Victorian Current Acts Victorian Current Acts(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.
S. 26(2) amended by Nos 27/1987 s. 3(e), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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;
S. 26(2)(d) amended by Nos 27/1987 s. 3(f), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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
S. 26(2)(e) amended by Nos 27/1987 s. 3(f), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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.
S. 26(3) amended by Nos 27/1987 s. 3(g), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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.
S. 26(4) amended by Nos 27/1987 s. 3(g), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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.
S. 26(5) amended by Nos 27/1987 s. 3(g), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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.
S. 26(7) amended by Nos 27/1987 s. 3(h), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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—
S. 26(7)(a) amended by Nos 27/1987 s. 3(i), 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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
S. 26(7)(b) amended by No. 23/1994 s. 118(Sch. 1
item 27.13
(a)(b)).
(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.
S. 26(8) amended by No. 23/1994 s. 118(Sch. 1 item 27.13(a)).
(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.
S. 26A inserted by No. 59/2006 s. 9.