Re Section 22 Of the Human Tissue And Transplant Act 1982 (WA)
[2022] WASC 52
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT Act 1982 (WA); EX PARTE A [2022] WASC 52
CORAM: HILL J
HEARD: 11 FEBRUARY 2022
DELIVERED : 11 FEBRUARY 2022
PUBLISHED : 21 FEBRUARY 2022
FILE NO/S: CIV 1116 of 2022
MATTER: IN THE MATTER OF SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT Act 1982 (WA)
EX PARTE
A
Applicant
Catchwords:
Practice and procedure - Ex parte application for order permitting removal and storage of spermatozoa and associated tissue from the body of applicant's de facto husband - De facto husband on life support - 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) required - Jurisdiction of court to make order sought
Legislation:
Coroners Act 1996 (WA)
Human Reproductive Technology Act 1991 (WA)
Human Tissue & Transplant Act 1982 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Order made permitting removal of spermatozoa and associated tissue upon death of applicant's de facto husband
Suppression order made
Category: B
Representation:
Counsel:
| Applicant | : | RJ Squires |
Solicitors:
| Applicant | : | Greenstone Legal |
Cases referred to in decision:
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
HILL J:
On the evening of 11 February 2022, I heard an urgent application for an order for the removal and storage of spermatozoa and associated tissue from the applicant's de facto, Mr B. At the time of the application, Mr B was on life support at Sir Charles Gairdner Hospital (SCGH).
The application was supported by an affidavit sworn by Mr Squires, the applicant's counsel, on 11 February 2022.
After hearing from Mr Squires, I made orders in terms of the application. 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. These are those reasons.
Factual background
The factual background to the application was set out in the affidavit of Mr Squires. During the course of the hearing, some additional information was conveyed to me by Mr Squires from the bar table, which in the circumstances of the application, I accepted and acted upon without insisting that the information be made the subject of affidavit or oral evidence.
The applicant and Mr B have been in a relationship for about 8 years and live together. Mr B is 36 years old.
On 30 January 2022, Mr B suffered a brain aneurism and was admitted to the intensive care unit of SCGH. Mr B has not regained consciousness and, at the time of the hearing, was on life support. The medical team at SCGH is waiting to receive consent from the applicant to turn off Mr B's life support.
The applicant has contacted Fertility Specialists of WA (FSWA) about the removal of Mr B's spermatozoa. FSWA is willing to perform the procedure if the court makes an order authorising the procedure.
The application is supported by the parents of Mr B who were in court with the applicant during the hearing.
Legislative background
Section 22 of the Human Tissue and Transplant Act 1982 (WA) (Act) is in Part 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 relevantly provides that:
(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)… ; or
(b)for use of the tissue for other therapeutic purposes or for medical or scientific purposes.
(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)… ; 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)… ;
(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 [they] 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.
'Senior available next of kin' is defined in s 3 of the Act and relevantly includes, in the case of a person other than a child, as the first priority the spouse or de factor partner with whom the person is living. 'De facto' is not defined in the Act and has the meaning given to that term by s 13A of the Interpretation Act 1984 (WA).
Section 23 of the Act requires the coroner to give consent to the removal if the designated officer believes the death of the person is or may be a reportable death under the Coroner's Act. I was satisfied on the facts of this case, that on the death of Mr B, it would not be a reportable death.
Jurisdiction of the court to make the order sought
Previous decisions of this court are authority for the proposition that the court has jurisdiction under either s 22 of the Act itself[1] or O 52 r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) (Rules) together 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.[2]
[1] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3 [4] ‑ [19].
[2] 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 these decisions to be plainly wrong, which I do not, I am required to follow these decisions. On this basis, I was satisfied that the court had jurisdiction to make an order of the type sought. I was also satisfied that these decisions provided support for an order being made to authorise a legally qualified medical practitioner to undertake the removal of tissue, provided the conditions stipulated by s 22 for the removal of tissue are met.[3]
[3] S v Minister for Health (WA) [25]; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [1], [5]; Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [19].
Disposition
Before I can make an order under the Act, I am required to be satisfied of the following matters:
(a)Mr B's dead body had been brought into SCGH or Mr B had died in SCGH;
(b)spermatozoa is 'tissue';
(c)the proposed removal of the spermatozoa and associated tissue was for 'medical or scientific purposes'; and
(d)the 'senior available next of kin' consented to the removal of the spermatozoa.
I am satisfied that the applicant is the de facto partner of Mr B (taking account of the factors in s 13A(2) of the Interpretation Act) and accordingly is the 'senior available next of kin' as defined in s 3 of the Act. The word 'tissue' as used in s 22 includes spermatozoa by reason of the definition of 'tissue' contained in s 3 of the Act. I accept that the removal of spermatozoa for the purposes of storage for later use in IVF procedures constitutes a 'medical purpose' within the meaning of s 22(1)(b).[4]
[4] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C [16(2)].
On this basis, I was satisfied of each of the matters, apart from the first. It was not in dispute that, at the time of the hearing, Mr B was still alive although on life support.
Mr Squires referred me to and relied on the decision of Derrick J in Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H.[5] In that case, Derrick J made orders that the relevant medical practitioner or designated officer only had permission to remove spermatozoa and associated tissue once the person concerned was in fact deceased, which would occur shortly after life support equipment was turned off. I was satisfied, having considered this decision, that it was appropriate to make similar orders to those made by Derrick J, namely orders that would come into effect on the death of Mr B.
[5] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H [2020] WASC 99.
In this case, an application was required to be made to the court for an order under s 22 of the Act because a private fertility clinic was going to undertake the removal of the spermatozoa. In correspondence from the clinic, they drew attention to the fact they were not governed by s 22 of the Act, but the Human Reproductive Technology Act 1991 (WA). Pursuant to s 22 of the Human Reproductive Technology Act 1991, consent was required to be obtained from Mr B which had not and could not occur.[6] For this reason, FSWA indicated they would only undertake the task if a court order were obtained.
[6] Affidavit of Rein Jozsef Squires sworn 11 February 2022 'RJS-2'.
At the conclusion of the hearing, I made orders in the following terms:
1.There be permission for Dr Roger Perkins of Fertility Specialists of WA, another legally qualified medical practitioner or the designated officer of Sir Charles Gairdner Hospital within the meaning of s 4 of the Human Tissue and Transplant Act 1982 (WA) (HTT Act) to remove forthwith upon the death of [Mr B] in Sir Charles Gairdner Hospital spermatozoa and associated tissue from the body of [Mr B] and such spermatozoa and associated tissue shall be stored in accordance with the HTT Act.
2.The spermatozoa and associated tissue so removed and stored not be used for any purpose without an Order of this Court.
3.No names of the parties to the proceedings or of [Mr B] be published until further order of this court.
In making these orders, I was aware they were limited in their operation and did not permit the spermatozoa and associated tissue removed from the body of Mr B to be used in any way. The effect of my orders was restricted to permitting something to happen which, if it did not happen urgently after the death of Mr B, would forever preclude the applicant seeking to make use of Mr B's spermatozoa in an attempt to conceive a baby.
In making order 3, I was conscious of the need for the court to be cautious in making orders suppressing the names of parties to proceedings or the names of people associated with the proceedings. However, similarly to Martin CJ in Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M[7] and Derrick J in Re Section 22 of the Human Tissue and Transplant Act 1982(WA); Ex parte H,[8] I concluded that it was in the public interest for people in the position of the applicant to be able to come to court without fear their privacy will be invaded at a time of obvious stress and trauma.
[7] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [8].
[8] Re Section 22 of the Human Tissue and Transplant Act 1982(WA); Ex parte H [27].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
21 FEBRUARY 2022
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