Three Things You Always Wanted To Know About Death (But Were Too Afraid To Ask)

It is estimated that since 50,000 BC, approximately 108 billion souls have walked the earth[1].  Apart from the estimated 6.5% of those who are alive today, the one thing all those billions of people have in common is one day, they stopped living.

Given that, apart from taxes, death is the only guaranteed thing in life, it seldom enters our daily conversation.  However, apart from buying property, for many people, the only time they ever have the need to contact a solicitor is in the event of someone dying.  And, given that one of the most important functions of a civilised society is the ability to deal with its dead, there are many laws relating to what happens when we die.

In the spirit of Halloween, we provide the answer three questions you may have always wanted to ask about death:

  1. What does it mean to be legally dead and who decides if you are?

In 1996, a Cambridgeshire woman named Daphne Banks was pronounced dead by a GP at her home at 1.30am.  Neither the police (who were called by the GP) nor the undertakers who took Mrs Banks to the Hinchingbrooke Hospital in Huntingdon noticed anything untoward.  Mrs Bank’s body was placed on a stretcher and covered with a sheet.

Just before the cadaver was to be put in the refrigerator, the undertaker’s assistant noticed Mrs Bank’s chest moving.  Shocked staff immediately began resuscitation after a pulse was found.

Mrs Banks literally came back from the dead.

How do you know if someone is actually dead?  Prior to the advent of modern medicine, it was fairly easy to tell; a person was dead if they stopped breathing and ceased to have a pulse.  But today, you can live for many years on life-support.  So how is death established and who makes the decision?  In the case of Mrs Banks, the police stated that “if a doctor pronounces a person dead, they are not going to argue and try and find a pulse.”

In the UK, there is no legal definition of death.  Instead, there are guidelines for the diagnosis of death if things are unclear.

Brain death

English courts have adopted the ‘brain death criteria’ by the Conference of Medical Royal Colleges, published in 1976 as part of the law in the diagnosis of death[2].  To determine if a patient is brain dead, tests should be done to confirm:

  1. The pupils are fixed in diameter and do not respond to sharp changes in the intensity of incident light.
  2. There is no corneal reflex.
  3. The vestibuloocular reflexes are absent. This test involves injecting 20 ml of ice-cold water into the eye.
  4. There are no motor responses within the cranial nerve distribution when stimulation is applied to any somatic area.
  5. No gag reflex is detected when a tube is passed down the patient’s throat.
  6. The patient cannot breathe when disconnected from a ventilator (subject to strict measurements).

Cessation of cardiorespiratory function

If a person has suffered cardiorespiratory arrest, death is diagnosed when a registered medical practitioner, or another qualified person, confirms the irreversible termination of neurological (pupillary), cardiac and respiratory activity[3].

The deceased person should be observed for a minimum of five minutes by the person confirming death to establish that irreversible cardiorespiratory arrest has occurred.

  1. Who owns a dead body?

Technically, no one.  There is an ancient principle in common law “the only lawful possessor of a corpse is the earth.”

However, this law was established when human bodies held no worth (except to their loved ones).  Nowadays, bodies and body parts can hold value, especially in the field of medical research.

In the late 1990s, Alder Hey Children’s Hospital in Liverpool was the centre of a national scandal when it was discovered that it and several other NHS hospitals had stripped organs and tissue from the bodies of children who had died at the institutions and retained them without parental consent.

The outrage led to the passing of the Human Tissue Act 2004 and a million-pound compensation suit against the NHS by bereaved parents.

The executor of the deceased’s Will has the ultimate right to take possession and dispose of the body (note, possession is different from ownership).  If the deceased did not have a valid Will, the rules of intestacy will be followed to establish who can take possession of the body.  Note – if the deceased was not married and dies without a Will, their partner has no legal right to take possession of the body or make funeral arrangements.  This can result in heart-breaking circumstances, which is why it is imperative that you have a valid Will in place and update it regularly.

The Coroner’s right to possession of a body trumps all others.  If they need to take the body to establish a cause of death, they may do so and do not have to release it for burial until they have finished their work.

If you have the right to possession of the body, that right is automatic.  Therefore, if the deceased dies at home and a Coroner is not required, you can keep the body in the house.  Likewise, you have the right to bring a body home if the person dies in a hospice or hospital.

  1. Can I be buried in my garden?

Provided certain rules are followed, there is no reason why you cannot be buried in your garden.  Burials are covered by the Burial Laws Amendment Act 1880.  To be buried in your garden, those who have possession of your body must obtain permission from the local authority.  A dead body is classed as “clinical waste” and therefore must be disposed of in accordance with the Control of Pollution Act 1974 and the Environment Protection Act 1990.

Your ashes can be freely scattered or buried anywhere.

Contrary to popular belief, the person who has possession of the body does not have to hire an undertaker.  Unless the deceased died of an infectious disease, a dead body poses no health risks to living humans as they contain the same germs in their own bodies.  However, the decomposing process is far from pretty.  Immediately after death, bacteria within the body, especially E. coli contained in the gut, starts to consume the cadaver.  Maggots, which can hatch from eggs laid on the corpse by flies, also devour the rotting flesh, but again, this poses no danger to the living.  Given the unpleasantness of decomposition, including the foul smell that is emitted from a putrid corpse, your relatives may wish to hire a professional to deal with the burial.

Happy Halloween!

Bennett Griffin is award winning solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered and practical manner.  Our wills, trusts and probate department is able to advise and assist you in relation to all matters relating to death.  Please contact us on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.

[1] http://www.prb.org/Publications/Articles/2002/HowManyPeopleHaveEverLivedonEarth.aspx

[2] http://www.bmj.com/content/bmj/2/6045/1187.full.pdf

[3] http://aomrc.org.uk/wp-content/uploads/2016/04/Code_Practice_Confirmation_Diagnosis_Death_1008-4.pdf