P v Melbourne Health
[2019] VSC 500
•26 March 2019: Revised reasons published 25 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S ECI 2019 01269
| P (a pseudonym) | Plaintiff |
| v | |
| MELBOURNE HEALTH | Defendant |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2019 |
DATE OF JUDGMENT: | 26 March 2019: Revised reasons published 25 July 2019 |
CASE MAY BE CITED AS: | P v Melbourne Health |
MEDIUM NEUTRAL CITATION: | [2019] VSC 500 |
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MEDICAL PRACTITIONERS AND SERVICES – Urgent application by domestic partner of deceased man for order that permission be given to medical practitioner to remove spermatozoa and associated tissue from body of deceased – Whether Court has power to make such order – Removal of tissue from body of dead persons prohibited by Human Tissue Act 1982 except in accordance with a consent or authority that is sufficient under that Act – Power to authorise removal held (on interlocutory basis) to be vested exclusively in repositories nominated in the Act – Held (on interlocutory basis) that Court itself has no power to authorise removal – Order made (on interlocutory basis) to require prompt consideration by designated officer of hospital of exercise of statutory power – Declaration also made as to ancillary factual matter – Human Tissue Act 1982 ss 3 (definitions) and s 25, 26, 44; Assisted Reproductive Treatment Act 2008, ss 3 (definitions) 7, 8, 16, 35, 36, 37, 47, 85.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N Papaleo | |
| For the Defendant | No appearance |
HIS HONOUR:
On Tuesday 26 March 2019, in very urgent circumstances, the plaintiff applied in the Practice Court for orders in relation to the removal and preservation of sperm and associated tissue from the body of her domestic partner who had died two days earlier (on Sunday 24 March 2019).
I dealt with the plaintiff’s application in the Practice Court on 26 March 2019 and made certain orders in relation to it. I gave brief oral reasons for those orders and I included in the recitals to the authenticated order (in ‘Other Matters’) a short explanation for the orders. I now publish my reasons in greater detail.
It is fitting that the identities of the plaintiff and of the deceased be protected by the use of a pseudonym, in like manner to various previous comparable cases, and that, subject to any further order, the Prothonotary should treat the file as confidential.[1] I have given a direction to that effect today.
[1]See, e.g., AB v Attorney-General (2005) 12 VR 485 (‘AB v Attorney-General’); Y v Austin Health (2005) 13 VR 363; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3. See also s 45 of the Human Tissue Act 1982.
On the afternoon of Monday 25 March 2019, the Practice Court Co-ordinator informed my Associate that a woman had indicated to the Court that she may wish to seek urgently from the Practice Court an order designed to facilitate the removal of sperm and associated tissue from the body of a man who was then said to be on ‘life support’ in a hospital in Melbourne. Few other details were available. I commenced to research the law that might be applicable. I was then told that the proposed application would probably be made the next day. I continued to research the law overnight and the next day.
It emerged that the hospital in question was the Royal Melbourne Hospital. At my request the Practice Court Co-ordinator made it known to the proposed applicant (who later became the plaintiff) that the Hospital should be notified of the proposed application.
At about 3.05pm on Tuesday 26 March 2019 the plaintiff filed an originating motion as a litigant in person. It was apparent from the originating motion that the plaintiff had had some legal assistance in its preparation. The plaintiff had used Form 5C of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), being the form suitable to be used in urgent matters. The originating motion named as the defendant ‘Royal Melbourne Hospital’. No time or date for the return of the originating motion was specified in it. Nor was any summons issued. However, the Court was informed that the plaintiff wished to bring the matter on, as soon as possible, that day. The substantive relief or remedy claimed in the originating motion was expressed as follows:
Permission be given to a legally qualified medical practitioner to remove sperm and associated tissue (the Biological Material) from the body of [name of relevant man] which is presently at the Royal Melbourne Hospital in Melbourne and such Biological Material be stored in accordance with the [Assisted] Reproductive Treatment Act 2008 (Vic).
The Biological Material so removed and stored not be used for any purpose without an order of this Honourable Court.
Such further or other order as this Honourable Court considers appropriate.
I directed the Registry to indicate to the plaintiff that a copy of the originating motion should be sent to the Royal Melbourne Hospital and that the plaintiff should inform the Hospital that the Court expected that an appropriate representative of the Hospital would appear at the hearing of the application.
The proceeding was duly called on before me at about 3.53pm that day. Ms N Papaleo of counsel appeared for the plaintiff. There was no appearance for the Hospital. Ms Papaleo informed me that in-house legal representatives of the Hospital had been notified of the proposed application and had been provided with a copy of the originating motion. However, the legal representatives of the Hospital had apparently indicated to the plaintiff, or to her counsel, that there would be no appearance on behalf of the Hospital at the hearing that day.
On the other hand, the legal representatives of the Hospital had said that they would be available to communicate with the Court by telephone if the Court desired.
I was disappointed that the Hospital had not seen fit to send a legal representative or any other representative in person to the Court. In the urgent circumstances, it was not appropriate, nor even practicable, for the Court to take up the Hospital’s suggestion of communicating with it by telephone.
I asked Ms Papaleo to identify why it was considered that the plaintiff needed to make an application to the Court. Ms Papaleo informed me that, on her instructions, the deceased, who had been until his death the domestic partner of the plaintiff, had died an untimely death at the Hospital two days earlier (on Sunday 24 March 2019); that therefore the man was not, strictly speaking, on ‘life support’ but rather that he was deceased and that the functioning of his body was being maintained by artificial means; that the Hospital was intending to remove various organs from the man’s body the next morning (Wednesday 27 March 2019) and to preserve them for possible transplant; that the intended removal and preservation did not extend to the deceased’s sperm and associated tissue; that the plaintiff had been the man’s domestic partner for a considerable period up until the time of his death; that the plaintiff had requested that the Hospital also remove and preserve the man’s sperm and associated tissue for possible use by the plaintiff in the future; and that the Hospital had told the plaintiff that it could not, or would not, do so without an order of the Court in that regard.
Next, I asked Ms Papaleo whether she was aware of the basis or reason for the position taken by the Hospital. Ms Papaleo said that this was not entirely clear, but that someone at the Hospital had told the plaintiff that the Hospital would not proceed without a court order. There had also been some suggestion that the Hospital considered that it was not in a position to regard the plaintiff as the ‘senior available next of kin’ of the deceased for the purposes of the relevant legislation. That suggestion seemed particularly strange. The legislation that was principally relevant was the Human Tissue Act 1982 (Vic). It is true that that Act provides for the ‘senior available next of kin’ to give consent to the removal of tissue after the death of a person. However, that Act does not distinguish between types of tissue in that regard, and it seemed that the Hospital was satisfied with the plaintiff’s standing in relation to the removal of tissue other than sperm and associated tissue from the body of the deceased person.
In any event, Ms Papaleo said that it would probably be at least helpful for the plaintiff’s purposes if the Court were to make a declaration as to the plaintiff’s standing as senior available next of kin.
Ms Papaleo further indicated that she understood that the Hospital did not wish to oppose any of the relief that had been sought in the originating motion.
There was no affidavit evidence before the Court. However, Ms Papaleo said that she was in a position to call oral evidence from the plaintiff about the plaintiff’s relationship with the deceased and to tender two documents.
Accordingly, I heard sworn oral evidence from the plaintiff, and I received the two documentary exhibits.
Exhibit 1 was in two parts. The first part was a letter from the Hospital, signed by a ‘Clinical Nurse Consultant’ in the Intensive Care Unit and addressed ‘To Whom It May Concern’, indicating, among other things, that the deceased was admitted to the Intensive Care Unit at the Hospital on 23 March 2019 with a sudden illness; that he had been on life support; but that, unfortunately, he had died on Sunday 24 March 2019. The second part was a form issued by the Hospital entitled ‘Authority for Removal of Organs and Tissues after Death: Senior Available Next of Kin (SANOK) Consent’. The form had been completed and signed by the plaintiff on 25 March 2019. It indicated consent on the plaintiff’s part to the removal of various specified organs and tissues from the body of the deceased. The form indicated that the plaintiff’s consent and signature had been witnessed by named staff of the Hospital.
Exhibit 2 was a letter written and signed by a person identified as the deceased’s grandfather and adoptive parent. The letter referred to the plaintiff as the deceased’s ‘de facto’, and it indicated agreement on the author’s part to the plaintiff’s application to the Court in relation to the deceased’s sperm.
Although the originating motion did not expressly include a claim for a declaration, I indicated to Ms Papaleo that, in view of the evidence that I had received, I was satisfied that the plaintiff was the ‘domestic partner’ of the deceased as defined in the s 3 Human Tissue Act 1982 and that, accordingly, the plaintiff was the ‘senior available next of kin’ of the deceased as defined in that same section.[2] I further indicated that, taking into account what Ms Papaleo had told me about the Hospital’s general position, I was prepared to make a declaration to this effect.
[2]See paragraph [36] below.
In addition, I indicated to Ms Papaleo that, in my view, the name of the defendant should be corrected to ‘Melbourne Health’. It appeared that a body corporate of that name conducted Royal Melbourne Hospital.[3] Ms Papaleo agreed to an order making that correction.
[3]See Health Services Act 1988 (Vic) ss 65P, 181 and Schedule 5; Re Milenkovich; State Trustees Ltd v Melbourne Health & Ors [2018] VSC 598 [10].
I considered it appropriate, also, to make the standard procedural orders authorising the issue of the proceeding in Form 5C and dispensing with the requirements of Rules 5.03(1) and 8.02 of the Rules.
The question that remained was what other orders, if any, should be made. Orders virtually identical to the main substantive orders that had been claimed in the originating motion had been made previously in the Practice Court in similar cases in very urgent circumstances.[4] However, I had formed the provisional view by this stage that it was not open to the Court to make substantive orders in that form. My view was based principally on s 44 and Part IV of the Human Tissue Act 1982, as analysed by Hargrave J (as Hargrave JA then was) in 2005 in AB v Attorney–General (‘AB’).[5] I was also concerned that any such orders might be out of harmony with the Assisted Reproductive Treatment Act 2008.[6]
[4]For example, Gillard J made orders in such terms on 13 July 1998: see the history recounted in AB v Attorney-General (n 1), 488-489 [1]-[12], especially [8]; Fields v Attorney-General [2004] VSC 547 (Coldrey J); Y v Austin Health (2005) 13 VR 363, 366-367 [11]-[13] (Habersberger J). More recently, on 13 January 2019, Keogh J made a similar order in like circumstances in Crawford v La Trobe regional Hospital (Supreme Court of Victoria, S ECI 2019 00243, commenced 22 January 2019).
[5]AB v Attorney-General (n 1).
[6]See further below at paragraph [33].
So far as relevant, s 44 provides:
(1)A person shall not remove tissue from the body of a person whether living or dead except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by that person.
Penalty: 100 penalty units or imprisonment for six months, or both.
…
(4) A person shall not—
(a)give an authority under this Act without having made the inquiries that he is required by this Act to make or having been satisfied that those inquiries have been made;
(b)remove tissue from… the body of a deceased person without having made the inquiries that he is required by this Act to make or having been satisfied that those inquiries have been made;
(c)make a false statement in a certificate given for the purposes of this Act; or
(d)contravene or fail to comply with a provision of Division 4 of Part II.
Penalty: 100 penalty units or imprisonment for six months, or both.
(5) Nothing in subsection (1) or (2) applies to or in relation to—
(a) anything done in pursuance of an order by a coroner under the Coroners Act 2008; or
(b) any other act authorized by law.
The most significant provisions of Part IV of the Human Tissue Act 1982 are as follows—
PART IV – DONATIONS OF TISSUE AFTER DEATH
25. Effect of authority under section 26
An authority under section 26 is sufficient authority—
(a) for a registered medical practitioner other than—
(i)a registered medical practitioner who gave the authority; or
(ii)a registered medical practitioner who gave a certificate under section 26(7) relating to that authority—
to remove tissue from the body of a deceased person in accordance with section 26; and
(b)for a prescribed person or a person belonging to a prescribed class of persons to remove tissue, or a prescribed class of tissue, from the body of a deceased person in accordance with—
(i)an authorisation of a designated officer under section 26(1); or
(ii) an authority given by section 26(2).
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.
…
(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.
…
Certain terms that are included in the provisions of Part IV to which I have referred are defined in s 3 of the Act. The most relevant definitions are as follows:
designated officer in relation to a hospital means—
(a)a registered medical practitioner for the time being appointed under section 4 to be a designated officer for that hospital; or
(b)where, in relation to a hospital, there is no such person, the medical superintendent of the hospital or, while he is absent from or not on duty at the hospital, a person acting in his place;
domestic partner of a person means—
(a) a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i) for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
* * * * *
next of kin means—
(a)in relation to a child—a person referred to in subparagraph (i), (ii) or (iii) of paragraph (a) of the definition of senior available next of kin; and
(b) in relation to any other person—a person referred to in subparagraph (i), (ii), (iii) or (iv) of paragraph (b) of that definition;
senior available next of kin means—
(a) in relation to a deceased child—
…
(b) in relation to any other deceased person—
(i)where the person, immediately before the person's death, had a spouse or domestic partner and that spouse or domestic partner is available—the spouse or domestic partner;
…
In AB,[7] Hargrave J held, among other things, that certain orders that had been made by Gillard J in 1998 (in very urgent circumstances) on the application of the then plaintiff (AB), being orders that were expressed in a form adopted in the later Victorian cases referred to above (and adopted again in the originating motion in the present case), were orders that, by reason of the provisions of s 44 of the Human Tissue Act 1982, read with the provisions of Part IV of the Act, should not have been made.[8] In short, his Honour’s view was that s 44 prohibited the removal of tissue (including sperm) from the body of a deceased person except in accordance with a consent or authority that was sufficient under the Act. The Act left no room for this Court or any other court to give such a consent or authority. A consent or authority could only be given by the persons specified in the Act, and only in the circumstances specified in the Act. In particular, by virtue of s 26 of the Act, where the body of the deceased was in a hospital, only the ‘designated officer’ for the hospital had power to authorise the removal of tissue.
[7]AB v Attorney-General (n 1).
[8]Ibid 503-508, especially at 505 [121]-[122].
AB was argued by eminent senior and junior counsel on both sides. The judgment of Hargrave J was a reserved judgment. His Honour referred to each of the earlier Victorian decisions in which orders for removal had been made, noting that those decisions had necessarily been arrived at in extremely urgent circumstances without any significant opportunity for argument, research or reflection. By contrast, Hargrave J had the opportunity to, and did, examine the relevant provisions of the Human Tissue Act 1982 very carefully. Those provisions have since been amended in certain respects, but not in a way that makes the reasoning of Hargrave J inapplicable to the present case. In those circumstances, and notwithstanding the subsequent judgment of Habersberger J in Y v Austin Health[9] which is referred to below, I was of the strong provisional view that I ought to follow the decision of Hargrave J unless persuaded that it was clearly wrong.[10] I raised this with Ms Papaleo. She was familiar with the judgment of Hargrave J and she acknowledged the point. She did not suggest that the decision of Hargrave J was wrong at all, much less clearly wrong. I myself was unable to see any error in the relevant reasoning of Hargrave J.
[9](2005) 13 VR 363.
[10]Engebretson v Bartlett (2007) 16 VR 417, 429 [63]. See also my judgment in Kinnersly v Johnson [2000] VSC 752 at [31] and footnotes 37 and 53.
Ms Papaleo did mention the observations that had been made by Hargrave J in AB[11] to the effect that Gillard J had had jurisdiction to make the order which Gillard J had made in 1998. Ms Papaleo also mentioned the further observation made by Hargrave J to the effect that, because Gillard J had had jurisdiction to make the order that his Honour had made, the actual removal of the sperm and associated tissue had been lawful in that case by virtue of s 44(5) of the Human Tissue Act 1982.[12] However, as Hargrave J explained, the order made by Gillard J was within jurisdiction only because the Supreme Court of Victoria had (subject to certain presently irrelevant exceptions) unlimited jurisdiction under s 85(1) of the Constitution Act 1975. But that did not mean that the order had been made in accordance with the law of Victoria. In truth, in the opinion of Hargrave J, it had not been so made.[13]
[11]AB v Attorney-General (n 1) 503 [105]-[108], 509 [145].
[12]Ibid, 510 [153].
[13]Cf Re H, AE [2012] SASC 146 (Gray J), esp at [42]–[50].
In AB Hargrave J further held that, even apart from s 44 and Part IV of the Human Tissue Act 1982, the Court would have had no power at common law or otherwise to make an order purporting to authorise a person to remove organs or tissue from the body of a deceased person.[14] In particular, his Honour held that no such order could lawfully have been made as an exercise of the powers of the Court as parens patriae,[15] or as an exercise of the general power of the Court to make an interlocutory order to preserve the subject matter of a proceeding.[16] Again, Ms Papaleo did not argue that there was any error in the reasoning or conclusions of Hargrave J in these respects. However, it was not necessary or desirable for me to form or express any view about what the position may have been in the absence of the relevant provisions of the Human Tissue Act 1982.[17] Hence I did not (and do not) do so.
[14]AB v Attorney-General (n 1), 506–508 [123]-[142].
[15]Ibid, 506-507 [129]-[130], 508 [142].
[16]AB v Attorney-General (n 1), 507-508 [131]-[142], esp at 508 [142].
[17]Cf Re H, AE [2012] SASC 146 (Gray J), esp at [3] and [13] and see also the articles referred to in footnote 1 of that judgment. See also James Edelmen, ‘Property Rights to our Bodies and their Products’ (2015) Vol 39(2) University of Western Australia Law Review, 47.
I have mentioned the judgment of Habersberger J in Y v Austin Health.[18]That judgment might be thought to be inconsistent with the reasoning and conclusions of Hargrave J in AB in relation to the effect of s 44 and Part IV of the Human Tissue Act 1982. However, as already indicated, I was of the view that, even on this urgent interlocutory application, I should follow the reasoning and conclusions of Hargrave J. I considered them to be the more persuasive. Moreover, in the last paragraph of the judgment of Habersberger J, it is stated that the rest of his Honour’s judgment had been written without his Honour being aware of the judgment of Hargrave J in AB. In that last paragraph, Habersberger J acknowledged that the judgment of Hargrave J in AB had ‘determined many of the debatable points considered by me in the above reasons’.
[18](2005) 13 VR 363.
In addition, it seemed to me that the relevant reasoning and conclusions of Hargrave J in AB were given further support by certain subsequent cases decided interstate, especially Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C;[19] Cresswell v Attorney–General (Qld);[20] and Chapman v South Eastern Sydney Local Health District.[21]
[19](2013) WASC 3 (Edelman J).
[20][2018] QSC 142 [90]–[91] (Brown J).
[21][2018] NSWSC 1231 (Fagan J), esp at [71] but see Re H, AE [2012] SASC 146 (Gray J).
Accordingly, I proceeded on the basis that, in Victoria, the question whether or not sperm and associated tissue (or any other tissue) may lawfully be removed from the body of a deceased person was to be determined, primarily at least, by reference to and in accordance with the Human Tissue Act 1982. In particular, where the body of the deceased was in a hospital, as in the present case, only a ‘designated officer’ for the hospital could authorise the removal: s 26 of the Human Tissue Act 1982. Hence, I took the view, for the purposes of this urgent, interlocutory application, that this Court could not stand in the shoes of the designated officer of the defendant Hospital, nor otherwise itself purport to authorise the removal of sperm and associated tissue from the body of the deceased. Nothing I have learnt since has caused me to doubt the correctness of that view.
As indicated above, I was also concerned as to whether any order of this Court for the removal of sperm from the deceased might be precluded by, or might be in conflict with, certain provisions of the Assisted Reproductive Treatment Act 2008.[22] That Act repealed and replaced the Infertility Treatment Act 1995. In AB Hargrave J had considered several difficult questions of law as to whether the Infertility Treatment Act 1995 stood in the way of the then plaintiff’s desire to make use of the sperm that had been removed from the body of her deceased husband.[23]
[22]In particular s 3 (definition of ‘assisted reproductive treatment’, ‘donor’, ‘donor sperm’, ‘donor treatment procedure’, ‘gametes’, ‘partner’, ‘ registered ART provider’ and ‘store’) 7, 8, 16, 35, 36, 37, 47 and 85.
[23]See also YZ v Infertility Treatment Authority 2015 VCAT 2655 (Morris J, President), in which the applicant was the same person as the plaintiff in AB.
In the end, I did not pursue this concern. In the very urgent circumstances, counsel for the plaintiff was not in a position to deal with it. Moreover, I was already dissuaded, by the matters to which I have already referred, from venturing to require or authorise the Hospital to carry out a removal procedure.
Nevertheless, I did make one further substantive order in this case. I ordered that Melbourne Health, by a designated officer, consider and decide, pursuant to Part IV of the Human Tissue Act 1982, as soon as practicable and by no later than 10.00am the next day, whether to authorise the removal of sperm and associated tissue from the body of the deceased. I also ordered that the parties have liberty to apply. Since the matter had proceeded by way of an urgent ex parte application in the Practice Court, it would of course have been open to the Hospital to apply instantly for the discharge of the injunctive order. Hence, that injunctive order, though mandatory in form, remained merely an interim or interlocutory order. In the event, the Hospital did not make any application for discharge of the injunctive order.
I made the injunctive order because I thought that there was a prima facie case that the Hospital had been wrong in law in so far as the Hospital had - notwithstanding the presence of the body of the deceased in the Hospital and notwithstanding the request made by the plaintiff to the Hospital - apparently declined to consider and decide, by its designated officer (or otherwise), whether or not to authorise the removal of sperm and associated tissue from the body of the deceased. Rather, the Hospital had apparently insisted that the plaintiff approach a court to seek authorisation for the carrying out of that procedure. As already mentioned, I was of the provisional view (and I remain of the provisional view) that, in the circumstances of this case, the sole repository of any power to authorise the proposed removal of the tissue was a designated officer of the Hospital. Further, I considered that there was a prima facie case that the statutory power of a designated officer to authorise the removal carried with it an implied statutory duty to consider whether to exercise that power, at least in circumstances where a person with a proper interest had made a request to the Hospital for its exercise.[24] Even if (despite public funding) hospitals in this State and their designated officers are properly to be regarded as private rather than public entities, the mere fact that the statutory power and the correlative putative statutory duty were vested in a private entity would not make the exercise or non-exercise of the power, or the performance or non-performance of the duty, immune from judicial review.[25] I further considered that it was sufficiently arguable that the plaintiff, who had made the relevant request to the Hospital, was a person with a proper interest to make that request and that in those circumstances, the putative statutory duty was owed to her. She was not only the ‘senior available next of kin’ within the meaning of s 26 of the Human Tissue Act 1982, but she was also the former domestic partner of the deceased. She wished to preserve the possibility of having a child by the use of his sperm. It was sufficiently arguable that she had standing to sue for the injunctive order that I made.[26]
[24]See and compare Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 and cases there cited.
[25]See Stephen Gageler, ‘The Legitimate Scope of Judicial Review: The Prequel’, (2005) 26 Aust Bar Review, 303, 308.
[26]See Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 59.
On the other hand, nothing in my order would have precluded the Hospital, by its designated officer, from taking into account any relevant provisions of the Assisted Reproductive Treatment Act 2008 in deciding whether or not it could, or should, authorise removal.[27]
[27]As to the provisions of the Assisted Reproductive Treatment Act 2008 (Vic) that might have been relevant, see footnote 22 above.
Accordingly, I made orders in the following form:
(1) The name of the defendant be corrected to ‘Melbourne Health’
(2)The plaintiff is authorised to issue this proceeding in Form 5C of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).
(3) The requirements of rules 5.03(1) and 8.02 of the Rules be dispensed with.
(4)It be declared that the plaintiff is the senior available next of kin of [the deceased], within the meaning and for the purposes of s 26 of the Human Tissue Act 1982 (Vic).
(5)The defendant (Melbourne Health), by a designated officer, shall consider and decide, pursuant to Part IV of the Human Tissue Act 1982 (Vic), as soon as practicable and by no later than 10:00am on Wednesday 27 March 2019, whether to authorise the removal of sperm and associated tissue from the body of [the deceased] which is presently at the Royal Melbourne Hospital in Melbourne.
(6) The parties have liberty to apply.
(7) The costs of this application are reserved.
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