Health and the law

In Victoria, the law about blood donations and organ and tissue transplants is in the Human Tissue Act 1982 (Vic) (‘HT Act’). The Act also defines when death has occurred for legal purposes. It should be noted that the HT Act contains special provisions relating to consent and confidentiality that may override 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 (ss 3(1), 5 HT Act)) 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 HT Act.

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).

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

It is lawful for 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.

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.

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. I

f 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) 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 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.

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, the hospital should 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 willing to make a decision, then that person’s decision will prevail.

In relation to a deceased child, a parent must be approached first. When a parent is not available, a brother or sister who is at least 18 years old can provide consent. When neither a parent nor an adult sibling 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 person was not married or did not have a domestic partner, then a child of the deceased who is at least 18 years old may consent. If a spouse, or domestic partner, or a child of the deceased person is not 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.

Coroner’s cases

If a death falls within the jurisdiction of the coroner (i.e. the death is reportable), the coroner must consent to the organ or tissue donation.

In all situations where consent is required under the HT Act, the consent may be withdrawn at any time before death or before the procedure is carried out.

Consent may be withdrawn either orally or in writing. 

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.