P v Melbourne Health - [2019] VSC 500

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v Melbourne Health

Details

AGLC: P v Melbourne Health [2019] VSC 500
Case: [2019] VSC 500
Decision Date: 26 March 2019: Revised reasons published 25 July 2019

CaseChat Overview and Summary

The applicant, a domestic partner of a deceased man, sought an order allowing a medical practitioner to remove spermatozoa and associated tissue from the deceased's body. This was to be done for the purpose of in vitro fertilisation. The case was heard in the Supreme Court of Victoria. The legal issues before the court were whether it had the power to grant the requested order and, if not, what steps should be taken to facilitate the process within the legal framework provided by the Human Tissue Act 1982.

The court determined that it did not have the authority to grant permission for the removal of spermatozoa and associated tissue from the deceased's body. The power to authorise such removal was vested exclusively in the repositories nominated under the Human Tissue Act 1982. The court concluded that it lacked the jurisdiction to issue such an order itself. Instead, the court ordered that the designated officer of the hospital promptly consider exercising the statutory power under the Human Tissue Act 1982. Additionally, the court made a declaration regarding an ancillary factual matter.

No further orders were made by the court. The primary focus was on directing the hospital's designated officer to consider the statutory authorisation for the tissue removal. The court's role was to clarify its jurisdictional limitations and to ensure that the statutory process was initiated without delay.

Orders