Still a Part of Me? "Functional Unity" and the Human Body in Scots Law

Abstract

In late October 2020, Ms. Janette Ritson – a cancer patient at the NHS Golden Jubilee National Hospital, Clydebank – underwent a twelve-hour procedure which saw her left tibia subjected to radiation treatment. This occurrence may not appear at first sight to be out of the ordinary, given that radiation treatment is a common form of therapy for cancer patients, but Ms. Ritson’s case was in fact somewhat unusual. While she remained based at the NHS Golden Jubilee, the problematic shin-bone was removed from her body and transported to the Beatson West of Scotland Cancer Centre approximately seven miles away. Following treatment of Ms. Ritson’s tibia in the absence of the rest of her body, it was thereafter returned safely and securely to the NHS Golden Jubilee and successfully reattached to her. Ms. Ritson's case, then, generates cause to revisit certain questions raised by Lord Stewart in the 2013 case of Holdich v Lothian Health Board. This article seeks to address these questions with reference to the German theory of eine Funktionale Einheit [the ‘functional unity’], which was expressly rejected by the English Court of Appeal in the 2009 case of Yearworth v North Bristol NHS Trust, but which - it is argued - would be consistent with the general principles of Scots private law.