The law in Victoria about blood donations and organ and tissue transplants is to be found in the Human Tissue Act 1982 (Vic) ("HTA 1982"). The Act also defines when death has occurred for legal purposes. It should be noted that the HTA 1982 contains special provisions relating to consent and confidentiality that may over-ride or supplement the general rules on informed consent and confidentiality outlined earlier in this chapter.
By law, human tissue (which includes organs but not foetal tissue, spermatozoa or ova: HTA 1982 ss. 3(1) & 5) cannot be removed from the body of a living or dead person for the purpose of transplant or research unless consent has been obtained in accordance with the HTA 1982. Consent is also required to carry out a post-mortem examination on a deceased person and to dissect a corpse for teaching or scientific purposes. However, where the death is a reportable death, the Coroner has the power to order that an autopsy be carried out or that a body be exhumed if they believe that this is necessary for the investigation of a death. The Coroner's powers are set out in the Coroners Act 2008 (Vic).
Under the HTA 1982, an adult can donate blood both for transfusion to another person or for medical or scientific purposes. For the purposes of this Act, in relation to blood donation an adult is a person who is 16 or over. If a doctor advises that the donation of blood by a child is unlikely to be harmful to the child's health and the child agrees to the donation, a parent may give written consent to the donation on behalf of the child for the same purposes as adult donors.
In some circumstances, it is lawful for doctors to give blood transfusions to children, even where the consent of a parent or legal guardian has not been obtained. It is lawful for a doctor to perform a blood transfusion on a child without obtaining parental consent if it is the doctor's opinion that the transfusion is reasonable and proper treatment for the child's illness and that, without the transfusion, the child is likely to die.
However, the doctor must obtain a second opinion before performing the transfusion. If the child is in a hospital, the consent of the chief medical administrator or medical superintendent must be obtained if no other doctor is available to provide a second opinion.
The HTA 1982 states that adults may donate specified "regenerative tissue" and "non-regenerative tissue". Regenerative tissue is human tissue that, after injury or removal, is replaced in the body of a living person by natural processes, e.g. bone marrow. Regenerative tissue can be donated for transplantation to another person or for therapeutic, medical or scientific purposes. Non-regenerative tissue, such as a kidney, can only be donated for transplantation purposes.
Generally, only adults may donate tissue. However, a parent of a child may give written consent to the donation of regenerative tissue (such as bone marrow) by the child for the purposes of the transplantation of the tissue to a brother, a sister or a parent of the child.
If a parent has given written consent to donation of regenerative tissue by a child for transplantation, a doctor must be satisfied that both the parent and the child understand what is involved and agree to the removal and transplantation of the tissue. When satisfied about these matters, the doctor may then give a written certificate which authorises another doctor to remove the tissue. However, if the doctor considers that a brother or sister of the child is likely to die without the transplant, and that the child concerned is too young to give informed consent, they may give a written certificate authorising the removal of tissue without obtaining the child's consent.
Children are not permitted to donate non-regenerative tissue.
The law operates on the principle that the views a person expressed while alive about organ donation will be respected once they are dead. However, although it is lawful to remove tissue after the death of the deceased person if the deceased is known to have wanted that to occur, some doctors and hospitals will not do it in practice if family members object. If the deceased person's views are not known, it is left to the next of kin to decide whether that person should become an organ donor. If the views of the deceased person are not known and no relative can be found, the person may have organs removed for donation.
A person may consent to become an organ or tissue donor while alive by expressing, in writing, the desire to donate their organs or tissue after death. The donor may withdraw consent at any time before death. A person may also consent to become an organ donor orally in the presence of two witnesses during their final illness.
Where a wish to become an organ donor is expressed in the manner indicated above, and certain other procedures are followed, organs may lawfully be removed once the donor is dead. In these circumstances, there is no legal requirement for the consent of relatives to be obtained. However, it is standard hospital practice to seek the consent of the next of kin of the deceased person prior to the removal of organs, even in cases where the deceased person had elected to become an organ donor and, as stated, some doctors and hospitals may not proceed with organ removal if the family object.
The necessary legal authority to remove organs cannot be granted if the deceased person is known to have expressed an objection to organ donation in writing or to have made an oral statement objecting to organ donation in the presence of two witnesses during their last illness.
Decisions about whether to remove organs must be made within a very short time after death has occurred. Hospital staff are only required to make such enquiries as are reasonable in the circumstances to discover whether a person had expressed a wish to be an organ donor or had objected to organ donation. A central donor organ register has been established in Victoria to enable faster checks on whether a person has consented to be a donor.
The most practical way of ensuring that your views about organ donation are made known to hospital staff is to always carry a signed written statement in your wallet indicating whether or not you are prepared to be an organ or tissue donor, or to register with the central register (you can register either your willingness to donate or an objection to being a donor) at www.medicare.gov.au/public/files/large-print/australian-organ-donr-register-large-print-pdf
Where the deceased person's views on organ donation are unknown, the consent of the person's "senior available next of kin" must be obtained before donation can take place. The HTA 1982 lists the senior available next of kin in a specified order. Relatives in the highest category will be approached first and if one of them is willing to make a decision, then that person's decision will prevail.
In relation to a deceased child, a parent must be approached first. Where a parent is not available, a brother or sister who is at least 18 years old has authority to consent. Where neither a parent nor an adult brother or sister is available, the deceased child's guardian may give consent.
In relation to a deceased adult, the person's spouse or domestic partner must be approached first (if the deceased person was married or in a domestic relationship). If the spouse is unavailable or the person was not married or did not have a domestic partner, then a child of the deceased who is at least 18 years of age may consent. If neither the spouse or domestic partner nor a child of the deceased person is available, a parent may consent and, if no parent is available, a brother or sister should be consulted.
If there are two or more people who have equal authority to make the decision, the consent of any one of these people is sufficient.
If a death falls within the jurisdiction of the Coroner, the Coroner's consent must be obtained.
In all situations where consent is required under the HTA 1982, the consent may be withdrawn at any time before death or before the procedure is carried out. Consent may be withdrawn either orally (e.g. by informing a doctor or nurse at the hospital that a person no longer agrees to donate their organs) or in writing.
The HTA 1982 requires doctors and certain other hospital staff to keep confidential the identity of people (both alive and dead) who have donated organs or who have received donor organs, unless they consent to the disclosure of this information. However, this information may be disclosed under a court order or if disclosure is required under another law or for the purposes of hospital administration or medical research.
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BLOOD TRANSFUSIONS AND ORGAN TRANSPLANTS :: Last updated: Thu Jul 1st 2010