Victorian Consolidated Legislation

Human Tissue Act 1982 - SECT 26

Authority to remove tissue after death

26. Authority to remove tissue after death



(1) A designated officer for a hospital may, subject to and in accordance with
this section, authorize the removal of tissue from the body of a person who
has died in the hospital or whose dead body has been brought into the
hospital-

   (a)  for the purpose of the transplantation of the tissue to the body of a
        living person; or

   (b)  for use of the tissue for other therapeutic purposes or for medical or
        scientific purposes-

where-

   (c)  the deceased person-

   (i)  had, at any time, in writing; or

   (ii) had, during his last illness, orally in the presence of two witnesses-
        expressed the wish for, or consented to, the removal after his death
        of tissue from his body for such a purpose or use;

   (d)  subject to subsection (3), where the senior available next of kin of
        the deceased person makes it known to the designated officer that he
        consents to the removal of tissue from the body of the deceased person
        for such a purpose or use; or

   (e)  where the designated officer-

   (i)  after making such inquiries as are reasonable in the circumstances, is
        unable to ascertain the existence or the whereabouts of the next of
        kin of the deceased person; and

   (ii) has no reason to believe that the deceased person had expressed an
        objection to the removal after his death of tissue from his body for
        such a purpose or use.



(2) Where the body of a deceased person is in a place other than a hospital, a
registered medical practitioner and a person with an authority given under
section 25(b) are authorized, subject to and in accordance with this section,
to remove tissue from the body of the deceased person-

   (a)  for the purpose of the transplantation of the tissue to the body of a
        living person; or

   (b)  for use of the tissue for other therapeutic purposes or for medical or
        scientific purposes-

where-

   (c)  the deceased person-

   (i)  had, at any time, in writing; or

   (ii) had, during his last illness, orally in the presence of two witnesses-
        expressed the wish for, or consented to, the removal after his death
        of tissue from his body for such a purpose or use;

   (d)  subject to subsection (3), where the senior available next of kin of
        the deceased person makes it known to the registered medical
        practitioner or authorized person that he consents to the removal of
        tissue from the body of the deceased person for such a purpose or use;
        or

   (e)  where the registered medical practitioner or authorized person-

   (i)  after making such inquiries as are reasonable in the circumstances, is
        unable to ascertain the existence or the whereabouts of the next of
        kin of the deceased person; and

   (ii) has no reason to believe that the deceased person had expressed an
        objection to the removal after his death of tissue from the body for
        such a purpose or use.

(3) A designated officer for a hospital shall not give an authority under
paragraph (d) of subsection (1) and a registered medical practitioner or
authorized person shall not remove tissue under paragraph (d) of subsection
(2) if he has reason to believe that the deceased person-

   (a)  had, during his lifetime, expressed in writing an objection to the
        removal of tissue from his body after his death; or

   (b)  had, at any time during his last illness, expressed orally in the
        presence of two witnesses an objection to the removal of tissue from
        his body after his death.

(4) A designated officer for a hospital who gives an authority under paragraph
(c) of subsection (1) for the removal of tissue from the body of a deceased
person and a registered medical practitioner or authorized person who removes
tissue under paragraph (c) of subsection (2) from the body of a deceased
person shall forthwith advise the senior available next of kin of the deceased
person that he has authorized the removal of, or removed tissue in accordance
with the wish or consent of the deceased person.

(5) The senior available next of kin of a person may make it known to a
designated officer for a hospital or a registered medical practitioner or
authorized person at any time when the person is unconscious before death that
he consents to the removal, after the death of the person, of tissue from the
body of the person for the purpose or a use referred to in subsection (1), but
the designated officer or registered medical practitioner or authorized person
shall not act on such an indication if the person recovers consciousness.

(6) Where there are two or more persons having a description referred to in a
subparagraph of paragraph (a) or (b) of the definition of senior available
next of kin in section 3, the consent of any one of those persons has effect
for the purposes of this section notwithstanding any indication to the
contrary by the other or any other of those persons.

(7) A designated officer for a hospital shall not give an authority under
subsection (1) in respect of a deceased person and a registered medical
practitioner or authorized person shall not remove tissue under subsection (2)
from the body of a deceased person unless-

   (a)  where the respiration or the circulation of the blood of the deceased
        person is not being maintained by artificial means-a registered
        medical practitioner (not being the designated officer or the
        first-mentioned registered medical practitioner) has certified in
        writing-

   (i)  that he carried out a clinical examination of the person; and

   (ii) that, in his opinion, the person has died within the meaning of
        section 41; or

   (b)  where the respiration or the circulation of the blood of the deceased
        person is being maintained by artificial means-two registered medical
        practitioners, neither of whom is the designated officer or the
        first-mentioned registered medical practitioner and each of whom has
        been for a period of not less than five years a registered medical
        practitioner, have each certified in writing-

   (i)  that he 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

   (ii) that, in his opinion, at the time of examination, irreversible
        cessation of all function of the brain of the person had already
        occurred. Penalty: 100 penalty units or imprisonment for six months,
        or both.

(8) For the purposes of subsection (7), any period during which a person who
is a registered medical practitioner practised as a registered medical
practitioner, however described, under the law in force in a place outside
Victoria shall be taken into account in calculating the period of five years
referred to in that subsection.