The Law Handbook 2024

Chapter 9.1: Health and the law 875 certain other procedures are followed, organs may be lawfully removed once the donor is dead. In these circumstances, there is no legal requirement to obtain the consent of relatives. However, it is standard hospital practice to seek the consent of the next of kin prior to the removal of organs, even in cases where the deceased had elected to become an organ donor and, as stated, some doctors and hospitals may not proceed with organ removal if the family object. Further, there may be clinical reasons that donation cannot proceed. The necessary legal authority to remove organs cannot be granted if the deceased person expressed an objection to organ donation in writing or 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 members are only required to make such enquiries as are reasonable in the circumstances to discover whether a person expressed a wish to be an organ donor or objected to organ donation. A central donor organ register has been established in Victoria to enable quicker 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.humanservices.gov.au/ individuals/services/medicare/australian-organ- donor-register) . Obtaining the consent of relatives Where the deceased person’s views on organ donation are unknown, a hospital can obtain the consent of the person’s ‘senior available next of kin’ before donation can take place. The HT Act lists the next of kin in a specified hierarchy. Relatives in the highest category must be approached first and if one of them is available to make a decision, then that person’s decision will prevail. In relation to a deceased child , the senior available next of kin is the first of the following available people: • parent; • a brother or sister who is at least 18 years old ; or • the child’s guardian immediately prior to the child’s death. In relation to a deceased adult , the senior available next of kin is the first of the following available people: • the person’s spouse or domestic (i.e. de facto) partner; • if the person was not married or did not have a domestic partner, then a child of the deceased who is at least 18 years old and is available; • a parent ; or • a brother or sister over the age of 18 years. 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. Coroner’s cases If a death falls within the jurisdiction of the coroner (i.e. the death is reportable), the coroner’s consent is also required for donation of organs. Withdrawal of consent In all situations where consent is required under the HT Act, the consent may be withdrawn at any time before death (where the patient has given the consent) or before the procedure is carried out. Consent may be withdrawn either orally or in writing. Confidentiality The HT Act 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. Post-mortem examinations Purpose of autopsies The purpose of a post-mortem examination (i.e. an autopsy) is to obtain a complete picture of the former health status of the deceased person and a fuller understanding of all the factors that may have