Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte H
[2020] WASC 99
•25 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SECTION 22 OF THE HUMAN TISSUE AND TRANSPLANT ACT 1982 (WA); EX PARTE H [2020] WASC 99
CORAM: DERRICK J
HEARD: 19 MARCH 2020
DELIVERED : 19 MARCH 2020
PUBLISHED : 25 MARCH 2020
FILE NO/S: CIV 1407 of 2020
EX PARTE
H
Applicant
AND
MINISTER FOR HEALTH (WA)
Respondent
Catchwords:
Practice and procedure - Ex parte application under O 52 r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) and s 22 of the Human Tissue and Transplant Act 1982 (WA) by wife for order permitting removal and storage of spermatozoa and associated tissue from the body of her husband - Husband on life support with no brain stem activity - 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 - Failure by applicant to establish husband deceased for purposes of s 22 of the Human Tissue and Transplant Act 1982 (WA) - Distinguishing order for use of material from orders for removal and storage of material
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 husband
Suppression order made
Category: B
Representation:
Counsel:
| Applicant | : | Ms A S Rogers |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Abigail Rogers Barristers & Solicitors |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C v Minister for Health [2013] WASC 3
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
DERRICK J:
Introduction
On the evening of 19 March 2020 I heard an urgent application seeking an order for the removal and storage of spermatozoa and associated tissue from the applicant's husband, Mr W. At the time of the application Mr W had no brain stem activity and was on life support at Fiona Stanley Hospital (FSH).
Although the Minister for Health was named as a respondent to the application, given that the application was requested to be heard, and was listed for hearing, on an urgent basis the Minister had not been served with the application at the time of the hearing. Accordingly, I heard the application ex parte.
The purpose behind the order being sought was to enable the applicant, at some point in the future and provided necessary further orders were made, to make use of the spermatozoa removed from her husband to attempt to conceive a baby.
The application was supported by an affidavit sworn by Ms Abigail Rogers, the applicant's counsel, on 19 March 2020. The application was also supported by a number of other documents provided to the court by Ms Rogers.
Ultimately, after hearing from Ms Rogers, I made orders in terms that I will refer to in due course. At the time of making the orders I gave very brief oral reasons for doing so. I was not able to give more detailed reasons due to the speed with which the application had been brought before me. These are my more detailed reasons for making the orders that I did.
The terms of the orders sought
By the application the precise terms of the orders sought were as follows:
1.That there be permission for a legally qualified medical practitioner or the designated officer of the Fiona Stanley Hospital within the meaning of the Human Tissue and Transplant Act 1982 (WA) forthwith to remove spermatozoa and associated tissue from the body of [Mr W] and such spermatozoa and associated tissue shall be stored in accordance with the Human Reproductive Technology Act 1991 (WA);
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 the deceased [Mr W] be published until further order of this court.
The facts
The affidavit of Ms Rogers, the other documents provided to the court in support of the application, and some additional non‑contentious information conveyed to me by Ms Rogers from the bar table, which in the circumstances of the application I accepted and acted upon without insisting on the information being made the subject of affidavit or oral evidence, revealed the position to be as follows.
The applicant had been in a relationship with Mr W for 12 years. They had been married for about five years. They have no children.
On 17 March 2020 Mr W attempted to commit suicide.[1] As a result of his attempt he had no brain stem activity, or in other words, brain function. He was on life support at FSH. The proposal was to turn the life support equipment off on the morning of 20 March 2020.
[1] In her affidavit Ms Rogers deposed to Mr W as having 'committed suicide' despite the fact that he was at the time of the hearing of the application on life support. Ms Rogers' assertion that Mr W had committed suicide was, I infer, based on her understanding, referred to further below, that Mr W was 'legally deceased'.
The applicant and Mr W had planned to commence a family together. They had discussed their plans for having children in front of others. They were undertaking fertility treatment so as to enable them to have children. They were doing so under the care of Dr Richard Murphy at Fertility Specialists of Western Australia (FSWA). They had both signed an Intrauterine Insemination Procedure Consent (the Consent). The applicant had signed the Consent on 26 February 2020. Mr W had signed the Consent on 3 March 2020.
In a note written by Mr W for the applicant prior to his suicide attempt Mr W stated:
P.S. Please don't think this has anything to do with our plans to have kids. It doesn't, I really wanted that. It's everything else.
At around 10.00 am on 18 March 2020 Ms Rogers spoke to Dr Murphy. Dr Murphy advised Ms Rogers that Dr Trent Barrett, the head of Urology at FSH, and his team were ready to assist with harvesting viable sperm up to 36 hours after Mr W's death but ideally within 24 hours of his death. Ms Rogers had been further advised by Dr Murphy that the gametes obtained from the harvesting procedure would be stored at FSWA's facility.
On 17 March 2020 Dr Bart de Keulenaer, an Intensive Care Unit consultant at FSH, contacted the State Coroner's office and spoke to Mr Richard Hurley. Mr Hurley informed Dr de Keulenaer, in substance, that consent had been given by a person with delegated authority of the State Coroner under s 10 of the Coroners Act 1996 (WA), to the extraction of Mr W's spermatozoa once Mr W was deceased.[2]
[2] I derived this information from a combined reading of an email sent by Ms Cathy Shaw, the Manager, Medico‑Legal Service, FSH Hospitals Group to Ms Rogers at 4.16 pm on 19 March 2020 and par 11 of the written submissions filed by Ms Rogers on behalf of the applicant in support of the application. On 20 March 2020 the court was provided by Ms Rogers with the State Coroner's delegate's written confirmation of the previously given oral consent.
The application had the full support of Mr W's mother, Ms HT. Ms HT had indicated her complete agreement to the harvesting procedure.
The relevant legislation
The application was made in reliance on s 22 of the Human Tissue and Transplant Act 1982 (WA) (Act). Section 22, so far as was relevant to the application, provides 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).. ; 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)… ;
(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.
Section 23 of the Act was also relevant to the determination of the application. Section 23 relevantly provides 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.
During the hearing of the application I asked counsel whether she could explain to me why it was necessary for an application to be made to the court for an order giving permission to the designated officer for FSH to exercise a power that was given to him or her by s 22 of the Act. Counsel's response was, in effect, that regardless of the terms of s 22 FSH was erring on the side of caution 'in terms of [its] legal standing' and consequently required the court's approval to the exercise by the designated officer of the power given to him or her before the designated officer would exercise that power.[3]
[3] ts 8 ‑ 9, 19 March 2020.
In asking counsel the question that I did, I was conscious of the statements made by Edelman J in relation to the issue in Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C.[4] Like Edelman J I do not, in light of the terms of s 22, see any necessity for applications of this type to be made to the court. I respectfully endorse the following comments made by Edelman J in Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C:[5]
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.
[4] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [2013] WASC 3 [11], [22] ‑ [25].
[5] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [23] ‑ [24].
The court's jurisdiction to make an order of the type sought
The decisions in S v Minister for Health (WA)[6] and Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M[7] are authority for the proposition that O 52 r 2 and r 3 of the Rules of the Supreme Court 1971 (WA) (RSC) when read with s 22 of the Act provide the court with the jurisdiction 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. Further the decision in Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C[8] would appear to be authority for the proposition that s 22 of the Act itself provides the court with jurisdiction to make an order of the type sought.[9] I was required to follow this line of decisions unless I considered them to be plainly wrong. I did not consider it to be plainly wrong to conclude that O 52 r 2 and r 3 of the RSC when read with s 22 of the Act provided the court with jurisdiction to make an order of the type sought by the applicant when the conditions stipulated by s 22 for the removal of tissue are met. I was therefore satisfied that the court did have jurisdiction to make an order of the type sought.
[6] S v Minister for Health (WA) [2008] WASC 262 [5] ‑ [18].
[7] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [2008] WASC 276 [5] ‑ [6].
[8] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C [4] ‑ [19].
[9]Although Edelman J refrains from concluding that O 52 r 3 provides the court with the jurisdiction to make an order of the type sought and appears to accept that the necessary jurisdiction can be found in s 22 of the Act, his Honour's reasons do not, at least on my reading of them, clearly reveal the basis for his Honour's view that s 22 does confer on the court the necessary jurisdiction.
I was also satisfied that the decisions referred to in the previous paragraph provided support for an order being made in terms conferring authority upon not only the designated officer but also a legally qualified medical practitioner, provided the conditions stipulated by s 22 for the removal of tissue are met.[10]
[10] 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]. The making of an order in such terms is consistent with s 24(1) of the Act.
The orders made
In light of the terms of s 22 and s 23 of the Act, before I could make the first of the orders sought by the applicant I was required to be satisfied of the following matters:
1.Mr W's dead body had been brought into FSH or Mr W had died in FSH;
2.Spermatozoa is 'tissue';
3.The proposed removal of the spermatozoa and associated tissue was for 'medical or scientific purposes';
4.The designated officer would, after making inquiries, have no reason to believe that Mr W had expressed an objection to the removal after his death of spermatozoa and associated tissue from his body for 'medical or scientific purposes' and that the designated officer would be satisfied that the 'senior available next of kin' consented to the removal of the spermatozoa for that purpose; and
5.Given that the death of Mr W may be 'a reportable death' within the meaning of the Coroner's Act, that the State Coroner or someone to whom the power to give consent had been delegated by the State Coroner under s 10 of the Coroners Act, had given consent to the removal of the spermatozoa and associated tissue from Mr W.
The applicant was 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. Further, the power of the designated officer to remove spermatozoa for the purposes of storage for later use in IVF procedures constitutes a 'medical purpose' within the meaning of s 22(1)(b).[11] Accordingly, in light of the established facts to which I have referred, and having heard the submissions of Ms Rogers, I was satisfied of the second to fifth of the matters specified in the preceding paragraph. What I was not, however, satisfied of by the end of the hearing of the application was that Mr W's 'dead body' had been brought into FSH or that Mr W had 'died' in FSH. Although Ms Rogers told me from the bar table, in substance, that Mr W was, given the absence of any brain stem activity, viewed by medical staff at FSH to be deceased, and that her understanding was that Mr W was 'legally deceased',[12] I was not satisfied on the information before me that a person who was on life support was a person who had died in FSH, or was a person whose dead body had been brought into FSH, within the meaning of s 22(1). This was not a question that had arisen for consideration in S v Minister for Health (WA), Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M or Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte C.[13]
[11] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C [16(2)].
[12] ts 2 ‑ 6, 19 March 2020.
[13] In the course of her submissions counsel did not draw my attention to s 24(2) of the Act. The terms of this section arguably support the contention that a person who has no brain stem activity but is on life support (that is, whose respiration and circulation of blood is being maintained by artificial means), and in respect of whom the declaration specified in the section has been made, is a person who has died in hospital or whose dead body has been brought into hospital within the meaning of s 22(1). However, given that I did not receive the benefit of argument on the point I refrain from expressing any concluded view on the matter. In any event, there was no evidence before me that the declaration specified in the section had been made in respect of Mr W.
Given that I was not satisfied that Mr W was in fact deceased as required by s 22(1) I could not make an order in the terms sought by the applicant. If I had made the order in the terms sought I would be giving permission to a legally qualified medical practitioner or the designated officer to undertake the extraction procedure immediately (while Mr W was on life support) in circumstances where I was not satisfied that an essential pre‑requisite to the exercise of the powers under s 22, namely that Mr W was dead, had been met.
In the situation that presented itself to me, one option was to adjourn the hearing of the application to some time later that night to give Ms Rogers time to research and consider, and if appropriate make further submissions in relation to, the question whether Mr W's status permitted a conclusion that he was in fact deceased for the purpose of s 22(1). However, there seemed to me to be little point in going down this path given that it was proposed to turn Mr W's life support equipment off the next morning after which time there could obviously not be any issue as to his status for the purposes of s 22(1). Another option that I considered was to adjourn the hearing of the application until sometime after Mr W's life support equipment had been turned off (that is, adjourn the hearing of the application to some time on 20 March 2020). However, I was concerned to avoid, if at all possible:
1.adding to the trauma and anguish that the applicant was no doubt already experiencing by unnecessarily delaying the final resolution of the application; and
2.increasing the delay between the time that Mr W's life support equipment was turned off and the undertaking of the procedure to extract his spermatozoa and associated tissue.
Ultimately, I decided that the best approach was to make an order which by its terms made it abundantly clear that the legally qualified practitioner or the designated officer only had permission to remove spermatozoa and associated tissue from Mr W once Mr W was in fact deceased (which on what was before me, and as I stated to counsel, I considered would be shortly after the time that the life support equipment was turned off).[14] I therefore made orders in the following terms:
1.There be permission for a legally qualified medical practitioner or the designated officer of the Fiona Stanley Hospital within the meaning of s 4 of the Human Tissue and Transplant Act 1982 (WA) to remove forthwith upon the death of [Mr W] in Fiona Stanley Hospital spermatozoa and associated tissue from the body of [Mr W] and such spermatozoa and associated tissue shall be stored in accordance with the Human Reproductive Technology Act 1991 (WA);
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 W] be published until further order of this court.[15]
[14] ts 12, 19 March 2020.
[15] On the morning of 20 March 2020 the applicant's counsel sent an email to the court advising that she had at about 9.30 pm the previous night spoken to the Acting Head of FSH's Intensive Care Unit who had confirmed that a direction would be given that the spermatozoa extraction procedure was not to occur until Mr W's life support equipment had been turned off.
In making the above orders I was well aware that they were limited in their operation in the sense that they did not permit the spermatozoa and associated tissue removed from the body of Mr W 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 W, would forever preclude the applicant seeking to make use of Mr W's spermatozoa in an attempt to conceive a baby.
In making order 3 above 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[16] 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 that their privacy will be invaded by the media at a time of obvious stress and trauma.
[16] Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex parte M [2008] WASC 276 [8].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick25 MARCH 2020
2