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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 94
As laid on the table and read a first time, 5 April 2005
South Australia
Transplantation
and Anatomy (Post-Mortem Examinations) Amendment Bill 2004
A Bill For
An Act to amend the Transplantation and Anatomy
Act 1983.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of
Transplantation and Anatomy Act 1983
4 Insertion of section 5A
5A Authorisation of retention of
tissue for a purpose
5 Substitution of Part 4
Part 4—Post-mortem examinations
25 Authority for post-mortem
examination where body of deceased person is in hospital
26 Authority for post-mortem
examination where body of deceased person is not in hospital
27 Authority to use for therapeutic,
medical or scientific purposes, tissue removed for post-mortem examination
28 Effect of authority under this
Part
28A Post-mortem examinations to be
conducted with regard for dignity of deceased
Part 3—Amendment of Coroners
Act 2003
6 Amendment of
Schedule—Related amendments, repeal and transitional provisions
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Transplantation and Anatomy
(Post-Mortem Examinations) Amendment Act 2004.
(1) Subject
to this section, this Act will come into operation on a day to be fixed by
proclamation.
(2) Section
7(5) of the Acts Interpretation Act 1915 does not apply to Part 3.
In this Act, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment of Transplantation and Anatomy
Act 1983
After section 5 insert:
5A—Authorisation
of retention of tissue for a purpose
An authorisation in accordance with this Act to remove or use
tissue for a particular purpose will be taken to also authorise the retention
of the tissue, to the extent that such retention is reasonably necessary for
the purpose.
Part 4—delete Part 4 and substitute:
Part 4—Post-mortem
examinations
25—Authority
for post-mortem examination where body of deceased person is in hospital
(1) A designated officer for a hospital may,
subject to this section, by instrument in writing, authorise, for the purpose
of investigating the causes of death of a person who has died in the hospital
or whose dead body has been brought into the hospital, a post-mortem
examination of the body of the deceased person—
(a) if,
after making such inquiries as are reasonable in the circumstances, the
designated officer is satisfied that the deceased person had, during his or her
lifetime, given his or her consent to a post-mortem examination of his or her
body and had not revoked the consent; or
(b) if, after making such inquiries as are reasonable in the
circumstances, the designated officer is not satisfied as to the matters
referred to in paragraph (a) but is satisfied—
(i) that the senior
available next of kin of the deceased person has given his or her consent to a
post-mortem examination of the body of the deceased person; and
(ii) that the deceased person had not, during his or her
lifetime, expressed an objection to a post-mortem examination of his or her
body; or
(c) if, after making such inquiries as are reasonable in the
circumstances, the designated officer—
(i) is not satisfied as to the matters referred
to in paragraphs (a) and (b)(i) but is satisfied
as to the matter referred to in paragraph (b)(ii); and
(ii) is unable to ascertain—
(A) the existence or whereabouts of the next of kin of the
deceased person; or
(B) whether any of the next of kin of the deceased person has an
objection to a post-mortem examination of the body of the deceased person.
(2) If, after making such inquiries as are
reasonable in the circumstances, the designated officer is not satisfied as to
the matters referred to in subsection (1)(a) and has reason to believe—
(a) that the deceased person had, during his or her lifetime,
expressed an objection to a post-mortem examination of his or her body and had
not withdrawn that objection; or
(b) that the senior available next of kin of the deceased person
has an objection to a post-mortem examination of the body of the deceased
person,
the designated officer may, subject to this section, with the
consent of the Minister, authorise a post-mortem examination of the body of the
deceased person in accordance with the consent for the purpose or purposes
specified in the consent.
(3) The Minister must not consent to a
post-mortem examination of the body of a deceased person unless—
(a) the Minister is of the opinion—
(i) that a post-mortem
examination of the body of the deceased person is necessary or desirable in
order to identify or deal with any risk (whether actual or perceived) to the
health of the public; and
(ii) that
the interests of public health justify overriding any objection to a
post-mortem examination of the body of the deceased person expressed by the
deceased person during his or her lifetime or on the part of the senior
available next of kin of the deceased person; and
(b) if the Minister has reason to believe that the senior
available next of kin of the deceased person has an objection to a post-mortem
examination of the body of the deceased person—the Minister has made every
reasonable attempt to persuade the senior available next of kin to grant his or
her consent to a post-mortem examination.
(4) If the designated officer has reason to
believe that the death of the person is or may be a reportable death under the Coroners
Act 2003, the designated officer must not authorise a post-mortem
examination of the body of the deceased person unless—
(a) the State Coroner has given his or her consent to the
post-mortem examination; or
(b) the State Coroner has given a direction (whether before or
after the person's death) that his or her consent to a post-mortem examination
of the body of the person is not required.
(5) Subject
to subsection (6), a consent referred to in this section (other than a consent of the State Coroner) must be in writing.
(6) The senior available next of kin of a
deceased person may, at the request of the designated officer, give his or her
consent to a post-mortem examination of the body of the deceased person orally
by telephone but that consent is not effective unless—
(a) the giving of the consent is heard by two witnesses, at
least one of whom must be a medical practitioner; and
(b) a written record of the consent is made by a witness who is
a medical practitioner; and
(c) that record is signed by the two witnesses.
(7) A consent or direction of the State Coroner
under this section—
(a) may be unconditional or subject to such conditions as are
specified in the consent or direction;
(b) if given orally, must be confirmed in writing.
(8) If
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 5, the consent of any one of those
persons has effect for the purposes of this section.
26—Authority
for post-mortem examination where body of deceased person is not in hospital
(1) The
senior available next of kin of a deceased person whose body is in a place
other than a hospital may, subject to this section, by instrument in writing,
authorise a post-mortem examination of the body of the deceased person for the
purpose of investigating the causes of death of the person.
(2) The senior available next of kin of the
deceased person must not authorise a post-mortem examination of the body of the
deceased person if he or she has reason to believe—
(a) that
another next of kin of the deceased person of the same or higher order of the
classes referred to in paragraph (a) or (b) of the definition of senior
available next of kin in section 5 has an objection to the post-mortem
examination of the body of the deceased person; or
(b) that the deceased person had, during his or her lifetime,
expressed an objection to a post-mortem examination of his or her body and had
not withdrawn the objection.
(3) If the senior available next of kin of the
deceased person has reason to believe that the death of the person is or may be
a reportable death under the Coroners Act 2003, the senior
available next of kin must not authorise a post-mortem examination of the body
of the deceased person unless—
(a) the State Coroner has given his or her consent to the
post-mortem examination; or
(b) the State Coroner has given a direction (whether before or
after the person's death) that his or her consent to a post-mortem examination
of the body of the person is not required.
(4) If—
(a) a
deceased person had, during his or her lifetime, given his or her written
consent to a post-mortem examination of his or her body and had not revoked the
consent; and
(b) the body of the deceased person is in a place other than a
hospital,
a post-mortem examination of the deceased person is
authorised by force of this subsection.
(5) However,
if an inquest may be held under the Coroners Act 2003 into the
death of a deceased person, subsection (4) does not authorise a
post-mortem examination of the body of the deceased person unless the State
Coroner has given his or her consent to the examination.
(6) A consent or direction of the State Coroner
under this section—
(a) may be unconditional or subject to such conditions as are
specified in the consent or direction;
(b) if given orally, must be confirmed in writing.
27—Authority
to use for therapeutic, medical or scientific purposes, tissue removed for
post-mortem examination
(1) A designated officer for a hospital may, by
instrument in writing, authorise the use, for therapeutic, medical or
scientific purposes, of tissue removed from the body of a deceased person for
the purposes of a post-mortem examination of the body performed at the hospital
pursuant to an authority under section 25—
(a) if,
after making such inquiries as are reasonable in the circumstances, the
designated officer is satisfied that the deceased person had, during his or her
lifetime, given his or her consent to the use, after his or her death, of
tissue from his or her body for therapeutic, medical or scientific purposes and
had not revoked the consent; or
(b) if, after making such inquiries as are reasonable in the
circumstances, the designated officer is not satisfied as to the matters
referred to in paragraph (a) but is satisfied—
(i) that the senior available next of kin of
the deceased person has given his or her consent to the use, for therapeutic,
medical or scientific purposes, of any tissue removed from the body of the
deceased person for the purposes of a post-mortem examination of the body; and
(ii) that
the deceased person had not, during his or her lifetime, expressed an objection
to the use, for therapeutic, medical or scientific purposes, of tissue removed
from his or her body after his or her death.
(2) The senior available next of kin of a
deceased person may, by instrument in writing, authorise the use, for
therapeutic, medical or scientific purposes, of tissue removed from the body of
the deceased person for the purposes of a post-mortem examination of the body
performed at a place other than a hospital pursuant to an authority under section 26
unless he or she has reason to believe—
(a) that
another next of kin of the deceased person of the same or higher order of the
classes referred to in paragraph (a) or (b) of the definition of senior
available next of kin in section 5 has an objection to the use, for
therapeutic, medical or scientific purposes, of tissue removed from the body of
the deceased person for the purposes of a post-mortem examination of the body;
or
(b) that
the deceased person had, during his or her lifetime, expressed an objection to
the use, for therapeutic, medical or scientific purposes, of tissue removed
from his or her body after his or her death and had not withdrawn the
objection.
(3) The State Coroner may, by instrument in
writing, authorise the use, for therapeutic, medical or scientific purposes, of
tissue removed from the body of a deceased person for the purposes of a
post-mortem examination of the body performed pursuant to a direction given by
the State Coroner or the Coroner's Court under the Coroners Act 2003—
(a) if,
after making such inquiries as are reasonable in the circumstances, the State
Coroner is satisfied that the deceased person had, during his or her lifetime,
given his or her consent to the use, after his or her death, of tissue from his
or her body for therapeutic, medical or scientific purposes and had not revoked
the consent; or
(b) if, after making such inquiries as are reasonable in the
circumstances, the State Coroner is not satisfied as to the matters referred to
paragraph (a) but is satisfied—
(i) that the senior available next of kin of
the deceased person has given his or her consent to the use, for therapeutic,
medical or scientific purposes, of any tissue removed from the body of the
deceased person for the purposes of a post-mortem examination of the body; and
(ii) that
the deceased person had not, during his or her lifetime, expressed an objection
to the use, for therapeutic, medical or scientific purposes, of tissue removed
from his or her body after his or her death.
(4) If
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 5, the consent of any one of those
persons has effect for the purposes of this section.
(5) A
consent referred to in this section must be in writing.
28—Effect of
authority under this Part
(1) An authority given by a designated officer
for a hospital under section 25 is sufficient authority for a medical
practitioner (other than the designated officer)—
(a) to conduct an examination of the body of the deceased
person; and
(b) to remove tissue from the body of the deceased person for
the purposes of the post-mortem examination.
(2) An authority under section 26 is
sufficient authority for a medical practitioner—
(a) to conduct an examination of the body of the deceased
person; and
(b) to remove tissue from the body of the deceased person for
the purposes of the post-mortem examination.
(3) An
authority under section 27 is sufficient authority for the use, for
therapeutic, medical or scientific purposes, of tissue removed from the body of
a deceased person for the purposes of a post-mortem examination of the body.
(4) An
authority given under this Part is subject to any conditions specified in the
instrument of authorisation.
28A—Post-mortem
examinations to be conducted with regard for dignity of deceased
A post-mortem examination of the body of a deceased person
authorised under this Act must be conducted with regard to the dignity of the
deceased person.
Part 3—Amendment of Coroners
Act 2003
6—Amendment of Schedule—Related amendments, repeal and transitional provisions
Schedule, Part 14, clauses 20 and 21—delete clauses 20 and 21