When you receive an implant, do you own the implant or does somebody else own the implant? If the implant is removed, is the explant your property or does it belong to someone else?
Kerry Fifield considers the law regarding ownership of medical implants.
It is becoming more and more common for people to have a medical implant as technology advances and surgery for joint replacement (hip replacements and knee replacements being the most common) and cosmetic procedures (for example breast implants) become more common and popular. If you receive a medical implant, who owns that implant and who owns the implant in the event that it needs to be removed? It is not uncommon for implants to be removed if they fail or are no longer required.
The question is whether the implant automatically becomes yours because it is in your body. If it does, does it cease to be yours if removed from your body?
There are a number of people who may claim to own the implant;
- The patient
- The manufacturer who made the implant
- The hospital who provided the implant
The first and most obvious place to start in order to examine who has rightful ownership of an implant, is to consider the basic law of contract. If you buy something, it becomes yours because in law you have given consideration (money) in exchange for the item. This provides an obvious answer where the patient has paid privately for the implant surgery. If the patient has had a private hip replacement, he has paid for the surgery and the implant and as such, the law of contract would dictate that the implant belongs to him. If the implant is later removed, he will own the explant.
The law of contract does not help us, however, where the implant surgery was carried out free of charge on the NHS. In this scenario, the patient has not paid for his implant (he has given no consideration). If the answer to the question lies purely with the basic law of contract, the implant is owned by whoever paid for it. Assuming that the manufacturer sold it, they cannot be the owner. If the manufacturer sold it to the NHS, then the implant must belong to the NHS. Therefore, if the implant is later removed, it must be returned to the NHS. It does not belong to the patient.
But is it right that a patient can be walking around with an implant in his body which he does not own? Does the fact that the implant is inside the patient’s body and in the patient’s possession, mean that ownership is automatically passes to the patient?
This is the position adopted by the Department of Health which issued formal guidance on the subject in 1983. This formal guidance states clearly that the Department of Health believe that ownership of an implant provided by the NHS automatically passes to the patient who receives the implant. The guidance goes on to say that ownership will remain with the patient even if the implant is later removed or the patient dies.
The Guidance states – “On implantation, an implant becomes the property of the person in whom it has been implanted and it remains his or her property even if it is subsequently removed. Following the patient’s death, it forms part of her estate unless there is any specific provision to the contrary”
The DOH guidance goes on to consider the situation where an implant fails and needs to be removed. In this situation it will often be necessary for the explant to be taken by the NHS for examination and testing to find out why the implant failed. It is to the benefit of medical research and future patients that the reason for an implant failing is discovered so that implants known to be faulty can be withdrawn and perhaps even removed from patients who already have the implant (take PIP breast implants as an example)
The patient who (as far as the DOH is concerned) owns the property, could refuse to allow the implant to be examined, giving rise to dispute. To solve this problem, the DOH guidance recommends the use of a specific consent form for patients receiving implants, which specifically conveys ownership of the implant, on removal, back to the NHS.
It is not, in fact, clear whether these special consent forms are routinely used and if they are not used, and the DOH Guidance on ownership is correct, the patient will own the implant even after it is removed and will be able to refuse to allow the explant to be examined.
What have the courts said about this issue and is the DOH guidance legally correct?
If the law of contract is applied the answer to this question must be no. There is no logical contractual way that ownership can pass merely because an item remains in a person’s possession. Case law does not help us much either because, perhaps somewhat surprisingly, the issue of ownership of medical implants has not been directly considered by the courts.
A recent case which may give an indication of the position that a Court might adopt, is the case of Yearworth and others v North Bristol NHS Trust (2009), which came before the Court of Appeal.
This case involved the issue of ownership of frozen sperm. In this case the Claimant (the patient) had elected to bank his sperm to be kept frozen at the Defendant hospital facility before he underwent chemotherapy treatment. This was in order to preserve the possibility of having children in the future, since the chemotherapy was likely to leave him infertile. There was a failure at the Defendant hospital facility resulting in his sperm sample thawing out and dying. The Claimant sued the Defendant hospital both for negligent damage to property and for personal injury. In order to establish his claim for damage to property, he had to establish ownership of the semen sample. The Defendant argued that since it had possession of the sperm sample at the time, it was the owner of the sample, not the Claimant. The question put to the judge was, effectively, did possession of the sperm result in ownership of the sperm? The original trial judge concluded that this was the case, he decided that since the sperm was in possession of the Defendant hospital, it was no longer the Claimant’s property. On appeal by the Claimant, the Court of Appeal decided that the sperm was in fact the Claimant’s property since he had produced the sperm, solely for his own future use. Possession by the hospital did not, of itself, convey ownership.
There are some obvious differences between this case, involving a bodily fluid, and a foreign body implant which is provided to the patient solely for the patient’s use and not for the benefit of the NHS. However, if the point regarding ownership does apply to medical implants, then possessing the implant or prosthesis within your body will not result in ownership. This conflicts with the Department of Health Guidance.
It is worth noting that the DOH guidelines significantly pre-date the Yearworth case but that they have not been revised. Whilst the guidance remains in force and whilst the issue of implant ownership has not reached the courts, it is probably the case that, notwithstanding Yearworth, ownership of medical implants is with the patient who receives the implant.
For further information about ownership of implant or if you have concerns that your implant may have failed, please contact our specialist medical negligence team.