Organisations holding human remains urged to review policies amid UK regulatory changes

Determining an organisation’s rights to retain, use or even ultimately dispose of human material is a complex area, involving the interplay of legislation, policy guidance and, importantly, ethical considerations.

Recent changes to Human Tissue Authority guidance and ongoing government review have prompted more organisations which hold human remains, such as hospitals and clinics, museums, universities, galleries and holders of private collections, to examine the legal basis for such holdings.

Updated Human Tissue Authority guidance

For the purposes of the Human Tissue Act 2004, human remains will fall within one of three categories: 

• remains which were over 100 years old as at the date on which the Act came into force (1 September 2006) and which are excluded from the Act’s provisions entirely; 
• remains which are less than 100 years old, but which were in the possession of an organisation prior to the Act coming into force.  These are referred to as ‘existing holdings’ and are exempt from some, but not all provisions of the Act; and 
• all other remains.   

There have been several events in recent years which have raised concerns about ensuring dignity for the dead and for human remains. Examples include the recent prosecution of a funeral director in Hull for poor quality and undignified handling of human remains and the Ockenden review of maternity services at Nottingham University Hospital, which identified poor standards of mortuary practice.

In response, the Human Tissue Authority has provided updated guidance on the dignity and care of deceased people. Whilst the guidance is voluntary, it is indicative of the general move towards greater scrutiny and expectations of practice in relation to the dead and human remains.

UK government policy

The Department for Culture, Media and Sport (DCMS) provided guidance in 2005 on good practice in management of storage, conservation and collections management on human remains.

This recommends that public display of human remains should only take place if a museum believes that the display makes a material contribution to a particular interpretation and that this could not be made effectively in another way. The term ‘museum’ has a broad definition in the guidance and so may be applicable to organisations which are not themselves museums but do have items on display.

The UK government recently announced a review and update of this guidance. The government said that the legal, ethical and moral conversations over the treatment and care of human remains, especially in museum collections, has significantly evolved since the guidance was first issued. While the guidance serves as a “strong foundational framework”, the government highlighted the need for national standards to be updated to reflect contemporary best practice – this is particularly relevant to the display and return of ancestral remains.

Aligned with this, a Private Member’s Bill, the Human Remains (Prohibition of Sale, Purchase and Advertising) Bill, is passing through parliament. The bill intends to place limitations on commercialisation of human remains, with holders of human remains likely to be subject to increased scrutiny.

Considerations for holders of human remains

Any organisation dealing with or holding human remains, whether of historical interest or recent material held for scientific purposes, is likely to face new legislation and guidance, with a two-pronged approach from the official regulator and from the government.

Now is a good time for affected organisations to review their holdings, assess whether there is still justification for retention and use and confirm that compliant policies and procedures are in place.

Pinsent Masons recently assisted Queen Mary University on clearly establishing its rights to retain the skeleton of Joseph Merrick, whose life was the inspiration for the David Lynch film ‘The Elephant Man’.

This work involved forensic legal work in tracking down 19^th century legislation, including the then current Anatomy Act, and the rights of Professor Frederick Treves as licensed anatomist of the London Hospital at the time of Merrick’s death and post-mortem, through to demonstrating the organisations excellent compliance with more recent guidance on respecting dignity of human remains.