Re Section 22 Of the Human Tissue And Transplant Act 1982 (WA)
[2022] WASC 477
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT ACT 1982 (WA); EX PARTE P [2022] WASC 477
CORAM: FIANNACA J
HEARD: 11 DECEMBER 2022
DELIVERED : 11 DECEMBER 2022
PUBLISHED : 21 JUNE 2023
FILE NO/S: CIV 2327 of 2022
EX PARTE
P
Applicant
Catchwords:
Practice and procedure - Ex parte application by wife for order permitting removal and storage of spermatozoa and associated tissue from the body of her husband - Husband deceased - Whether order of court granting permission for the removal and storage of spermatozoa and associated tissue from a deceased person pursuant to s 22 of the Human Tissue and Transplant Act 1982 (WA) is required - Jurisdiction of court to make order sought
Legislation:
Coroners Act 1996 (WA)
Human Tissue and Transplant Act 1982 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Order made permitting removal of spermatozoa and associated tissue
Suppression order made
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | In Person |
Case(s) referred to in decision(s):
In the Matter of Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte A [2022] WASC 52
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H [2020] WASC 99
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [2008] WASC 276
S v Minister for Health (WA) [2008] WASC 262
FIANNACA J:
On the afternoon of 11 December 2022, I heard an urgent application for an order for the removal and storage of spermatozoa and associated tissue from the body of the applicant's husband, Mr P, who had passed away the day before and was being kept at the State Mortuary in Sir Charles Gairdner Hospital (SCGH).
The purpose of the order sought was to enable the applicant, Ms P, at some point in the future, and provided further necessary orders are made, to make use of the spermatozoa removed from her husband to attempt to conceive a baby. The application was made by the applicant in person. She did not have legal representation.
The application was supported by the oral evidence under affirmation of two witnesses, namely the applicant and Dr Tamara Jane Hunter, and information provided by Ms Rachel Whalen, Coroner's Registrar, which I did not require to be given under oath or affirmation. The applicant appeared by video‑link. Dr Hunter gave evidence, and Ms Whalen provided information, by telephone. Dr Hunter and Ms Whalen made themselves available at short notice, for which the court is grateful.
At the conclusion of the hearing, I made orders in the terms stated at the end of these reasons. At the time of making the orders, I gave very brief oral reasons for doing so and said that I would subsequently publish more detailed reasons for my decision, which would incorporate the oral reasons. These are my reasons.
Factual background
The applicant gave evidence of the following facts, which included information provided to the applicant by police, paramedics and a friend concerning her husband's death. There is no reason to doubt the correctness of that information.
The applicant and Mr P had been in a relationship for nearly seven years. They married in November 2021. Mr P was 29 years old at the time of his death. Ms P is 28 years old. They have two children, both boys, the first being 3 years old, and the second being a 9-week-old baby.
The applicant and Mr P were living in Bunbury. However, at the time of his death, Mr P was staying at his parents' home in a Perth suburb.
In the early hours of Saturday, 10 December 2022, Mr P died suddenly as a result of a tragic accident at his parents' home. He severed an artery on a broken window and bled to death very quickly. The incident happened around 5.00 am to 6.00 am, although the police could not be sure of the time. Mr P was not found until 3.00 pm that day, when a friend went to the house, at the applicant's request, to check on him. He was deceased when paramedics arrived. He was taken to SCGH, where his body was placed in the State Mortuary.
The applicant said she wished to have sperm removed from Mr P and stored for a later date, to be used to assist her to conceive another child, should she wish to do so. She said that the prospect of having a third child was a matter she had discussed with Mr P, who was aware of her desire to do so. Although the applicant had also indicated to Mr P that she wished to have a daughter, it would appear the emphasis was on having a family of three children. That desire remains, notwithstanding the recent birth of their youngest child.
I asked the applicant if she had ever discussed with Mr P the prospect of removing spermatozoa from his body, if he were to die, for the purpose of further conception by the applicant. She said that, although they had never thought there would be a need for it, she and Mr P had discussed the matter after watching a documentary on the subject. She said Mr P had told her, in effect, that, if he were to die, it would be for her to decide. The applicant said that the memory of that conversation was what prompted her to pursue the procedure.
The applicant also said that, although Mr P's mother was in no state to speak, his father had given his consent to the applicant for the procedure. This was conveyed to the applicant through her mother.
The applicant said she had been in contact with a number of doctors over a period of about eight hours to have the procedure done. Given the urgency of proceeding while the spermatozoa were viable, the applicant's concern was to preserve the possibility of using the spermatozoa in the future. She had not approached a fertility clinic, but, after speaking with a number of doctors, Dr Hunter, who works for a fertility clinic, was identified as a doctor who was available and able to perform the procedure. It appears that there was no doctor available at SCGH with relevant experience to perform the procedure.
Dr Hunter gave evidence that she is an obstetrician/gynaecologist with subspeciality qualifications in fertility. She works at a fertility clinic in the metropolitan area and has the skill and experience to do a posthumous collection of spermatozoa. She was approached by a fertility nurse who works at a fertility clinic where Dr Hunter had worked previously. The nurse said she had been contacted via the after‑hours emergency phone to find somebody to do a posthumous collection of spermatozoa. The clinician who was on call for that clinic did not have the relevant skill set, hence the call to Dr Hunter, to see whether she could assist. The nurse provided Dr Hunter with telephone numbers for the applicant's sister and the Coroner's Office.
Dr Hunter said she was willing to perform the procedure. She said she would attend the mortuary as the clinician performing the procedure, and she would be accompanied by an embryologist from her laboratory who has relevant experience and the necessary equipment to store any spermatozoa collected. The spermatozoa would then be stored at the clinic where Dr Hunter works.
Dr Hunter was familiar with s 22 of the Human Tissue and Transplant Act 1982 (WA) (the Act), which I will discuss below. She said she consulted Professor Roger Hart, who she said is the current adviser to the 'reproductive technology unit' and probably has the most experience in dealing with these cases in Western Australia. Dr Hunter was given to understand that she could do the sperm collection at the mortuary if she was given approval by a designated officer referred to under s 22 of the Act. As I will discuss below, that is consistent with the interpretation of s 22 of the Act in previous authorities. However, the hospital was not able to identify who the designated officer was for the purpose of obtaining authorisation for the procedure.
In the absence of authorisation from a designated officer, Dr Hunter was unable perform the procedure unless the court made an order authorising the procedure.
I will deal below with the information provided by Ms Whalen. It is appropriate first to deal with the legislative framework and case law.
Legislative framework
As I explain below, s 22 of the Act is relevant to the determination of the application. That section is in pt III of the Act, which is headed 'Donations of tissue after death'. Section 22 is headed 'Designated officer may authorise removal of tissue from bodies in hospital' and provides, relevantly, as follows:
(1)A designated officer for a hospital may, subject to and in accordance with this Part, authorise the removal of tissue from the body of a person who has died in 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; or
(c)...
(2)A designated officer for a hospital may authorise 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)where, after making inquiries, the designated officer is satisfied that the deceased person during the person's lifetime expressed the wish for, or consented to, the removal after death of tissue from the body of the deceased person for the purpose or a use referred to in subsection (1) and had not withdrawn the wish or revoked the consent; or
(b)where, after making inquiries, the designated officer 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 the purpose or a use referred to in subsection (1) and the designated officer is satisfied that the senior available next of kin consents to the removal of tissue from the body of the deceased person for the purpose or a use referred to in subsection (1).
(3)The authority of a designated officer to authorise the removal of tissue from the body of the deceased person under this section is restricted -
(a) in the case of the circumstances referred to in subsection (2)(a), by the expressed terms of the wishes or consent of the deceased person;
(b) in the case of the circumstances referred to in subsection (2)(b), by the consent of the senior available next of kin,
both as to the tissue which may be removed and as to the purpose or use of the tissue.
(4) The senior available next of kin of a person may make it known to a designated officer at any time when the person is unconscious before death that the senior available next of kin 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 shall not act on such an indication if the person recovers consciousness.
(5)Where there are 2 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, an objection by 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.
Section 23 of the Act is also relevant to the determination of the application. It provides, relevantly, as follows:
(1) If the designated officer for a hospital has reason to believe that the death of a person is or may be a reportable death, the designated officer shall not, under and in accordance with section 22, authorise the removal of tissue from the body of the deceased person unless the coroner has given his consent to the removal.
(2)A coroner may give a direction either before or after the death of a person that his consent to the removal of tissue from the body of the person after the death of the person is not required and, in that event, subsection (1) does not apply to or in relation to the removal of tissue from the body of the person.
(3) A consent or direction by a coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(4) A consent or direction may be given orally by a coroner, and if so given, shall be confirmed in writing.
By virtue of s 4 of the Act, a 'designated officer' is a medical practitioner who has been nominated to be a designated officer of a hospital by the chief medical administrator of the hospital, or, where a chief medical administrator is not readily identifiable for a hospital, a medical practitioner nominated by the Chief Health Officer as the designated officer of that hospital.
Enquiries were made of SCGH prior to the hearing to identify the designated officer of that hospital. The hospital was not able to identify the designated officer.
'Tissue' is defined in s 3 of the Act to include a substance extracted from, or from a part of, the human body.
'Senior available next of kin' is defined in s 3 of the Act to mean, relevantly:
(b)in relation to a person other than a child, … the first in order of priority of the following persons who is available at the time -
(i)…
(ia)the spouse, or de facto partner who has attained the age of 18 years, of the person;
(ii)…
(iii)a parent of the person;
(iv)…
'Reportable death' is defined in s 3 of the Act to mean a reportable death within the meaning of the Coroners Act 1996 (WA).
Jurisdiction of the court to make the order sought
As Hill J noted in In the Matter of Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte A,[1] previous decisions of this court are authority for the proposition that the court has jurisdiction under either s 22 of the Act itself[2] or O 52 r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) (the Rules) in conjunction with s 22 of the Act to make an order of the type sought by the applicant, provided the conditions stipulated in s 22 for the removal of tissue are met.[3]
[1] In the Matter of Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte A [2022] WASC 52 [12].
[2] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3 (Ex parte C) [4] ‑ [19]. See also Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H [2020] WASC 99 (Ex parte H) [19].
[3] S v Minister for Health (WA) [2008] WASC 262 [5] ‑ [18]; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [2008] WASC 276 [5] ‑ [6].
Unless I consider those decisions to be plainly wrong, which I do not, I am required to follow the decisions. That is not to say that the pathway that relies on O 52 r 2 and r 3 of the Rules is not without difficulty, as was noted by Edelman J in Ex parte C. I have had regard to his Honour's erudite analysis of the legal principles and the issues that arise upon that pathway. As in that case, and in other cases that have dealt with applications of this kind, this case involved circumstances of extreme urgency, and a decision needed to be made almost immediately. In those circumstances, I was satisfied on the basis of the reasoning in the previous authorities that the court has jurisdiction to make an order of the type sought, and that the jurisdiction is to be exercised subject to s 22 and s 23 of the Act. That is, before an order can be made, it is necessary for the court to be satisfied that the conditions in those sections have been met on the available evidence.
Reasons
Accordingly, having regard to the terms of s 22 and s 23 of the Act and to the circumstances of this case, before I could make an order authorising the removal of spermatozoa from Mr P's body, I was required to be satisfied of the following matters:
1.Mr P's dead body had been brought into SCGH;
2.spermatozoa are 'tissue';
3.the proposed removal of the spermatozoa and associated tissue was for 'medical or scientific purposes';
4.during his lifetime, Mr P had expressed the wish for, or consented to, the removal after his death of spermatozoa from his body for the purpose of the applicant using it to assist her to become pregnant, and he had not withdrawn the wish or revoked the consent before his death;
5.alternatively, there was no reason to believe that Mr P had expressed an objection to the removal of spermatozoa from his body after his death for the purpose of the applicant using it to assist her to become pregnant;
6.the 'senior available next of kin' consented to the removal of the spermatozoa; and
7.if Mr P's death was a reportable death, the Coroner consented to the procedure.
In respect of the first matter, the evidence establishes that Mr P's body was brought into SCGH after he was deceased.
In respect of the second matter, spermatozoa are 'tissue' for the purposes of s 22, as they constitute a substance that can be extracted from the human body.[4]
[4] Ex parte C [16].
In respect of the third matter, I am satisfied that the purpose for which the spermatozoa is proposed to be removed, that is, to be stored in order to be used by the applicant at a later time to assist her to become pregnant through IVF procedures, is a medical purpose.[5]
[5] Ex parte C [16].
In respect of the fourth and fifth matters, which are in the alternative, I accept, based on the applicant's evidence, that there is no reason to believe that the deceased has ever expressed an objection to the removal after his death of spermatozoa from his body. That is sufficient to satisfy that requirement of s 22, although I would also be satisfied, based on the applicant's evidence, that, during his lifetime, Mr P had expressed his consent to the removal of spermatozoa from his body after his death for the purpose of the applicant using it as proposed, and he had not revoked the consent before his death.
In respect of the sixth matter, the applicant is the senior available next of kin, and she has consented to the procedure. I note that neither of the next of kin in the next category of priority, being Mr P's parents, gave evidence or was present at the hearing. However, on the basis of the applicant's evidence, notwithstanding that it was hearsay, I would have been satisfied that Mr P's father consented to the procedure. The view of Mr P's mother was not known, as she was not in a fit state of mind to discuss the matter prior to the hearing. In any event, the applicant's consent is sufficient to satisfy the sixth requirement listed above.
In respect of the last requirement, enquiries were made by my Associate, at my direction, with the investigating police officer and the Coroner's Office. Both sources confirmed Mr P's death was a reportable death. As I noted earlier, Ms Whalen from the Coroner's Office made herself available during the hearing by audio‑link. She confirmed on the record that Mr P's death was a reportable death and had been reported to her. She said, and I accept, that she has been appointed as a delegate of the State Coroner and was authorised to give consent for the removal of spermatozoa from Mr P's body, which she had done.
It follows that the conditions for the making of the order sought by the applicant were met. The order would authorise the removal of spermatozoa from Mr P's body to preserve the possibility of the applicant seeking in the future to make use of the spermatozoa in an attempt to conceive a baby. As was noted by Derrick J in Ex parte H, such an order permits something to happen which, if it did not happen urgently after the deceased's death, would forever preclude the applicant seeking to make use of the deceased's spermatozoa in an attempt to conceive a baby.[6] For that reason, having regard to the background related by the applicant, I considered it appropriate to make the order. The order does not authorise the use of the spermatozoa for reproductive purposes. That will require a further application to this court.
[6] Ex parte H [26].
Future approach to such matters
As I noted at the time of the hearing, it is regrettable that a designated officer was not available to authorise Dr Hunter to carry out the relevant procedure. Dr Hunter gave evidence that she would have acted on that authority.
In Ex parte C, Edelman J said:[7]
The [Minister for Health] will have a copy of these reasons and will have the opportunity to be represented in any future application in relation to implantation of the removed spermatozoa. One matter which should be brought to the attention of the Minister is how hospitals (including the State Mortuary) might deal with these issues more expeditiously.
The Human Tissue and Transplant Act establishes a relatively straightforward regime. In this case the hospital was aware of, and had, a designated officer under the Act. Section 4 of the Act provides that the designated officer may, in writing, delegate any of his or her powers (other than the power to delegate). The authorisation for the removal of the spermatozoa from Ms C's deceased husband could have been given by the authorised officer, or someone delegated to make the decision (and inquiries of Ms C) on his behalf.
In future, the most efficient procedure to follow in an urgent case such as this would be for any request for extraction of spermatozoa to be directed by the hospital to the designated officer who can consider the matters raised in s 22 of the Human Tissue and Transplant Act which I have described above. If the designated officer is unavailable he or she can, in writing (by email or fax) delegate the power to another officer. The delegation can occur beforehand or at the time of the request.
[7] Ex parte C [23] ‑ [24].
His Honour's comments in the last two paragraphs were endorsed by Derrick J in Ex parte H.[8] I also respectfully endorse the comments.
[8] Ex parte H [18].
Further, if it has not already occurred, the approach outlined should be brought to the attention of the Minister with a view to ensuring that hospitals have procedures in place to enable them to deal with relevant requests expeditiously. While requests of the kind made by the applicant might arise infrequently, it is nevertheless desirable for there to be a delegated officer identifiable and available at all times, as proposed by Edelman J, so that such requests can be dealt with expeditiously. That did not occur in this case, which necessitated the application to this court.
Conclusions
In all of the circumstances, I concluded that it was appropriate to make the orders set out below. I made it clear in my brief oral reasons that the orders did no more than permit the procedure to be carried out for spermatozoa and associated tissue to be removed from Mr P's body, and stored appropriately. Before anything further can be done with the spermatozoa and associated tissue, a further order of the court will be required.
The orders below include a non‑publication order in respect of the names of the parties to the proceedings and Mr P. I came to the view that it was appropriate, as has been the case in other similar cases, that there be no publication of the names of the applicant and the deceased until further order of the court, so as to protect the privacy of the applicant and others who may be involved in the matter. I was conscious of the need for the court to be cautious in making such orders, but I concluded that it was in the public interest for people in the applicant's position to be able to come to court without fear that their privacy will be invaded at a time of grief. For the same reasons, I am also of the view that it is in the public interest to anonymise the name of the fertility clinic in the orders reproduced below.
Orders
At the conclusion of the hearing, I made the following orders:
1.There be permission for Dr Tamara Jane Hunter of [named fertility clinic], or another legally qualified medical practitioner authorised by the designated officer of Sir Charles Gairdner Hospital within the meaning of s 4 of [the Act], to remove, at the State Mortuary or such other place in Sir Charles Gairdner Hospital where the body of [Mr P] is held, spermatozoa and associated tissue from the body of [Mr P], and such spermatozoa and associated tissue shall be stored in accordance with [the Act].
2.The spermatozoa and associated tissue so removed and stored is not to be used for any purpose without an order of this court.
3.No names of the parties to the proceedings or of [Mr P] be published until further order of this court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
21 JUNE 2023
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