CHAPTER 12 Organ and tissue donation

12.1 Human tissue

[12.1.1] What is human tissue?

Human tissue is defined in legislation in each state and territory. The legislation was a response to the 1977 Australian Law Reform Commission’s Report on Human Tissue Transplants, so there are similarities across the jurisdictions.

Human tissue is defined to include an organ or part of a human body, and substances extracted from the human body. All jurisdictions also distinguish between regenerative tissue, meaning tissue that is replaced after injury or removal by the body’s natural processes of growth or repair, and non-regenerative tissue, which is not so replaced.

The legislation excludes fetal tissue, spermatozoa and ova from the definition. These tissues are discussed in chapter 15.

The relevant legislation is in table 12.1.1.

Table 12.1.1 Legislation relating to human tissue

ACT	Transplantation & Anatomy Act 1978 ss 4, 6
NSW	Human Tissue Act 1983 ss 4, 6
NT	Human Tissue Transplant Act 1979 ss 4, 6
Qld	Transplantation & Anatomy Act 1979 ss 4, 8
SA	Transplantation & Anatomy Act 1983 ss 5, 7
Tas	Human Tissue Act 1985 ss 3, 5
Vic	Human Tissue Act 1982 ss 3, 5
WA	Human Tissue & Transplant Act 1982 ss 3, 6

[12.1.2] Who owns human tissue?

The general rule is that no-one owns human tissue; the law regards human tissue as a res nullius, a ‘thing belonging to no-one’. This rule applies to all human tissue, and to corpses. There is a general right given to the executors of a deceased estate to keep possession of the corpse for burial, but this is a very weak form of property right. The effect of this rule is that the common law is challenged by situations of competing claims to human tissue, because it cannot easily access the property language that it might have ordinarily employed.

The legislation in all Australian jurisdictions prevents the creation of contracts for the sale or supply of tissue, although it is possible to obtain ministerial exemption from this provision. It is also permissible to reimburse a person for expenses incurred during the process of having their tissue removed.

There is an exception to the general rule for human tissue that has been changed or preserved through a process of skill and labour. Such tissue can be viewed as property, and protected by property claims. Contracts for the sale or supply of tissue that has been processed or treated for therapeutic, medical or scientific purposes are permitted under Australian laws.

12.2 Donation by adults

[12.2.1] How is blood donation regulated?

Competent adults can consent to the removal of blood for transfusion into others or for other therapeutic, scientific or medical purposes. Consent can be given orally or in writing, except in New South Wales, where written consent is required. All jurisdictions except Queensland require donors to make statements or declarations regarding their suitability to give blood.

Children over 16 are treated as adults for the purpose of consent to blood donation in the ACT and New South Wales.

[12.2.2] How is the donation of other regenerative tissues regulated?

Adults can donate regenerative tissue for transplantation or for other therapeutic, medical or scientific purposes. Consent must be given in writing. In South Australia, consent cannot be given in the presence of a person’s family. In Western Australia, consent cannot be given in the presence of a person’s family or friends.

All jurisdictions except South Australia and Western Australia also require a medical practitioner (who is not the medical practitioner taking the regenerative tissue) to provide a certificate stating that:

• the person’s consent was given in the presence of the medical practitioner

• the medical practitioner explained to the person, before the consent was given, the nature and effect of the removal of the tissue, and

• the medical practitioner was satisfied that, at the time the consent was given:

− the person was not a child

− the person was of sound mind, and

− the consent was freely given.

Once the person has given written consent and a doctor has provided the certificate, the donation of regenerative tissue may go ahead. However, the consent will be ineffective if:

• the person revokes the consent, or

• the certificate contains a statement that is false or misleading.

[12.2.3] Are adults permitted to donate non-regenerative tissue?

Before the rise of transplantation technology, the common law forbade the donation of non-regenerative tissue because it saw it as a form of bodily interference that a person could not consent to: see [6.1.11]. Now, adults can donate non-regenerative tissue under certain circumstances.

The donation must be solely for the purpose of transplantation into another person, and consent must be given in writing. Removal of the tissue cannot occur less than 24 hours after consent has been given. In South Australia, consent must not be given in the presence of a person’s family. In Western Australia, consent must not be given in the presence of a person’s family or friends.

As with regenerative tissue, all jurisdictions except South Australia and Western Australia require a medical practitioner (who is not the medical practitioner taking the non-regenerative tissue) to provide a certificate stating that:

• the person’s consent was given in the presence of the medical practitioner

• the medical practitioner explained to the person, before the consent was given, the nature and effect of the removal of the tissue, and

• the medical practitioner was satisfied that, at the time the consent was given:

− the person was not a child

− the person was of sound mind, and

− the consent was freely given.

A consent is ineffective if:

• the person revokes the consent, or

• the certificate contains a statement that is false or misleading.

NSW Health and the NHMRC have developed processes for ensuring that decisions to donate non-regenerative tissues made by living related donors and non-related (altruistic) donors are valid and freely made. See:

• Kidney donation: living (including directed and non-directed donation) (www.health.nsw.gov.au/policies/PD/2005/PD2005_393.html).

• Organ and tissue donation by living donors: ethical guidelines for health professionals (www.nhmrc.gov.au/consult/donorgan.htm).

[12.2.4] Can regenerative and non-regenerative tissue be taken from an incompetent adult?

Decision-making for incompetent patients is discussed in chapter 8. The basic principle is that medical interventions can only be consented to by a substitute decision-maker when it is in the person’s best interests. Because donation of tissue confers no therapeutic benefit on the donor, it is harder to justify on best interests grounds.

The Supreme Courts in each jurisdiction may employ the parens patriae jurisdiction to consent to the harvesting of either regenerative or non-regenerative tissue, if the donation serves the potential donor’s best interests.

Other substitute decision-makers, such as persons responsible, guardians and enduring guardians, are not empowered to consent to ‘special’ treatment. In Queensland and Victoria any removal of tissue (whether regenerative or non-regenerative) is considered as ‘special healthcare’ (Queensland) or a ‘special procedure’ (Victoria), requiring the consent of the Queensland Guardianship and Administrative Tribunal or the Victorian Civil and Administrative Tribunal: see [8.5.1]. In the ACT and Tasmania, only the removal of non-regenerative tissue requires guardianship authority approval: see [8.5.1]. In New South Wales, the Guardianship Tribunal, guardians, enduring guardians and persons responsible are unable to consent to the donation of either regenerative or non-regenerative tissue. Consent can only be obtained from the New South Wales Supreme Court.

Case example

In Northern Sydney and Central Coast Area Health Service v CT (by his Tutor ET) [2005] NSWSC 551, consent was given by the NSW Supreme Court to the donation of bone marrow by an intellectually disabled adult, CT, to his brother, NT, who suffered from non-Hodgkin’s lymphoma. Consent could not be given by CT’s other relatives because their power as persons responsible was limited to treatments that promoted and maintained CT’s health and wellbeing. Donating bone marrow served no therapeutic purpose for CT, and as such did not promote his physical welfare.

The court used its parens patriae power to assess CT’s best interests, and consented to the donation. Nicholas J stated:

The exercise of the jurisdiction requires the court to regard the welfare and interests of CT as the paramount consideration. Relevant matters to be taken into account in determining what is in his best interest in all the circumstances include, in my opinion, his wishes as expressed by him and his level of understanding. I am satisfied that he at least understands that by participating in the procedure he will be helping his brother to get better, and this is something he wishes to do. I infer from the evidence from both himself and his mother that he would be very distressed if he was refused the opportunity to help his brother and his brother subsequently died. This is consistent with the impression he gave me as having a genuine concern and affection for NT.

Only gold members can continue reading. Log In or Register to continue