William Anderson died of a heart attack in 2012. He was diagnosed and treated for bowel cancer at Central Manchester University Hospital in 2006 and, because he had a family history of bowel cancer, his DNA was extracted and tested for two high-risk genes. The DNA sample, but not his blood or tissue, was retained by the hospital.
His putative son, David Spencer, was not aware of Anderson's family history of bowel cancer before his death. Spencer's mother had registered her partner at the time of his birth as the father, but Spencer claims he was conceived when his mother was in a relationship with Anderson, which ended early in the pregnancy.
In 2015 Spencer was informed by the hospital's genetics counsellor that, if he was Anderson's son, he faced a 50 percent risk of an inherited predisposition to bowel cancer, known as Lynch syndrome. He was subsequently advised that bowel screening by colonoscopy every two years could reduce the risk of the disease, but that if he was unrelated to Anderson the course of screening might not be necessary. Colonoscopy has a 1 in 1000 risk of bowel perforation.Spencer sought a declaration from the court that Anderson was his biological father and that the stored DNA sample could be tested. In granting the declaration, Justice Peter Jackson exercised the court's inherent jurisdiction to direct such testing.
He found that post-mortem DNA testing did not fall under the provisions of the Human Tissue Act, which allows for consent to be taken from a range of relatives and others if the individual has died, as the Act does not regulate the use to which DNA is put and applies only to human tissue consisting of cells. Justice Jackson heard arguments against there being a statutory power to allow testing in circumstances such as this, based on the rights of the person whose DNA it is.
'DNA testing is an interference of the highest order with the subject's right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer's position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent,' he said.
However, Justice Jackson acknowledged there was nevertheless a 'statutory void' and was prepared to exercise the court's inherent power to direct testing. He explained this was a case where 'the absence of a remedy would lead to injustice'.
'I accordingly find that Mr Spencer's interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court's inherent jurisdiction to secure this outcome,' he ruled.
Rosalind English of the One Crown Office Row writes that the case throws up some surprising facts: 'One is that this is the first time the courts in this country have been asked to direct post-mortem scientific testing to establish paternity. The other is that DNA is not covered by the Human Tissue Act because genetic material does not contain human cells.'