors, this is the highest ranking next-of-kin who would be entitled to administer the deceased’s estate (regardless of whether or not there is one to administer). After the spouse or civil partner, the law looks to the deceased’s children, parents and siblings in descending order of entitlement – though cohabiting partners are excluded, and have no legal right to claim the deceased’s remains, despite being “interested persons” under the 2009 Act.66 From the coroner’s perspective, problems will arise where warring factions of the deceased’s family – each with different views on the appropriate funeral arrangements – demand that the body is released to them.67 In Burrows v HM Coroner for Preston,68 the court suggested that coroners should simply apply the designated order of entitlement to decide contested applications, while accepting that there might be circumstances in which this ranking could be varied to allow for human rights arguments and other “special circumstances”.69 However, the source of the coroner’s power to make such a ruling is questionable (in the absence of an express provision in the 2009 Act dealing with competing claims to possession),70 leaving civil courts to resolve the matter if necessary.71 As with other aspects of the coronial process, a decision to release the body to the wrong person is susceptible to judicial review.72

In contrast, a small number of coronial statutes in force elsewhere contain specific provisions on who can apply for release of the deceased’s body alongside an order of entitlement to deal with competing claims. For example, in the Australian state of Victoria, s 48 of the Coroners Act 2008 favours the executor named in the deceased’s will or, failing that, the deceased’s senior next-of-kin in descending order (spouse or domestic partner, followed by adult children, parents and then siblings etc).73

V.    Facilitating disposal: Funeral directors and the funeral industry

Funeral directors perform a vital role in the ritualised disposal of the dead, and surviving relatives74 will usually employ one, even though there is no legal requirement to do so. Acting as an “intermediary between the bereaved and the organizations that furnish the mode of disposal”,75 the funeral director is involved in the process from an early stage – advising on the various bodily disposal options, essential documentation, funeral furnishings and types of ceremony. The funeral director will also take custody of the body – albeit temporarily – to prepare it for disposal.76

From a legal perspective, the rights and responsibilities of the funeral director are governed by contract – either negotiated between the funeral director and the person who orders the funeral, or contained in a pre-paid funeral plan that the deceased arranged while alive.77 Basic contractual warran ties and liabilities apply if issues subsequently arise about inadequate service provision, or non-payment of agreed funeral costs; however, negligent handing of the deceased’s remains by the funeral director or similar ‘wrongful’ acts may result in other forms of civil action.78

1.    Industry regulation and consumer protection

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