The Law Handbook 2024

874 Section 9: Health, wills and other legal issues affecting older people 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 (i.e. a death that must be reported to the court and investigated by the coroner; e.g. a workplace fatality), the coroner can order that an autopsy be carried out or that a body be exhumed. The coroner’s powers are set out in the Coroners Act 2008 (Vic). Blood donations and transfusions Who can donate blood? Under the HT Act, a person aged 16 or over can donate blood for transfusion to another person or for medical or scientific purposes. Children under the age of 16 can donate blood for these same purposes, if a doctor advises that the donation is unlikely to harm the child’s health, if the child agrees to the donation, and if their parent gives written consent. Blood transfusions to children Blood transfusions are a form of medical treatment. A patient (or their substitute decision-maker) may consent or refuse a blood transfusion. The HT Act contains a provision that allows a doctor to give a child a blood transfusion without parental consent if the doctor believes 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 no other doctor is available to provide a second opinion (and the child is in a hospital), the consent of the chief medical administrator or medical superintendent must be obtained. Donations of human tissue and organs by living persons What sort of human tissue can be donated? The HT Act 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 (e.g. a kidney) can only be donated for transplantation purposes. Donations of human tissue by children Children are not permitted to donate non- regenerative tissue. However, a child may donate regenerative tissue if the tissue is to be transplanted to their brother, sister or parent (with consent from the child and their parents). Also, before the donation takes place, a doctor must be satisfied that both the parents and the child understand what is involved in donating tissue. However, if a doctor thinks that the child’s brother or sister is likely to die without the transplant, and that the child is too young to give informed consent, they may authorise the removal of tissue without obtaining the child’s consent. Organ and tissue donation after death 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 death from 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 person’s senior available next of kin (ss 3, 26 HT Act, discussed further below) to decide whether that person should become an organ or tissue donor. If the views of the deceased person are not known and there is no senior available next of kin, or this person cannot be located, then the designated officer may authorise the removal of organs and tissue for donation. How can a person consent to or reject organ donation? A person may consent to donating their organs and/ or tissue after their death by expressing, in writing, their desire to be a donor. The donor may withdraw consent at any time before death. A person may also consent to donating their organs orally in the presence of two witnesses during their final illness. Where a person’s wish to donate their organs is expressed in the manner indicated above, and