In 1974, Birmingham coroner George Billington heard disturbing evidence about an operation to remove a man's kidneys that had gone horribly wrong. Michael McEldowney, who had been presumed dead after a road accident and taken to surgery, was actually alive. An inquest exposed a long-held public fear, namely that a patient who was perceived to be a potential source of organs might not be adequately cared for. Billington promised a full public inquiry and summoned a large number of witnesses to his court, hoping to learn how this situation had arisen and, in the public interest, prevent its recurrence. By the time the inquest concluded, he was left with lingering concerns that surgeons might be too quickly giving up hope of saving a donor's life.
The Birmingham inquest became a watershed in the modern history of organ transplantation, for it highlighted that doctors could have divergent interests in a patient's body, and resulted in renewed efforts to articulate standards for physicians to follow in testing for death. By 1974 coroners were important participants in the transplant endeavor, as the bodies of patients whose deaths were reportable to them—as a result of accidents, violence, or unknown causes—had become integral to the system of organ supply under the Human Tissue Act, 1961. That statute required a coroner's consent to be sought before organs or tissues were cut from a body, lest such removal destroy evidence about the cause of death that a coroner might require during an investigation. Transplant surgeons, chafing under this requirement, sought to overturn it and clashed with coroners who delayed or prohibited access to bodies.
This article examines how organ transplantation affected the coroner's role in England, where, by the early 1970s the 229 coroners in England and Wales investigated over a third of the deaths reported to them.Footnote 1 By focusing on the connections between coroners, transplant surgeons, and the latters' advocates in the Department of Health (from 1968 to 1988, known as the Department of Health and Social Security), I show how the burgeoning practice of transplantation challenged long-held conceptions of the coroner's position. Archival research spanning the first fifteen years following the passage of human tissue legislation reveals how, despite the best efforts of transplant surgeons and health civil servants to limit coroners' interventions on behalf of the public interest, coroners took this aspect of their role seriously by refusing to allow particular surgeons whom they considered untrustworthy to remove organs to transplant. The article contributes to the historiographies of both the English coronial system and of organ transplants. First, it extends the examination of the coroner's role by focusing on how body parts were removed from corpses for the new “therapeutic” purpose of transferring them to the body of an ailing stranger. Secondly, it addresses a gap in the literature on the history of transplantation by focusing on the important role coroners played in making organs available, or refusing to do so.
Ian Burney has examined the role and work of coroners during the nineteenth and early twentieth centuries, charting an emphasis on the production of reliable knowledge about death, as coroners increasingly utilized medical expertise at the inquiries they held. The inquest was a tribunal that guarded “the interests of the people,” as had been articulated by the early nineteenth-century coroner Dr. Thomas Wakley.Footnote 2 This meant that in addition to determining the causes and contexts of a particular death, it was the coroner's role to direct public attention to the conduct of “persons in authority who had been and wished to continue to be free from observation and control.”Footnote 3 Inquests thus provided a forum in which suspicions about certain deaths could be aired and allayed. As Elizabeth Hallam, Jenny Hockey, and Glennys Howarth argue, during an inquest the coroner hears diverse accounts of evidence about the cause of a death, and he or she issues recommendations for changes that may prevent similar events.Footnote 4
Historians have illuminated how English coroners and their juries acted upon this aspect of their role.Footnote 5 During the early modern period coroners played a major part in shifting the understanding of suicide from being an act of criminal felo de se to non compos mentis.Footnote 6 In the nineteenth century, they were instrumental in publicizing cases of child murder.Footnote 7 For late-Victorian Britain, James Stark has examined how interventionist a coroner and his jury could be in the public interest, as they recommended preventive measures to guard wool sorters against the occupational hazard of anthrax.Footnote 8
This concern for the public interest could make coroners unpopular with doctors when inquests investigated deaths that had resulted from medical treatment. London doctors disliked the coroner John Troutbeck, believing he either did not pay them sufficient heed or criticized them at inquests following deaths that occurred during or soon after surgical operations.Footnote 9 As Ian Burney explains, the inquest's public function proved to be a particular point of contention between medical professionals and the coroners who inquired into deaths associated with anesthesia, for these inquests brought unwelcome publicity to anesthetists at a time when the cause of such a death was uncertain.Footnote 10 Held in public, an inquest could damage reputations and, doctors argued, so alarm people as to have the effect of retarding medical progress.Footnote 11 Nevertheless, proposals to divert the more public investigation of deaths due to anesthesia into scientific inquiries that were held behind closed doors ultimately failed, not least, Burney argues, because even the strongest critics of such inquests recognized the “explanatory and neutralizing potential of public inquiry.”Footnote 12 A coroner's inquest assured the public that these deaths would be investigated, which bolstered confidence in the medical profession and its institutions.Footnote 13 Similarly, by the mid-twentieth century the Westminster coroner Dr. Gavin Thurston argued in Coroner's Practice that a “fundamental principle” of inquests was that they be held in public and in the presence of the press as a “safeguard” to ensure “that justice is seen to be done.”Footnote 14 Thurston, who would become critical to the supply of organs during the 1960s and 1970s, maintained that the English coroner was ideally placed to perform this protective role, for he was an “entirely independent functionary” answerable to no one other than the public, and representing no other interest than the public's.Footnote 15
DEATH AND ORGAN TRANSPLANTS: “A NATURAL SOURCE OF DONOR MATERIAL”
During the early 1960s, amazingly it seemed, parts could be cut from one person's body and sewn into another. As Susan Lederer writes, people received news of such surgery with both wonder and concern.Footnote 16 Organ transplantation required a shift in how the human body was understood: it was now considered a container of “spare parts” that could and should be removed and put to good use in someone else. As Britain's pioneering kidney transplant surgeon Michael Woodruff explained, “[l]ike more ordinary mechanical contrivances,” people “broke down” when a particular part of their bodies failed. Soon, he considered, it might be possible for those broken parts to be replaced with organs that functioned better. Writing three years after the world's first lung transplant, performed by James Hardy in Mississippi in 1963 on a patient who died eighteen days after the operation, Woodruff suggested that “respiratory cripples” might soon benefit from such an operation.Footnote 17 Despite Woodruff's discussion of lung transplants, at this time the kidney was the “‘prototype’ of the ‘spare part’ organ,” grafted with increasing short- and medium-term success.Footnote 18 One could be procured from a close living relative or from a donor within an hour of her or his death, that event being assessed in the conventional way with reference to the cessation of heartbeat and respiration.
Until 1961 in Britain, only eyes could legally be taken from a corpse for “therapeutic” use, under the Corneal Grafting Act, 1952. Banks of eyes, from which corneas could be cut for reuse, had already been established in the United States and England.Footnote 19 However, kidneys were increasingly being transplanted, requiring a new statute to place these operations on a legal footing. The Human Tissue Act authorized the removal of organs and tissues from a dead person's body for therapeutic purposes, medical education, and research, subject to certain conditions. A duly qualified medical practitioner must first have personally examined the body and declared life to be “extinct.” Subsequently, if there was no evidence that the dead person had donated their organs, the person in “lawful possession” of the corpse (usually a hospital official) must inquire of relatives whether the person had, in life, objected to such use of his or her remains, or whether, following the death, a family member did. In addition, if the person's death fell into a category that must be reported to a coroner, the statute required a coroner's consent before any organs were removed.
Under this statute, coroners quickly became essential to the provision of organs to transplant because many were taken from patients whose deaths had resulted from severe head injuries. The patients whose bodies contained the most desirable parts were those who, having suffered such an injury, lay in a hospital, attached to a ventilating machine. They were considered to be a “natural source of donor material” because their deaths could be managed in a way that was timely for a transplant operation.Footnote 20 Transplantation did not create the phenomenon medical anthropologist Margaret Lock has called “the new death,” one determined with reference to the brain rather than the heart, but it did complicate the assessment of what would later be called brain death because it was crucial to act quickly on the body.Footnote 21 But were people whose brains did not function yet whose hearts continued to beat alive or dead—or did they exist in a “twilight” state between the two?Footnote 22
Death had traditionally been assessed with reference to heartbeat and respiration. Speaking at a 1966 symposium on the ethics and legality of transplantation, kidney transplant surgeon and Cambridge professor Roy Calne confidently asserted that the traditional diagnosis of death was made when a heart had stopped beating for five minutes. Although there came a time when it was in a dying person's interests to “turn off the switch” of a respirator, if organ removal was to follow Calne emphasized that it was important to know that the switch was being turned off in the interests of the dying patient rather than “because one is looking for a kidney.”Footnote 23 Two years later, with the advent of vital organ transplants, the Journal of the American Medical Association noted that the crucial question had become, “When does one dare to relieve [someone] of his heart or his liver, structures which are essential to life and of which he has no duplicates,” unlike a kidney? For if such an organ was taken before death “can be said to have occurred by the strictest criteria that one can employ, murder has been done.”Footnote 24 By 1968, heart transplants were causing fraught public and professional debates about how deaths were determined and by whom. Although doctors had for years been quietly turning off respirators when they deemed a patient's case to be “hopeless,”Footnote 25 transplant surgery brought about an urgent and wider consideration of the question of death by focusing on whose interests might drive its assessment: those of the patient or those of a potential organ recipient. As Michael Woodruff stated, when organ procurement was being planned, the doctor making the decision about such a death was inevitably aware that a transplant team awaited the organs.Footnote 26
Stuart Youngner contends that transplantation evoked “deeply held fears about medical science” and challenged understandings of the proper treatment of dying patients.Footnote 27 In practice, England's coroners differed markedly in their willingness to permit organ removal, some because they were concerned that cooperating in the provision of organs might involve them in legal and ethical controversies about when a patient attached to a ventilating machine could be considered dead; others because they found that particular transplant surgeons ignored the Human Tissue Act's consent requirements. By the late 1960s, trust in the medical profession had already been eroded following the news that unethical experiments were being performed on hospital patients in Britain and the United States.Footnote 28 Ayesha Nathoo's close examination of the role of the media during England's first heart transplant operations in 1968 and 1969 shows that reportage further destabilized confidence in the profession, leading to a moratorium on heart transplants in Britain after 1969.Footnote 29 Until the 1980s, professional conduct continued to be a matter doctors policed for themselves, despite increasing media and other protest against this practice.Footnote 30
Transplant operations also caused rifts within the medical profession, between those who transplanted particular organs, as well as between transplant surgeons and hospital doctors. Kidney transplant surgeons criticized heart transplanters, charging that their controversial operations during 1968 and 1969 were threatening the wider transplant enterprise. In addition, hospital doctors, upon whom surgeons relied to notify them when they had a potential donor in their care, were becoming reluctant to do so lest they find themselves embroiled in a messy dispute.Footnote 31 There was a lack of agreement within the profession that someone whose heart was beating could be dead. Some doctors argued it was particularly difficult to decide on the status of “head cases,” to know for certain that a brain had died. Given this, and the speed with which organs were being removed, what protections could be set in place to prevent a casual or wrong assessment that death had occurred? How should brain activity or its absence be measured? And should transplant surgeons be involved in deciding that a patient whose organs they needed was dead?
ENGLISH CORONERS AND THE HUMAN TISSUE ACT
The Human Tissue Act's requirement that a coroner's permission be sought prior to organ removal in cases of reportable death was a safeguard to ensure that coroners were “in no way fettered or defeated” in holding their inquiries.Footnote 32 But the necessity to seek a coroner's permission posed a difficulty for surgeons who wished to procure organs, for coroners differed in interpreting their role under the legislation: some willingly cooperated while others did so conditionally or not at all, and there was little surgeons could do about this given coroners' vaunted independence.
When the Human Tissue Act was debated in Parliament during 1960 and 1961, members of the public wrote to the Health Ministry to express their fear that the statute lacked safeguards to protect against the removal of organs from patients who were erroneously assessed as dead. Civil servants dismissed these concerns. They acknowledged that some conditions could “simulate” death, but they believed there was only a remote possibility that organs or tissue would be removed from a living person, since “the very first step in the procedure” to do so would show that they were alive. Further, civil servants emphasized the protective role coroners would play in cases of reportable death.Footnote 33
These reassurances did not appear so compelling seven years later, in 1968, with the advent of vital organ transplants in Britain. While corneas, skin, bone, and kidneys could be removed from bodies pronounced extinct in the conventional way, when the person's heart and respiration had ceased, speed was of the essence in cutting out a heart, liver, or lungs if these were to remain viable for use in another person's body. A heart must be removed at the moment of death, and this made the requirement that both relatives and, for reportable deaths, a coroner, first be consulted a matter of concern. Transplant surgeons therefore sought to overturn the Human Tissue Act in favor of a regime of presuming consent to donation that would enable them to remove organs without seeking relatives' views.Footnote 34 In addition, they strove to avoid first having to obtain a coroner's consent, arguing that doing so hampered access to organs. With the encouragement of civil servants in the Department of Health and Social Security (DHSS), surgeons forged relationships with individual coroners in the hope of obtaining their permission in advance of a particular donor's death. More widely, health civil servants sought to create a blanket arrangement throughout England whereby every coroner's consent to organ removal could be taken for granted rather than requested on a case-by-case basis.
Herein lay two legal problems. First, a coroner had no jurisdiction over a body until it became a corpse, and therefore the coroner could not give premortem consent to its organs being harvested for transplantation while the patient, however tenuously, remained alive.Footnote 35 Secondly, the Home Office under whom all coroners worked was not eager for them “to delegate their powers in regard to the Human Tissue Act” to surgeons.Footnote 36 Should a coroner do so, he might find himself implicated in the death of a severely brain-damaged patient. The Home Office warned against coroners' giving their premortem consent to organ removal lest this be construed as permission to “switch off a machine which was keeping a potential donor alive.”Footnote 37
GUARDING THE PUBLIC INTEREST
Coroners who received overtures from transplant surgeons differed in their responses. Some agreed to cooperate, while others were troubled by the request. In London, kidney transplanter William Stanley Peart of St. Mary's Hospital created a working relationship with the local coroners through whom he sourced kidneys. Peart noted that initially coroners had been wary of becoming involved but had become more helpful “as doctors had shown themselves to be trustworthy.” In his experience, trust between doctor and coroner was the “most practical basis on which to work.”Footnote 38
Elsewhere, difficulties were experienced. Roy Calne of Addenbrooke's Hospital in Cambridge initially enjoyed a cooperative relationship with the local coroner, and he wrote in a medical journal in 1969 that many coroners were adopting “an enlightened view so as to help transplantation.”Footnote 39 By 1973, however, Calne had fallen out with the Cambridge coroner after he took the kidneys from a young man who had died in a road accident, failing first to inquire if the relatives or the coroner would object. The inquest revealed that attempts to make these inquiries had failed because time was “of the essence” in removing the kidneys.Footnote 40 The Cambridge coroner believed Calne's transplant team had ignored his role, and he charged that the operation erased from the body possible evidence that he would later need.Footnote 41 This coroner ruled that, henceforth in his district, the family's permission must be obtained, in writing, before he would permit organs to be taken from the bodies of road-accident victims.Footnote 42 Calne responded to this decree by placing pressure on the DHSS to intervene, discontinuing Addenbrooke's kidney transplant program, and asserting that the blame for any deaths that resulted from people not receiving kidneys would lie with the coroner, rather than himself.Footnote 43
As Catherine Kelly and Imogen Goold argue, medical practitioners have a long history of making efforts to influence the development of government policy on matters affecting the regulation of medicine and medical research, and they are adept at pursuing medical goals through lobbying.Footnote 44 English health civil servants did their best on surgeons' behalf to reign in individual coroners who thwarted organ procurement for transplantation. The chief medical officer at the time, Sir George Godber, sought to constrain the coroner's role under the Human Tissue Act. He was adamant that it was “no part” of a coroner's function to consider whether or not relatives' permission had been sought.Footnote 45 Godber made a key point: although the Human Tissue Act required relatives to be consulted, it gave coroners no part in ensuring that this consultation occurred. Rather, coroners grounded their belief that they should safeguard the family's interests in the long-standing conception of the coroner's role that required them to take account of the “public interest” during inquests and “preserve the legal interests of the deceased person's family.”Footnote 46
Another coroner who acted from an understanding of her duty to the public interest was Dr. Mary McHugh, coroner for the southern district of Greater London. She sought to safeguard the interests of donors and families against transplanter Michael Bewick, whom she considered untrustworthy.Footnote 47 From 1975 to 1985, McHugh prohibited Bewick from taking kidneys from bodies within her jurisdiction, resulting in his waging a battle against her both in public and private. Bewick accused McHugh of denying more than two hundred people access to kidneys and argued that her “sense that patients and their families need protection” was erroneous. He contrasted McHugh's stance with that of other coroners who were “very helpful.”Footnote 48 His main concern was to obtain as many kidneys as he could to transplant into his sick patients, but McHugh considered that Bewick viewed her own interest in the bodies of potential donors with contempt. Bewick held a flawed understanding of the law. He wrongly asserted that decisions about organ removal should be made by surgeons, not coroners, and further claimed it was merely “an unwritten rule” that a coroner needed to be informed when a “brain-dead” person became a potential organ donor.Footnote 49 In addition, Bewick erroneously considered that a coroner's objection to organ removal could be overruled if a dead person carried a donor card. He made the dramatic declaration that only if someone had been “knifed in the belly” should he be prohibited from operating on him or her to remove the kidneys.Footnote 50
THE CORONERS' SOCIETY OF ENGLAND AND WALES
In the face of coroners' varied interpretations of their role under the Human Tissue Act, the DHSS sought to create a consistently cooperative response throughout England. To help them achieve this objective, they worked through Dr. Gavin Thurston, the long-serving honorary secretary of the Coroners' Society of England and Wales.Footnote 51 The DHSS hoped the society would issue guidelines to all coroners that would facilitate cooperation between coroners and transplanters.
Thurston was “well known for his co-operative attitude towards transplantation,” not least in his own Westminster jurisdiction.Footnote 52 Early in 1968, the DHSS invited him to a private conference it organized under the chairmanship of Sir Hector MacLennan, president of the Royal Society of Medicine, with the twin aims of increasing organ supplies while reassuring the public that patients were not being hurried into death in order to acquire their organs. Crucial in the debate were considerations about what kind of tests should be carried out to determine when a patient was dead, which, later that year, would become the subject of two authoritative international statements on death.Footnote 53 At the first meeting of the MacLennan conference in March 1968, a formula was ratified for assessing death when a transplant was envisaged: “the decision that an organ can be removed from a cadaver can be made when spontaneous cardio-respiratory function has ceased and the clinician responsible for the care of the patient concludes that this condition is irreversible.”Footnote 54 Further, assessing a donor's death would remain a purely medical matter rather than being codified in law, but the conference sought to reassure the public by separating transplant surgeons from involvement in this assessment. It should be carried out by two doctors, one of whom had to be senior, and both of whom were independent of the transplant team.Footnote 55
Godber knew that transplant surgeons at this conference would push to have the Human Tissue Act overturned in favor of a law that would enable them to presume a dead person had consented to organ donation. In light of this, health civil servants asked the conference to consider how such an “opt-out” regime would affect the Human Tissue Act's requirement that a coroner's consent must be gained before organs could be removed from a body in which he or she had an interest. Should transplant surgeons make arrangements with coroners so their consent, too, “may be assumed” provided surgeons gave coroners a report of the operation if and when requested?Footnote 56 Yet, however pressing this question might be, the coroner's role was not the subject of significant discussion at this meeting, which Thurston in fact did not attend. Rather, conference participants recommended the law be changed to enable the presumption of the dead person's consent to donation, without needing to first consult relatives.
Godber hoped Thurston would attend the next meeting, specifically in order to report on his progress in “securing co-operation between coroners and surgeons engaged in renal transplantation.” What Godber had in mind was a system of prior agreement between these two parties that organs could be removed, thus making the Human Tissue Act's requirement that a coroner's consent be obtained “a general consent … rather than specific to the individual case.”Footnote 57 Thurston assured Godber the Coroners' Society Council was “actively considering the topic” with the object of giving general advice to coroners.Footnote 58 However, no such advice had eventuated by May 1968, when Thurston unexpectedly found his cooperation with transplant surgeons the subject of criticism for the role he played in Britain's first heart transplant operation.
JURISDICTIONAL DISPUTES
The first British heart transplants illustrated how organ transplants complicated the coroner's role, as hearts were removed from accident victims who were conveyed across London, out of one coroner's jurisdiction and into another. The first two operations, in May and July 1968, were performed at the National Heart Hospital by cardiac surgeon Donald Ross and his team. That hospital lay in Thurston's coronial district, and he permitted the hearts of Patrick Ryan and Derek Birbeck to be removed, and he also presided at the inquest into Ryan's death.Footnote 59 Thurston subsequently found himself embroiled in a controversy that initially played out behind closed doors but later came to the notice of health civil servants, for he had permitted these hearts to be taken from patients who had initially been admitted to hospitals other than the National Heart Hospital, both of which lay in the Inner London South jurisdiction of another coroner, Dr. Gordon Davies. After suffering from severe head injuries following a workplace accident, Ryan was admitted to King's College Hospital. Doctors there considered that Davies's requirements for determining death placed unnecessary obstacles in the way of organ procurement. He required them to test whether death had truly occurred in a patient attached to a ventilating machine, by turning it off three times, at half-hour intervals, before certification.Footnote 60
At the Ryan inquest, Thurston had difficulty eliciting from doctors the precise time and location of this patient's death. Thurston knew that determining the moment of Ryan's death was important both to ensure it had occurred prior to his heart's being removed and also to establish which coroner had jurisdiction over his body. If Ryan had died at King's College Hospital, Davies would have been the coroner consulted; if death had occurred at the National Heart Hospital, Thurston would have been the coroner. Determining the coronial district was further complicated if death had occurred in the ambulance between these two hospitals.Footnote 61 Thurston ruled that Ryan had died when this event was certified at the National Heart Hospital.
Davies was angered to learn that Ryan had been transferred out of his jurisdiction, and he sought to ensure such a practice would not be repeated. Following Thurston's inquest, Davies sent a letter to all hospitals in his district to remind surgeons of their legal position under the Human Tissue Act, further instructing them that if they desired to remove a prospective donor to a different hospital, regardless of whether death had yet occurred or not, the coroners in both districts must be informed, and Davies must be notified prior to death being certified and given the opportunity to approve the conditions under which the organs were removed. These instructions were ignored when, two months later, Ross and his team performed the second British heart transplant using Derek Birbeck's heart after he was transferred to the National Heart Hospital from Guy's Hospital, which also lay in Davies's district. After the operation, Davies' concerns about this practice became public. He and another coroner, Dr. David Paul of North London, declared the importance of safeguarding the legal rights of “possible ‘spare-part’ donors” against “over-keen surgeons [who] try to cut legal corners in their efforts to get a spare part.” Davies warned that giving a dying man a “new life” through a transplanted organ meant turning off someone else's life. He asked: “Suppose you had a doctor who was mad keen to do such an operation and would do almost anything to get hold of a heart?”Footnote 62 Though Davies stated he did not know of such a case, he reiterated that everything must be done to protect a donor's life.
Civil servants in the DHSS were dismayed by this report in a prominent newspaper and asked the Home Office to intervene with Davies.Footnote 63 The DHSS also communicated directly with him, pointing out the Human Tissue Act was “our affair” and that hospitals looked to health civil servants, rather than coroners, for guidance on it.Footnote 64 The DHSS again turned its attention to the Coroners' Society of England and Wales, concerned that Thurston had not “kept the Coroners in the picture” in regard to the MacLennan conference's deliberations.Footnote 65 This pressure on Davies bore fruit. In May 1969, the third British heart transplant was performed at Guy's Hospital, in Davies's jurisdiction, using the heart of Margaret Sinsbury, who had been transported there from a different hospital.Footnote 66 This time, Davies himself had consented to the heart being removed, on the advice of doctors from Guy's who informed him that Sinsbury's situation was “hopeless,” in that she could not recover from the damage inflicted by the head injury she had sustained.
Following this operation Davies found himself the subject of critical media commentary, as this transplant was reported under such headlines as “Donor's Heart ‘Switched Off’ by Doctors.”Footnote 67 Davies defended his involvement, stating it was his duty in making organs available to see all adequate provisions had been taken to ensure there was “no chance of this person living other than with the help of a machine,” and that in this regard he was willing to accept “second hand evidence” from reputable doctors at Guy's.Footnote 68 Deputy coroner David Foster, who presided at the Sinsbury inquest, also came under heavy criticism as he did not call for any evidence from the neurologist and surgical registrar who had assessed the patient's condition. Davies defended Foster, stating he did not think it necessary to bring such evidence “into open court,”Footnote 69 yet other coroners considered their courts to be precisely the places in which such evidence should be heard and evaluated, given their duty to the public interest.
Soon after this operation, the government published a white paper in July 1969 that articulated the MacLennan formula for declaring death in the context of transplant surgery. Although Thurston was a member of the advisory group that wrote this paper, it barely mentioned coroners other than to make the now familiar statement that their cooperation was “essential,” that in “appropriate cases” they could rely upon “authoritative pathological reports from hospitals” and that patients should not be transported from one hospital to another where a transplant would take place.Footnote 70 The paper reiterated the MacLennan decision that two doctors should certify a person's life to be extinct before organs were removed: both doctors should be independent of the transplant team, and one should have been registered for at least five years. The decision that death had occurred had to be made without regard to the possibility of a transplant, as should be the decision about whether or not to discontinue artificial respiration.
The white paper issued recommendations, not requirements. Further, it did not recommend tests to ensure death had occurred prior to organ removal, despite the fact that in August 1968 an authoritative report by a subcommittee of the Harvard Medical School had done so. That report articulated characteristics that would enable “irreversible coma” to be defined as “a new criterion for death.” There should be no discernible activity of the central nervous system as measured by the patient's lack of response to inner need or “even the most intensely painful stimuli”; no spontaneous movement or breathing observed over at least one hour during which time the respirator was switched off for three minutes; no reflexes; and no swallowing, yawning, or vocalization. Pupils should be fixed and dilated and not respond to direct light; the tendons should not stretch when the reflex hammer was applied. Crucially, these tests were to be repeated after twenty-four hours during which time the person's condition had not changed, and only then should death be declared and the respirator turned off. Finally, like the British white paper, the Harvard report recommended that the decision death had occurred not be made by anyone involved in a later effort to transplant the person's organs so as “to avoid any appearance of self-interest by the physicians involved.”Footnote 71 As B. P. Bliss wrote in the British Journal of Hospital Medicine, because the best chance of a transplant operation succeeding required the swift removal of organs, controversies mainly rested on “the suspicion that perhaps an over-zealous surgeon, anxious to do the best for his patient, and acting with the purest of motives might persuade himself that it is correct to remove an organ before incontrovertible evidence of the donor's decease is present.” When, in addition, the traditional criterion of death had been changed, suspicion could turn to “outcry.”Footnote 72
The relationship of coroners to organ transplants was taken up in Parliament following the Sinsbury controversy. In the House of Commons, Lord Balniel argued that the medical profession “must be under no illusions” about “the enormously deep concern” the public felt about heart transplant operations. He wanted Parliament to lay down “correct procedures” for doctors to follow in certifying deaths, gaining relatives' consent to organ removal, and “perhaps, instructions for coroners.” Though Sinsbury's brain had been “irretrievably damaged” and she had been judged clinically dead, parliamentarian John Brewis noted that “Rip van Winkle” cases existed and doctors had been known to make the wrong calls. A stronger safeguard was needed, and Brewis made the extraordinary suggestion that someone outside the medical profession should decide when a patient was dead. He believed coroners were ideally placed to do so, suggesting their powers be extended to give them responsibility to objectively examine all the evidence about a patient's state and give an impartial decision before a ventilator was turned off. Other parliamentarians agreed that increased protections were required although none suggested such a radical solution. Dr. John Dunwoody advocated a special form of certification in the case of organ donor deaths, while Dr. David Kerr noted that a “curiously complicated legal situation” arose when bodies were moved from one coroner's jurisdiction into another, and he raised the possibility that doctors might prefer to work in the district of a coroner likely to accept their views about a patient's status.Footnote 73 Britain's pioneering heart transplants thus raised significant concerns about the treatment of dying patients that directly bore on the coroner's role.
DONOR DEATHS: THE BRODRICK COMMITTEE
Following the May and July 1968 British heart transplants, the Brodrick Committee on Death Certification and Coroners, of which Kerr was a member, took a sudden interest in the way organs were being procured in cases of reportable death. Three years earlier, the home secretary had appointed the committee, which was chaired by Justice Norman Brodrick, to review the process of issuing death certificates, the role of coroners and their courts, and the disposal of dead bodies. Now, the committee questioned Donald Longmore, a vocal member of the heart transplant team, and kidney transplanter Dr. William Stanley Peart. While Brodrick reassured these surgeons that the committee was concerned only with the legal problems transplantation raised and had no desire to “hinder” these operations, he emphasized that they “gave rise to special problems and to understandable fears on the part of the public.”Footnote 74
The committee was troubled by the practice of transporting donors out of one coroner's district into that of another, where a transplant operation would be performed. Longmore insisted this should be permitted, informing the committee that the practice had evolved during discussions between the heart transplanters and Thurston.Footnote 75 Yet the committee considered transporting donors “reprehensible” and implicitly criticized Thurston's participation in a scheme that, they noted, would be attractive to a keen surgeon who could “arrange to have the body certified dead” by a coroner he knew would not oppose a transplant on principle.Footnote 76 The committee pointed out that this practice raised legal matters in regard to death certification, for if it had been “decided” that a donor was dead before he was moved to another hospital, doing so was an offense; jurisdiction over a body in transit remained open to question.Footnote 77
Brodrick also questioned Longmore and Peart, as well as Sir George Godber, on the matter of surgeons' desire to obtain coroners' “anticipatory consent” to organ removal. At this time, kidney transplants were increasingly being performed. Two hundred such operations were carried out in Britain in 1969, a figure that would rise to 706 by 1977.Footnote 78 To increase the number of viable organs available, Thurston had argued to the Brodrick Committee, a new law was required to empower coroners to give their consent to organ removal in anticipation of a death, before the potential donor had been properly certified dead. But Longmore, Peart, and Godber argued against such an initiative. They preferred the “informality” of present local arrangements, fearing any new legislation might further empower coroners, allowing some to “obstruct the development of transplant operations.”Footnote 79 While formalizing the coroner's anticipatory consent might be a “useful safeguard” for the public, Godber considered it would reduce, rather than increase, organ availability. He also took this opportunity to reiterate his view that a coroner had “no status in transplants as such” and should only have a right to refuse consent where the operation would destroy forensic evidence.Footnote 80
These arguments impressed the committee, which drafted a new section of its report and sent it to the DHSS for comment. Civil servants there were pleased to read a strong statement that a coroner should “never object in principle to transplant operations,” and that it was not a part of a coroner's function to “place obstacles in the way of the development of medical science” or “to take moral or ethical decisions.”Footnote 81 However, they were disturbed by other aspects of the draft report, knowing these would be “unpalatable” in certain quarters, particularly with transplant surgeons.Footnote 82
The Brodrick Committee wanted to ensure that a coroner's consent to organ removal did not implicate him or her in the deaths of patients attached to ventilation machines. The draft warned it would be “quite wrong” for a coroner to be placed in a position where it could be suggested his consent to organ procurement “amounted to permission to switch off a machine which might have been keeping a potential donor alive.”Footnote 83 Such a situation had arisen in the United States in May 1968, when, as Susan Lederer has noted, a medical examiner had pronounced Bruce Tucker dead prior to surgeons removing his heart at the Medical College of Virginia. Tucker's siblings later mounted lawsuits against both the examiner and the surgeons.Footnote 84 The Brodrick Committee sought to protect England's coroners from such an accusation, given that when death was declared prior to organ procurement that declaration was made with the subsequent transplant “much in mind.”Footnote 85
The aspect of the draft report that most dismayed DHSS civil servants was the committee's recommendation that, at least for the time being, doctors should consult coroners “in every transplant case,” whether or not the prospective donor had suffered a violent or unnatural death. This the committee rationalized with reference to the coroner's role as “the guardian of the public interest,” who was independent both of government and the hospitals in which these deaths occurred. Coroners were thus in a “unique position” to demonstrate that a prospective donor's interests had been safeguarded.Footnote 86 DHSS civil servants recognized that if this recommendation was published in the committee's final report, it would make every donor's death the subject of a public inquiry. They feared the resulting publicity would deter individuals from donating organs and prevent hospital doctors from identifying the patients in their care as potential donors.Footnote 87
Given these concerns, DHSS civil servants offered to assist the committee by redrafting this section of the document. The success of this intervention was reflected in the final Brodrick Committee report. It included Godber's statement on the limitations of a coroner's role in organ procurement—none should object in principle, inhibit “medical progress,” or take a “moral or ethical” stance on transplantation.Footnote 88 In addition, the DHSS succeeded in confining the report's discussion of how death was determined prior to a transplant to a brief reference to its own white paper.Footnote 89 The report retained the warning that no coroner should be placed in a position where his consent was construed as permission to switch off a ventilation machine.Footnote 90
But more broadly, the final Brodrick Committee report consistently asserted the importance of the coroner's public interest role. A coroner's discretion on whether or not to consent to organ removal was “absolute” and none could do so in advance of a death as no coroner had jurisdiction over a still-living person.Footnote 91 The most a coroner could do was state what his intention would be after death had occurred. And while the Report no longer included the thorny recommendation that inquests should be held into the deaths of every “vital organ” donor, it left the decision whether or not to hold an inquest to the relevant coroner's “completely unfettered” discretion, and affirmed that should he decide to do so he must undertake “the fullest possible enquiry.”Footnote 92 Here the Brodrick Committee took into account criticism of the coroner's role at the Sinsbury inquest, during which no evidence had been heard from the doctors who had pronounced Sinsbury dead and removed her heart.Footnote 93 The committee asserted that a coroner must always take evidence from those who had made the clinical decision that a donor was dead to publicly demonstrate they had been entirely independent from those involved in the transplant operation.Footnote 94 Only this would reassure the public that donors had received the best available treatment and so build trust in the medical profession and the transplant enterprise.
A DEAD MAN'S COUGH
Three years later, in 1974, a case that came before the Birmingham coroner George Billington brought to the fore fear that a critically ill hospital patient who was viewed as a potential organ donor might be wrongly declared dead. By then, kidneys were the most common grafts being performed and increasing numbers of livers were being transplanted, but an unofficial moratorium had been placed on heart grafts given their low success rate.
The Birmingham case illustrated that the government's white paper recommendations could be ignored. It was publicized in newspapers around the world under headlines like that which appeared in the Guardian: “‘Dead’ Man Coughed in Operation.”Footnote 95 Michael McEldowney was admitted to Selly Oak Hospital in Birmingham on 16 February 1974 after being struck by a car and rendered unconscious. Although he was breathing, two senior doctors agreed he had little chance of recovering due to a deep laceration in his brain. They instructed a junior colleague, Dr. Susan Padmore, that if the patient suffered respiratory arrest he would not benefit from prolonged artificial ventilation, and should he not breathe spontaneously after an hour on that machine he could be presumed dead. Considering that McEldowney was a potential organ donor, hospital staff alerted transplant surgeon Anthony Barnes that kidneys might soon become available to him and telephoned McEldowney's nephew in Ireland to request consent for their removal should the patient die. When the expected respiratory arrest occurred, Padmore followed the senior consultants' instructions. McEldowney failed to breathe spontaneously after an hour on the ventilator, so she assessed him as dead, then began to ventilate the body to preserve the kidneys while waiting for the transplant team to arrive. During the subsequent operation, in which Padmore was involved, a nurse noticed McEldowney's feet move, then the man coughed and began to fight the ventilator. Barnes sutured the surgical wound and McEldowney was returned to the intensive care unit, where he continued to breathe for fifteen hours, then suffered both cardiac and respiratory arrest. When attempts to resuscitate him failed, Barnes was again notified, and this time the operation to remove the patient's kidneys proceeded smoothly. The protections in the white paper were not followed: the doctor who had assessed McEldowney's life to be extinct had been a junior doctor acting alone, and she had subsequently joined the transplant team as the anesthetist during the operation.
As coroner, Billington sought to understand what had happened to help prevent its recurrence. He summoned a large number of witnesses to his courtroom intending to conduct the kind of thorough inquiry the Brodrick Committee's report had recommended. Billington was disconcerted to learn how little agreement existed among medical professionals on the question of assessing death before organs were removed. Padmore informed him that she had been “told to presume death” and had not been instructed “to make any examination except for respiration” to determine if it had occurred. Asked whether she thought McEldowney was alive, she replied, “I did not really know what to think to be honest.”Footnote 96 Nor had the surgeon, Barnes, considered it his duty to establish that the patient was dead before operating on him. Barnes had not listened to McEldowney's chest or heart, stating “[f]rom what I saw, I was satisfied the patient was dead.” Barnes amplified, “[i]t is not my responsibility, being a transplanter to interfere with treatment of a patient or to determine whether the patient is dead in the legal sense.” Billington begged to differ: “If you are going to remove a vital organ you have a responsibility to satisfy yourself,” to which Barnes responded that “the primary decision” was not his. Rather, the duty of a transplant surgeon was not to transplant “dead kidneys” into the recipient. Amongst the pathologists Billington questioned, he found considerable dissension on the timing of this death. Professor K. W. Walton of the University of Birmingham, who had performed an autopsy, told Billington it was particularly difficult to determine death when someone had suffered a head injury, but he considered such a person to be technically alive if his heart was beating. Little attention had been paid to McEldowney's heart in assessing his condition.Footnote 97
Billington feared that transplant surgeons might too soon give up on treating potential donors rather than persevere with attempts to save their lives.Footnote 98 He stated that more generally he knew of four cases in which doctors had certified death but his own officers had later found that the patients were still alive. Other witnesses who appeared before him at the McEldowney inquest spoke of “human cabbages” who had appeared to be dead for days before beginning to speak again.Footnote 99 Disturbed by the evidence he heard from twenty-four witnesses, Billington asserted the public nature of his role, albeit in an idiosyncratic way:
The public has, understandably, a deep-seated, inborn fear and dislike of organ transplantation. It is something that goes against the law of nature. Part of the fear is that, in a desperate situation, surgeons trying to save or prolong not only one life but two may give up hope to [sic] easily for saving the life of the donor. In the end, we must have faith and confidence in these surgeons. We can only do that if they prove to us that our fears and doubts have no solid foundation.Footnote 100
This statement, at first glance, may suggest that Billington was among those suspicious of transplant operations. He was not, for this coroner often made organs available to surgeons, considering that they did “great work.”Footnote 101 But the events surrounding McEldowney's death had unsettled Billington. At the inquest's conclusion he elaborated on the coroner's duty to serve in the public interest and ensure dangers were exposed lest others suffer the same fate. The jury found McEldowney's death to have been due to misadventure, caused by a car accident, but added a rider to its verdict, the function of these being to draw attention to “a public danger” in order to “prevent the recurrence of” similar fatalities.Footnote 102 This jury strongly recommended that the safeguards contained in the government's 1969 white paper and the Brodrick Committee's report be codified into law rather than remain recommendations: that is, two doctors, one of them senior, and neither connected with the transplant operation, should assess and declare an organ donor dead.
AFTERMATH
The Guardian noted that the McEldowney case was likely to “reopen the whole debate on the question of transplant surgery,” for it had highlighted the dilemmas and difficulties doctors faced when they had to act “extremely quickly” if an operation to remove organs was to succeed.Footnote 103 The inquest had two significant outcomes. First, the DHSS revisited its previously abortive efforts to obtain from England's Royal College of Surgeons and Royal College of Physicians a definitive report on how death should be assessed when patients were attached to ventilation machines, hoping such a statement would forestall further cases of erroneous assessment and thereby reassure the public. Secondly, the DHSS made no further attempts to institute a cooperative model between coroners and transplant surgeons throughout England.
A new chief medical officer, Sir Henry Yellowlees, sought assistance from the presidents of the two colleges in “a particularly difficult sphere of clinical practice—that is the concept and definition of brain death.” The DHSS had been trying to accomplish this for years. Civil servants were eager for the Royal Colleges to undertake this role rather than the newly instituted Transplant Advisory Panel, lest the panel, which was dominated by transplant surgeons, be perceived as having “a vested interest in the early definition of brain death.”Footnote 104 The college presidents agreed to assist while noting this might take a long time, given it was a troublesome topic that had for five years caused “great public concern” about how death could be certified while a heart continued to beat.Footnote 105 After much prompting from the DHSS, the colleges' paper, “Diagnosis of Brain Death,” was published in 1976 and unanimously endorsed by a Conference of Royal Colleges and Faculties of the United Kingdom.Footnote 106 This document recommended tests for assessing brain death, which, had they been used in McEldowney's care, would have prevented him from being declared dead: gag reflexes must be tested by inserting a tube into the windpipe, painful stimuli applied to check motor responses, and so forth. When the ventilator was switched off to check if a patient could breathe independently, his or her state should be observed for five minutes. And these tests should be repeated over a period up to twenty-four hours. Only then could experienced clinicians in intensive care units, acute medical wards, and accident and emergency departments certify the patient dead; and if the primary diagnosis was in doubt, they must seek specialist advice.Footnote 107 Though the report did not mention transplantation, it was understood that if a transplant was planned, it could then proceed.Footnote 108
The second outcome of the McEldowney inquest lay in the DHSS desisting from its efforts to systematize a positive response to organ procurement from England's coroners. The Home Office affirmed that decisions whether or not to accede to requests for organs must be left to individual coroners, and if a coroner refused he “may be acting unreasonably, but he is within his rights.” Besides, the Home Office warned, formal guidance might be counterproductive in serving to remind coroners of their limited responsibility under the Human Tissue Act, and that “might not be altogether beneficial” to the doctors who had negotiated cooperative relationships with transplant surgeons.Footnote 109 The result was that coroners continued to differ in their interpretation of their role in transplant surgery. Some willingly gave advance consent to organ removal if it would have no bearing on the results of a postmortem. Some refused their consent unless relatives had also agreed. Others would not permit organs to be removed “whatever the circumstances.”Footnote 110
CONCLUSION
From the mid-twentieth century the surgical ability to cut organs from one person's body and graft them into another challenged long-held conceptions about death and the treatment of dying patients. Hospital doctors caring for people who had suffered unexpected and severe head injuries placed them on ventilation machines in the hope that, over time, they would recover. The question was, how much time should such a patient be given before his or her situation was assessed as hopeless and the machinery switched off? In the ordinary course of events that decision was made by the doctor caring for the person, with the intention that he or she would not suffer a protracted and dehumanized death. Further, it was “good medical practice to recognize when brain death has occurred” and act to spare relatives the further trauma of “sterile hope.”Footnote 111 But the advent of organ transplantation complicated the conventional doctor-patient relationship. As transplant surgeons increasingly looked upon other doctors' patients as ideal sources of organs to graft into their own gravely ill patients, this could shape the final course of the dying person's existence. The McEldowney case had revealed how strongly the “new death,” assessed by cerebral criteria, was operational in the context of transplant surgery by 1974, when neither the doctor who determined he was dead nor the transplant surgeon into whose hands he then passed, assessed the status of this patient's heart.
The modern era in transplant surgery also affected the coroner's role, for many patients suffering from head injuries came within a coroner's jurisdiction. This had been foreseen when the Human Tissue Act was passed in 1961 and a section of that statute specifically protected the coroner's realm. His or her consent must be obtained before material was removed from a corpse lest doing so destroy evidence about the cause of death. But that statute had passed before vital organs were being transplanted, at a time when eyes, bone, and skin were most commonly removed to graft, and as these operations did not need to be performed with great urgency the donors could be pronounced “extinct” by conventional means—after their hearts had stopped beating. However, as transplant surgery expanded into further territory, including the grafting of kidneys, and then hearts and other vital organs, timing and speed became critical, for these needed to be taken at the moment of death, necessitating another, brain-based, way of assessing that state.
English coroners became pivotal to organ procurement, but they were proudly independent of government and hospitals, and they held different understandings of their responsibilities in such situations, with many adhering to the long-standing notion of a duty to the public interest. Faced with individualistic responses from coroners to their requests for organs, transplant surgeons assisted by health civil servants sought to forge fruitful relationships with local coroners, while the DHSS worked behind the scenes with the Coroners' Society, hoping to institute cooperative arrangements across England. As kidney transplant surgeon William Peart and others emphasized, it was crucial that relationships between coroners and transplant surgeons be built on trust. However, as I have shown, in practice trust broke down when some transplant surgeons, impatient at what they perceived to be obstructions placed on their ability to procure organs, sought to obtain them in ways that undermined the coroner's role. During the fifteen years following the passage of the Human Tissue Act, health civil servants failed to establish a cooperative model between surgeons and coroners. Instead, the ethos of the English coronial system remained paramount: these men and women were properly independent of special interest groups and expected to protect the interests of the public from questionable practices in organ procurement.
