23rd November 2023


First Reading

Bill introduced on motion by Mr Greg Piper, read a first time and printed.

Second Reading Speech

Mr GREG PIPER (Lake Macquarie) (10:41): I move:

That this bill be now read a second time.

Today I am pleased to introduce the Human Tissue Amendment (Ante-mortem Interventions) Bill 2023. This important bill aims to improve outcomes for organ and tissue donation recipients in New South Wales by ensuring that donated tissue and organs are in the best possible condition when retrieved for transfer to a donor recipient. The bill will also allow for a more efficient organ donation process by permitting medical imaging to determine the viability of potentially donated organs prior to costly and potentially unnecessary organ retrieval operations taking place. If the bill is passed, there is no doubt that more lives will be saved and changed in New South Wales.

The bill amends the Human Tissue Act 1983, and subsequently the organ and tissue process in New South Wales, to include a process for the authorisation of ante-mortem interventions prior to a potential tissue donor's passing. Ante-mortem interventions are procedures carried out before a potential tissue donor dies that do not have a medical benefit to that person but can determine, maintain or improve the viability of organs or tissue to be donated, thereby allowing for better outcomes for organ donation recipients. Such interventions can include the administration of medications, the undertaking of blood tests or the undertaking of medical imaging.

Currently, the use of ante-mortem interventions for the purpose of organ donation in New South Wales is restricted, for reasons I will get to shortly. Certain medications have been shown to improve the function and viability of the donated organs when transplanted to a recipient. For example, intravenous anticoagulant medications such as Heparin, if administrated before a potential donor dies, can reduce the possibility of blood clots forming and reduce the risk of organ failure or damage, and possibly the need for secondary transplants in the future.

Additionally, allowing medical imaging such as coronary angiograms to be undertaken prior to a potential tissue donor's death for the purpose of the assessment of organs will reduce the need for avoidable and costly retrieval procedures when an organ is assessed as unviable for transplantation. This will save unnecessary distress to a potential donor's family and potential organ donor recipients, who are advised of a potential donor match and then are subsequently advised that the organ has been assessed as unsuitable after the retrieval process. At that terrible time, when families are dealing with the often unexpected loss of a loved one but have made the generous decision to donate their loved one's organs or tissues, this bill will allow consent to be given for interventions that will ensure that gift is given the best possible opportunity to save the life of another.

At the present time, the use of ante-mortem interventions in New South Wales is severely limited due to restrictions around medical consent. Currently, where a patient lacks capacity to consent to an ante-mortem intervention, the provisions of the Guardianship Act 1987 restrict a guardian or next of kin from consenting to their use. This is because under the current provisions of the Guardianship Act, consent to medical treatment on a patient by a responsible person has no effect if that proposed treatment is carried out for a purpose other than that of promoting or maintaining the health or wellbeing of the individual patient.

Ante-mortem interventions generally provide no benefit to an individual patient. They are primarily for the benefit of a transplant recipient. As such, as the law in New South Wales currently stands, consent cannot be provided for such ante-mortem interventions for the purpose of organ and tissue donation. The current legislative provisions significantly limit opportunity for the use of ante-mortem interventions to the extraordinarily rare situation where a potential donor can provide express consent to the treatment. This is so even if a potential donor has consented to the donation of their organs after death, generally through inclusion on the donation register or where the potential donor's family have also consented to organ donation.

Ante-mortem procedures are only considered at the point where medical specialists have determined that the person is so ill that they are expected to die, and that active treatment will no longer be of benefit to the patient, generally after the decision to withdraw life support is made. In drafting this bill we have worked closely with senior clinicians in the field of organ and tissue donation to ensure that the processes for consent to ante-mortem interventions align with the organ donation process. Amendments to legislation allowing for consent to the use of ante-mortem interventions were introduced in Victoria in 2020. New South Wales is currently out of step.

There is much work to do in the organ donation space in New South Wales. Despite having a higher population and organ donation consent rate, our deceased organ donation rate is almost 20 per cent lower than in Victoria. In 2022 there were 22 more deceased organ donors in Victoria than in New South Wales and an extra 52 transplant recipients—52 extra people given a second chance at life. I am not suggesting that ante-mortem interventions are the only factor here, but I do believe allowing the use of ante-mortem interventions in New South Wales will increase our deceased donor rate, allowing more lives to be saved. I know there are many in this House who are interested in improving organ donation rates in New South Wales. I note that I have discussed this with the member for Wagga Wagga, my friend the member for Sydney and other crossbench members. Particularly, I note my discussions with the member for Holsworthy, who I believe has joined us in the Chamber. I look forward to working with her in this policy area into the future.

I acknowledge and thank the organ donation specialist clinicians working at St Vincent's Hospital, particularly Professor Peter Macdonald, clinical nurse specialist Liarna Honeysett and transplant coordinator Rodrigo Fritis-Lamora, who have championed this reform. The St Vincent's team are passionate advocates for ante-mortem interventions and organ donation. I am grateful for their assistance and for the invaluable work they do day in, day out for the New South Wales community. I am also grateful for the assistance of Associate Professor Michael O'Leary, co-State medical director of DonateLife NSW, for his guidance and assistance around this issue, and the support of other clinicians working in the field of organ donation, including Dr Michael Crawford, head of transplantation services at Royal Prince Alfred Hospital.

I acknowledge the assistance and advice of NSW Ministry of Health staff regarding the organ donation process. I also acknowledge the tireless work of the many organ donation advocates in New South Wales, including Brian Myerson from ShareLife and Robert Manning, who many in this House would know well. I recognise that many of these people have joined us in the gallery today. I thank them for all of their assistance and for joining us in the gallery to witness what I hope is the passage of this important bill.

I will now turn to the details of the bill. The bill inserts a new part 4A into the Human Tissue Act 1983 and establishes a process for authority to be given for the carrying out of an ante-mortem procedure for the purpose of transplantation of tissue from a donor's body after the donor's death to the body of another living person. The definition of "relevant purpose" in new section 27B of the bill specifically excludes ante-mortem interventions for the purpose of the transplantation of gametes from a potential tissue donor. Gametes are reproductive cells—ova or egg cells in females and sperm in males. The bill is not proposed to amend current laws around posthumous reproduction and for the avoidance of doubt has been specifically excluded within the bill. New section 27B includes a specific definition and hierarchy of "senior available next of kin" which replicates, in substance, the current definition of senior available next of kin within the Human Tissue Act. Amendments have been made to reflect the fact that the potential tissue donor is not yet deceased.

It is noted that there are two distinct and separate consent processes in New South Wales which must be considered during end-of-life care and the organ donation process. These are medical consents before a patient's death, which is regulated by the Guardianship Act, and consent to organ donation after death, which is regulated by the Human Tissue Act. Organ donation guidelines dictate that discussions with potential donors' families are separate discussions to end-of-life conversations and should only occur after medical and family consensus has been reached that active treatment will no longer be of benefit to the patient. Medical treatment decisions before death are primarily determined by a "person responsible" as defined within the Guardianship Act, whereas consent to organ donations is generally determined by a person's "senior available next of kin", as defined within the Human Tissue Act.

While often a responsible person under the Guardianship Act and a senior next of kin under the Human Tissue Act are one and the same person, this is not always the case. Ante-mortem interventions would only be considered following discussions with next of kin authorising organ donation to proceed. The bill has been intentionally drafted to allow for senior available next of kin consent to ante-mortem interventions, rather than a person responsible under the Guardianship Act. This is to incorporate ante-mortem intervention discussions within the organ donation process and to avoid confusion and added complexity to this process.

New section 27C of the bill sets out the process of authority to carry out an ante-mortem procedure. It provides that a designated officer for a hospital may authorise an ante-mortem procedure to be carried out if a potential tissue donor consents; or where a potential tissue donor lacks capacity to consent, senior available next of kin consents—subject to certain requirements being met; or where a potential tissue donor lacks capacity to consent and a senior available next of kin cannot be located, a designated officer may authorise, but only if they are satisfied the potential tissue donor has provided written consent to organ donation during their lifetime.

New section 27C (3) provides protection for potential donors by requiring a prescribed practitioner to certify in writing that they are reasonably satisfied that the death of the potential tissue donor is expected and the carrying out of the ante-mortem procedure will not hasten death or cause more than minimal harm to the potential tissue donor. The inclusion of the reference to minimal harm acknowledges that most minor and simple everyday medical interventions such as the insertion of a cannula may cause a minimal degree of harm. New section 27C (4) defines a prescribed practitioner to be a designated specialist in the first instance or, in circumstances where a designated specialist is not available, an experienced medical practitioner registered for at least five years. Neither a designated specialist nor an experienced medical officer providing the required certification can be involved in care of the patient.

New section 27D provides that a senior available next of kin may not provide consent unless they have no reason to believe the potential tissue donor has expressed an objection to the carrying out of an ante-mortem procedure. Finally, new section 27F addresses possible situations of conflict between treatments which may have been consented to by a person responsible within the meaning of the Guardianship Act and ante-mortem procedure consent by a senior available next of kin. New section 27F provides where a person responsible has given consent to a treatment, and this treatment is incompatible with an ante-mortem procedure, an authority to ante-mortem intervention has no effect.

The bill is a rational and sensible proposal to address an issue within the medical consent process and the organ donation process. It has widespread support by clinicians working in the field of organ transplantation and organ donation advocacy groups. It strikes the right balance between protecting potential organ donors and ensuring we embrace every opportunity to improve the effectiveness of organ donations in New South Wales. The concept here is simple, if an individual or their family have made a decision to consent to organ donation, we should be doing everything reasonably possible to ensure their gift is honoured. Families are not being forced to consent to ante-mortem interventions or organ donation, they are simply being given the opportunity to access these interventions if they wish to use them.

Organ donation saves and improves many lives in New South Wales every year, but our processes could no doubt be better. This is but one small change which could help to improve our current system, but it is an important one. The bill has been carefully prepared with many involved, but I particularly recognise my research officer, Roisin Moir, and thank her for the skill and expertise she brought to the process. I am hopeful that all members of the House will recognise the benefit of this simple, and I would hope uncontroversial, legislation and that the bill finds broad support as it traverses both Houses. I commend the bill to the House.

Debate adjourned.

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