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‘Trust Me, I’m a Doctor’: On the Unnecessity of Some Necessary Post-Mortems

Having a post-mortem (henceforth PM) carried out on a recently deceased loved one can be hugely distressing for those left behind. The procedure involves a detailed examination of the body after death, and requires what some would deem to be a violation of the deceased’s bodily integrity. For obvious reasons, the subject of the PM him or herself is not harmed by the procedure (unless, perhaps, they had previously expressed a wish not to undergo a PM). Rather, it seems that the harm that PMs do, if any, is most readily understood as being inflicted upon those of the friends and relatives of the deceased who are distressed by the idea of a pathologist examining their loved one, mere days after they have been confronted with the loss of that person. Here, I shall consider the ethics of certain legally required post mortems.


Broadly speaking, there are two main purposes for which a PM may be carried out. First, a physician might believe that a PM should be carried out because it would allow researchers to further medical understanding about the illness or condition that caused death. Second, a coroner might believe that a PM ought to be carried out because the cause of the deceased’s death is unknown. In accordance with the UK Human Tissue Act (2004), whilst physicians must obtain consent (either from the deceased prior to death or the next of kin after death) in order to carry out a PM, coroners do not (see section 11 of aforementioned act); under the UK Coroner and Justice Act (2009), it is a legal requirement for the coroner to conduct an investigation into a death, an investigation which will in the majority of cases involve a PM, if 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.




In this post, I shall be interested primarily in condition (b) above. Is it really the case that it ought to be a legal requirement that the coroner must always investigate a death simply because the cause of death is unknown? I shall suggest not.

The physician or coroner who completes a death certificate is required, not only to include the immediate, direct cause of death on the certificate, but also to attempt to ascertain the underlying cause that initiated the fatal sequence of events that led directly to death, and, where possible, include that on the death certificate. To highlight the issues that I want to address here, consider the following two examples.


First, suppose that a young man with a clean bill of health collapses whilst he is out jogging. By the time he arrives at the hospital he has already died, and doctors have not had the opportunity to carry out tests prior to the man’s death to ascertain its cause.


Second, suppose a 94 year old man is found unconscious on the floor in his living-room by his part-time care assistant. He is taken to hospital where doctors carry out a CT scan and discover that he has suffered from a significant brain hemorrhage; they also note that he has a small laceration on the front of his forehead, and hypothesize that he sustained this head injury when he collapsed by hitting his head on a table near to where he was found. The doctors also note that the man has a medical history of heart problems; although there are tests that they could carry out in order to ascertain whether the man has recently had any sort of cardiac event, the physicians decide not to carry out these tests, since the man’s pulse is now regular, and the tests would intrude upon time that the family could spend with the patient as he peacefully succumbs to the damage caused by the hemorrhage. There is nothing that the doctors can do, and the man dies peacefully.


In the first case, the doctors do not know the immediate direct cause of the man’s death (it might be a heart attack, or an aneurism say), let alone the underlying cause. Here, it seems that a post-mortem is warranted, since it is highly unusual for a young man to die in these circumstances and the post-mortem is likely to provide doctors with information that will allow them to find out at least the direct cause of the man’s death. Even if the next of kin do not want to know this information, there is a case for nonetheless carrying out a PM. First, what caused death here might have important medical ramifications for the man’s relatives, since certain fatal maladies are heritable. Second, investigating the cause of death here may be the only way in which to rule out the possibility of third party interference being the underlying cause of the man’s death. Given the unusual nature of the circumstances here, the possibility of third party interference being an underlying cause of the death may be just as likely as a more natural cause, given the rarity of a death resulting from natural underlying causes in this sort of case.


However, the second case is different. Here, the doctors know what the direct cause of death was; the CT scan revealed the extent of the man’s brain hemorrhage, and this, we may assume, adequately accounts for what brought about the end of life. What the doctors do not have sufficient evidence to explain is the underlying cause of death, that is, what caused the hemorrhage. On the one hand, the hemorrhage could have been caused by the impact of the man’s fall. In that case, the underlying cause of death would have been what caused the man to fall. The history of heart failure suggests that the fall could feasibly have been caused by a heart attack; alternatively, sometimes elderly men can simply lose their balance. In either case, such events, although unfortunate, are not unusual for men of this age. On the other hand, the hemorrhage may have been caused by a pre-existing neurological abnormality, and the man’s fall wan incidental to the death.


There are two important things to note here. First, since the doctors know the direct cause of death here, and have two equally likely candidates for the underlying cause, they have, it seems, sufficient evidence to make a judgement about whether the underlying cause might have ramifications for the future health of the man’s relatives; moreover, in this case, we may suppose that neither suspected underlying cause represents a heritable trait which could affect other family members. Second, we may suppose that there are no grounds for suspicion of third party interference in the second case. Unlike the young jogger, the hypothesis of a natural underlying cause is overwhelmingly more probable than the hypothesis of third-party interference. Indeed, even if the doctors believed that there was evidence to suggest that there had been third-party interference which caused the man to fall, this could have been investigated prior to his death (for example, they might carry out a toxicology blood test to see if he had been poisoned). The need to carry out tests in order to rule out the possibility of third party interference, if they were necessary, would, we may imagine, have taken precedence over the need not to intrude upon the family’s time with the dying patient whilst the man was still alive.


These are two important differences between the two cases. However, perhaps the most important difference is that in the second case, the doctors may have good grounds for believing that the PM will not reveal anything that they do not already know. Any pre-existing neurological problem that could have been the underlying cause of death may have been rendered untraceable by the hemorrhage; perhaps the most that the PM might reveal is the exact extent of the deceased’s underlying heart problem, which in turn might give doctors a slightly better estimate of whether the patient might have suffered a minor cardiac event that could have caused him to fall. However, even this might not be picked up on a PM examination. Indeed, PMs in elderly people often fail to pinpoint a single specific cause of death; the matter is simply over-determined, given the general deterioration of organ function that occurs as a natural part of the ageing process. Thus, the doctors might even believe that a PM would be futile.


Yet in spite of all this, a coroner would still be legally required to carry out a post-mortem examination in the second case as well as the first. Purely in view of the fact that the death occurred following an accident (in this case an accidental fall), the doctor has no legal authority to sign the certificate, whether or not that accident itself had any role in initiating the fatal sequence of events that led to death.  Even if the next of kin were strongly against a PM being carried out on their loved one, and even if the doctors themselves were aware that the PM would be unlikely to yield any new conclusive evidence about the underlying cause of death, the PM would still have to be carried out by law. The doctor simply has no legal power to sign the death certificate until the matter has been investigated by the coroner; and if the coroner is not satisfied that the underlying cause of death has been established, then he may feel compelled to carry out a PM investigation so that all possible avenues have been explored.


Why then, are we in this absurd Kafka-esque situation in which a coroner is legally required to pursue an investigation into a death through the process of an emotionally charged procedure that the family might be strongly opposed to, and which the physician knows is likely to be entirely futile. Why do we so desperately need to know the precise underlying cause of death if the primary cause is known, but is itself over-determined?


One, (but not the only) explanation of why this is currently the legal situation in the UK is that making a PM a legal requirement in even these sorts of circumstances provides the physician with a degree of legal protection against litigation. As long as there is uncertainty about the underlying causes of a person’s death, then the attending physician is legally vulnerable until all evidential avenues have been explored. For example, suppose that the PM in these sorts of circumstances required the consent of the deceased’s next of kin, and they refused to give it. Suppose that the physician then signed the death certificate citing only the primary cause of death. She might quite legitimately worry that the relatives of the deceased could return at a later date and raise a legal case against her concerning the underlying cause of their relative’s death; by then though, all the relevant evidence would no longer be available. However, if it is a legal requirement that such cases have to be referred to a coroner for investigation, then the physician cannot be held liable for the death following the investigation, presuming that the PM does not reveal anything untoward; all evidential avenues concerning the underlying cause of death will have been exhausted.


If this (admittedly tentative) hypothesis is correct then it seems to stem from a far broader problem in health-care today, one that is addressed in part by Onora O’Neill;[1][1] namely our apparent need to constantly hold health care professionals legally accountable. This attitude is perhaps understandable in view of some of the recent horror stories in the UK where NHS staff have grossly failed in their duties to their patients. Moreover, it is no surprise that the changes in UK law concerning death certificates were brought about in the years following the atrocities of the notorious Dr. Shipman.


However, whilst there is undoubtedly a need for some measures to ensure doctor’s legal accountability, the above considerations indicate a problem with swinging the pendulum too far away from placing trust in our care-givers to do the right thing ethically, as well as medically. I do not have space to further develop this thought into what sort of balance ought to be struck here; however perhaps one initial change could be to give relatives the choice to veto a PM if they are willing to sign a legal document that declares their waiving of their right to sue the attending physician at a later date. In any case, an important point that we should draw from this is that in dispensing with any trust in our physicians, and putting it instead in the hands of a legal infra-structure that governs what they are able to do, we are in danger of preventing our doctors from making empathetic, and ultimately human decisions in crucial areas of medical care in which they are expert; and this can only be to the detriment of patients and their relatives in a context as emotionally charged as the one considered above.




[1]See O’Neill, Autonomy and Trust in Bioethics, Cambridge University Press,  (2002), Ch. 10.


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