Human Tissue Amendment Act 2020 No.42 (Vic)
This article applies to Victorian hospitals.
On 9 December 2020, the Human Tissue Amendment Act 2020 No.42 (Vic) (the Amending Act) amended the Human Tissue Act 1982 (Vic) (the Act).
Background to the new changes authorising ante-mortem procedures
Clinical staff will be aware that medical practice in relation to organ donation after circulatory death requires ante-mortem procedures (i.e. a procedure to determine, maintain or improve the viability of tissue including the administration of medication or the taking of blood for testing) to be undertaken on a person, before cardio-respiratory support can be withdrawn to ensure that the person’s organs are in fact viable for donation.
While the Act permits the transplantation of human tissue, including organs after the death of the donor, or for the use of tissue for other therapeutic, medical or scientific purposes, prior to 9 December 2020 the Act was silent as to how ante-mortem procedures may be authorised. As such, the purpose of the Amending Act is to establish the process for authorising ante-mortem procedures.
The new process is discussed in further detail below.
How may ante-mortem procedures be authorised?
The Act now requires that before the designated officer for a hospital gives an authority to carry out ante-mortem procedures on a person (either for the transplantation of the person’s tissue after their death or for the use of that person’s tissue after their death for other therapeutic, medical or scientific purposes), the medical treatment decision maker of that person (for example the person’s spouse) must have consented to the carrying out of ante-mortem procedures in respect of that person. The only exception to this rule is where the hospital’s designated officer:
- after making such reasonable inquiries, is unable to ascertain the existence or whereabouts of the medical treatment decision maker of the person; and
- has no reason to believe that the person had expressed an objection to the carrying out of ante-mortem procedures in respect of that person for the purposes of the transplantation of the tissue of that person after death to the body of a living person, (or for the use of the tissue of that person after death for other therapeutic purposes or for medical or scientific purposes).
Organisations should also be aware that a designated officer for a hospital is prohibited from providing an authority to carry out ante-mortem procedures on a person unless, where the respiration or the circulation of the blood of the person is being maintained by artificial means, 2 registered medical practitioners, (neither of whom is the designated officer and each of whom has been for a period of not less than 5 years a registered medical practitioner), have each certified in writing:
- that the practitioner has carried out a clinical examination of the person while the respiration or the circulation of the blood of that person was being maintained by artificial means; and
- that, in the practitioner’s opinion, at the time of examination, death of the person would occur as a result of the withdrawal of the artificial means of maintaining the respiration or the circulation of the blood of the person.
Organisations should ensure all ante-mortem procedures carried out in your hospital comply with the new requirements introduced by the Amending Act. To this end, organisations should update their policies and procedures to specify the newly required process authorising the carrying out of ante-mortem procedures as discussed above and should ensure relevant clinical staff are made aware of these updated policies and procedures.
For further information please contact the Law Compliance team:
Phone: 1300 862 667