Whose right is it anyway? The duties owed to a deceased and to surviving family members when dealing with a corpse: Brennan v City of Bradford Metropolitan District Council and Leeds Teaching Hospitals NHS Trust [2021] 1 WLUK 429

Davey, Tina and Mead, David (2022) Whose right is it anyway? The duties owed to a deceased and to surviving family members when dealing with a corpse: Brennan v City of Bradford Metropolitan District Council and Leeds Teaching Hospitals NHS Trust [2021] 1 WLUK 429. Medical Law Review, 30 (1). pp. 137-149. ISSN 0967-0742

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Abstract

This commentary considers the case of Brennan, in which surviving family members successfully brought a Human Rights Act 1998 (HRA) claim against a hospital and a council for the way in which they both treated a body post-mortem. Their failure to freeze it led to such a state of decomposition that it was unfit for viewing. The family argued this constituted an unjustified interference with their rights to family and private life. After a review of Strasbourg case law, the Leeds County Court found for them and awarded them damages under section 8 of the HRA. This commentary evaluates both the Strasbourg law and the way it was utilised and interpreted domestically. While agreeing with the outcome, the authors conclude that the Strasbourg case law does not line up four square—and instead they suggest that a different approach, accepting the legitimacy of a claim based on ‘memory-securing’, is warranted on the facts. The commentary also questions whether the court was correct in seeing the rights reposed in the surviving family, and offers the view that greater coherence to the law might be achieved if we conceive of the survivors as the vehicle for the exercise of rights by the deceased.

Item Type:	Article
Uncontrolled Keywords:	article 8,death,dignity,harm,post-mortem,private and family life,rights,law,medicine (miscellaneous) ,/dk/atira/pure/subjectarea/asjc/3300/3308
Faculty \ School:	Faculty of Social Sciences > School of Law
UEA Research Groups:	Faculty of Social Sciences > Research Groups > Media, Information Technology and Intellectual Property Law Faculty of Social Sciences > Research Groups > Human Rights and Public Protest
Related URLs:	http://www.scopus.com/inward/record.url?...
Depositing User:	LivePure Connector
Date Deposited:	24 Aug 2021 00:18
Last Modified:	19 Aug 2023 01:38
URI:	https://ueaeprints.uea.ac.uk/id/eprint/81176
DOI:	10.1093/medlaw/fwab029

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