A High Court judge has backed the religious right of Jews and Muslims to ask for a post-mortem to be carried out by scan rather than cutting up open the body.
The case was brought by the family of an Orthodox Jewish woman who resisted an order by Inner London Coroner Mary Hassell for an invasive autopsy to determine the cause of her death last year.
The coroner’s decision had been “flawed”, Mr Justice Mitting said in a one-day hearing in London today.
Rabbi Asher Gratt, spokesman for the strictly Orthodox Adath Yisroel Burial Society, said: “People in our community who until now have been living in fear can as a result of this landmark ruling breathe a sigh of relief. Justice has prevailed.”
Solicitor Trevor Asserson, who represented the family, said he was “delighted at the judgment which vindicates the position which the family have taken. This is an important decision in protecting the religious rights of Muslims and Jews in this country.”
The case arose out of the death of an 86-year-old Golders Green woman who died shortly after being admitted to the Royal Free Hospital last September.
Mrs Hassell ordered a postmortem because doctors were uncertain whether her death was due to a heart attack or septic shock.
But the woman would have been “horrified” at the thought of an autopsy being performed on her body, the judge said.
According to London Beth Din head Dayan Menachem Gelley, whose evidence was read in court, “cutting open a body and removing internal organs is regarded as the desecration of a body” in Jewish law.
The head of the burial society, Sidney Sinitsky, had told the coroner’s office that the family were prepared to pay for an alternative non-invasive method of examination.
But Mrs Hassell believed that a CT scan would not reveal infection if it were the cause of death and wanted a traditional autopsy to go ahead.
However, the family obtained an emergency injunction to stop the coroner.
Instead, Professor Ian Roberts of the John Radcliffe Hospital, Oxford, using a CT scan, found that it was more than 90 per cent probable than the woman had died from heart failure.
In the meantime, blood tests taken from the woman at the Royal Free conclusively ruled out infection as a cause of death.
The judge said Mrs Hassell’s decision had been “flawed and open to being quashed on judicial review grounds”.
The coroner had explained she worked under pressure, handling 20 deaths a day on average.
It was “unreasonable to expect perfection in decision-making by a coroner in these circumstances,” the judge said. What could be expected was “a correct legal approach”, he added.
He said a non-invasive procedure should be considered when the family requested it on religious grounds if there were a “reasonable possibility” that it could establish the cause of death; if there were “no good reason” to order an invasive autopsy; and if it would not impair the findings of an invasive autopsy should that subsequently prove necessary.
The non-invasive procedure should also be done “without imposing an additional cost burden on the coroner,” the judge said.
Mrs Hassell had opposed the hearing on the grounds that its findings were academic. But another judge had ruled that it raised questions of principle that were likely to arise in other cases.
Mr Justice Mitting ordered the coroner to pay 90 per cent of the claimant’s costs.
Chief Rabbi Ephraim Mirvis welcomed the ruling as victory for common sense and religious freedom.
In a statement he said: "This is a very significant development which will give heart to numerous Jews and Muslims for whom the fastest possible burial of a loved one, not subject to an invasive autopsy, is of great importance.
"This is a victory both for common sense and for religious freedom and I would like to place on record my appreciation for all the efforts of the Adat Yisrael Burial Society and other communal bodies who worked so hard on this."
