Transplantation and Anatomy Act 1983 (SA)
South Australia
Transplantation and Anatomy Act 1983
An Act to make provision for and in relation to the removal of human tissues for transplantation, for post-mortem examinations, and for the regulation of schools of anatomy; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
5 Interpretation
5A Authorisation of retention of tissue for a purpose
6 Designated officers
Part 2—Donations of tissue by living persons
Division 1—Exclusion of certain tissue
7 Interpretation
Division 2—Donations by adults
8 Removal of blood not subject to this Division
9 Consent by adult living donor to removal of regenerative tissue
10 Consent by adult living donor to removal of non-regenerative tissue for transplantation
Division 3—Donations from children
11 Blood transfusions not subject to this Division
12 General prohibition against removal of tissue from children
13 Removal for transplantation of regenerative tissue from a child
14 Revocation of consent
Division 4—Effect of consents
15 Consents under section 9
16 Consents under section 10
17 Consents under section 13
Division 5—Donations of blood
17A Interpretation
18 Consents by adults to removal of blood
19 Consents to removal of blood from children
20 Consent to be sufficient authority for removal of blood
Part 3—Donations of tissue after death
21 Authorities to remove tissue after death
22 Authority to remove tissue where body of deceased person not in hospital
23 Consent by State Coroner
24 Effect of authority under this Part
Part 4—Post-mortem examinations
25 Authority for post-mortem examination where body of deceased person is in hospital
26 Authority for post-mortem examination where body of deceased person is not in hospital
27 Authority to use for therapeutic, medical or scientific purposes, tissue removed for post-mortem examination
28 Effect of authority under this Part
28A Post-mortem examinations to be conducted with regard for dignity of deceased
Part 5—Donations for anatomical purposes
29 Authorities for anatomy
30 Authority for anatomy where body of deceased person not in hospital
31 Consent by State Coroner
32 Effect of authority under this Part
Part 6—Schools of anatomy
33 Establishment of schools of anatomy
34 Regulations for the control etc of schools of anatomy
Part 7—Prohibition of trading in tissue
35 Certain contracts to be void
Part 8—Miscellaneous
36 Exclusion of liability of persons acting in pursuance of consent etc
37 Act does not prevent specified removals of tissue etc
38 Offences in relation to removal of tissue
38A Offence to provide false or misleading information in relation to donation of blood or semen
39 Disclosure of information
40 Summary offences
41 Regulations
Legislative history
The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Transplantation and Anatomy Act 1983.
5—Interpretation
(1)In this Act, unless the contrary intention appears—
child means a person who—
(a)has not attained the age of eighteen years; and
(b)is not married;
designated officer, in relation to a hospital, means a person appointed under section 6 to be a designated officer for that hospital;
domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;
medical practitioner means a legally qualified medical practitioner;
next of kin means—
(a)in relation to a child—a person referred to in paragraph (a)(i), (a)(ii) or (a)(iii) of the definition of senior available next of kin; and
(b)in relation to any other person—a person referred to in paragraph (b)(i), (b)(ii), (b)(iii) or (b)(iv) of that definition;
non-regenerative tissue means tissue other than regenerative tissue;
parent of a child includes a guardian of the child;
regenerative tissue means tissue that, after injury or removal, is replaced in the body of a living person by natural processes;
senior available next of kin means—
(a)in relation to a child, the first in order of priority of the following persons who is available at the time:
(i)a parent of the child;
(ii)a brother or sister, who has attained the age of eighteen years, of the child;
(iii)a guardian of the child; and
(b)in relation to any other person, the first in order of priority of the following persons who is available at the time:
(i)the spouse or domestic partner of the person;
(ii)a son or daughter, who has attained the age of eighteen years, of the person;
(iii)a parent of the person;
(iv)a brother or sister, who has attained the age of eighteen years, of the person;
spouse—a person is the spouse of another if they are legally married;
tissue includes an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.
(2)A reference in this Act to the transplantation of tissue shall be read as including a reference to the transplantation of any part of the tissue and to the transplantation of a substance obtained from the tissue.
5A—Authorisation of retention of tissue for a purpose
An authorisation in accordance with this Act to remove or use tissue for a particular purpose will be taken to also authorise the retention of the tissue, to the extent that such retention is reasonably necessary for the purpose.
6—Designated officers
The Minister may by instrument in writing, appoint a person who is a medical practitioner to be a designated officer for a hospital specified in the instrument.
Part 2—Donations of tissue by living persons
Division 1—Exclusion of certain tissue
7—Interpretation
In this Part, a reference to tissue shall not be read as including a reference to foetal tissue, spermatozoa or ova.
Division 2—Donations by adults
8—Removal of blood not subject to this Division
Nothing in this Division prevents the removal in accordance with Division 5 of blood from the body of a person.
9—Consent by adult living donor to removal of regenerative tissue
(1)A person who—
(a)is not a child; and
(b)in the light of medical advice furnished to him understands the nature and effect of the removal,
may, by writing signed by him otherwise than in the presence of any members of his family, consent to the removal from his body of regenerative tissue, other than blood, specified in the consent—
(c)for the purpose of the transplantation of the tissue to the body of another living person; or
(d)for use for other therapeutic purposes or for medical or scientific purposes.
(2)A person who has given a consent referred to in subsection (1) may, at any time before the removal of the regenerative tissue to which the consent applies, revoke, either orally or in writing, his consent to the removal.
10—Consent by adult living donor to removal of non-regenerative tissue for transplantation
(1)A person who—
(a)is not a child; and
(b)in the light of medical advice furnished to him understands the nature and effect of the removal and the nature of the transplantation,
may, by writing signed by him otherwise than in the presence of any members of his family, consent to the removal, after the expiration of a period of twenty-four hours from the time at which the consent is signed, from his body of non-regenerative tissue specified in the consent for the purpose of the transplantation of the tissue to the body of another living person.
(2)A person who has given a consent referred to in subsection (1) may, at any time before the removal of the non-regenerative tissue to which the consent applies, revoke, either orally or in writing, his consent to the removal.
Division 3—Donations from children
11—Blood transfusions not subject to this Division
Nothing in this Division prevents the removal in accordance with Division 5 of blood from the body of a child.
12—General prohibition against removal of tissue from children
It is not lawful—
(a)to remove non-regenerative tissue from the body of a living child for the purpose of the transplantation of the tissue to the body of another living person; or
(b)except as provided by this Part, to remove regenerative tissue from the body of a living child for the purpose of the transplantation of the tissue to the body of another living person.
13—Removal for transplantation of regenerative tissue from a child
(1)A parent of a child may, in the prescribed circumstances, consent in writing to the removal from the body of the child of specified regenerative tissue for the purpose of the transplantation of the tissue to the body of another living person referred to in the consent.
(2)The prescribed circumstances for the purposes of subsection (1) are that—
(a)in the light of medical advice furnished to the parent and the child each of them understands the nature and effect of the removal and the nature of the transplantation;
(b)the child has agreed to the removal of the regenerative tissue for the purpose of its transplantation to the body of the person referred to in subsection (1).
(3)A consent under subsection (1) has no effect for the purposes of this Act unless approved by the Committee under this section.
(4)The Minister shall appoint a Committee for the purposes of this section which shall consist of three members, of whom—
(a)one shall be a legal practitioner of at least seven years' standing; and
(b)one shall be a medical practitioner; and
(c)one shall be a social worker or psychologist,
and of whom at least one shall be a woman and at least one shall be a man.
(5)Where a consent is given under subsection (1), the Committee may approve the consent if each of the members of the Committee is of the opinion that it is desirable in all the circumstances of the case that the tissue referred to in the consent be removed from the body of the child for transplantation to the body of the other person referred to in the consent.
14—Revocation of consent
A parent who has given a consent under this Division, or a child who has under this Division agreed to the removal of tissue from his body, may, at any time before the removal of the tissue to which the consent or agreement applies, revoke, either orally or in writing, his consent or agreement, as the case requires, to the removal.
Division 4—Effect of consents
15—Consents under section 9
A consent under section 9, is unless it has been revoked under section 9(2), sufficient authority for a medical practitioner, other than a medical practitioner by whom the medical advice referred to in that section was furnished, to remove the regenerative tissue referred to in the consent—
(a)for the purpose of the transplantation of the tissue to the body of another living person; or
(b)for use for other therapeutic purposes or for medical or scientific purposes.
16—Consents under section 10
A consent under section 10 is, unless it has been revoked under section 10(2), sufficient authority for a medical practitioner, other than a medical practitioner by whom the medical advice referred to in that section was furnished, to remove, after the expiration of a period of twenty-four hours after the time at which the consent was given, the non-regenerative tissue referred to in the consent for the purpose of the transplantation of the tissue to the body of another living person.
17—Consents under section 13
A consent under section 13 is, unless the parent who gave the consent has revoked his consent or the child has revoked his agreement under section 14, sufficient authority for a medical practitioner, other than a medical practitioner by whom the medical advice referred to in that section was furnished, to remove from the body of the child the regenerative tissue referred to in the consent for the purpose of the transplantation of the tissue to the body of the other person referred to in the consent.
Division 5—Donations of blood
17A—Interpretation
In this Division—
child means a person who—
(a)has not attained the age of 16 years; and
(b)is not married.
18—Consents by adults to removal of blood
A person who is not a child may consent to the removal of blood from his body for transfusion to another person or for use of the blood or of any of its constituents for other therapeutic purposes or for medical or scientific purposes.
19—Consents to removal of blood from children
A parent of a child may consent to the removal of blood from the body of the child for a use referred to in section 18 if—
(a)a medical practitioner advises that the removal should not be prejudicial to the health of the child; and
(b)the child agrees to the removal.
20—Consent to be sufficient authority for removal of blood
A consent under this Division is sufficient authority for the removal of blood from the body of the person who has given the consent, or from the body of the child of the person who has given the consent, as the case requires.
Part 3—Donations of tissue after death
21—Authorities to remove tissue after death
(1)A designated officer for a hospital may, subject to and in accordance with this section, by instrument in writing, 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)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.
(2)Where the designated officer, after making such inquiries as are reasonable in the circumstances, has reason to believe that the deceased person had, during his lifetime, expressed the wish for, or consented to, the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1) and had not withdrawn the wish or revoked the consent, the designated officer may authorise under subsection (1) the removal of tissue from the body of the deceased person for the purpose or a use referred to in that subsection.
(3)Where the designated officer, after making such inquiries as are reasonable in the circumstances, has no reason to believe that the deceased person during his lifetime—
(a)had expressed the wish for, or consented to, the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1); or
(b)had expressed an objection to the removal after his death of tissue from his body for such a purpose or use,
and after making those inquiries and such further inquiries as are reasonable in the circumstances, the designated officer—
(c)has no reason to believe that the senior available next of kin of the deceased person has an objection to the removal of tissue from the body of the deceased person; or
(d)is unable to ascertain the existence or the whereabouts of the next of kin of the deceased person or is unable to ascertain whether any of the next of kin of the deceased person has an objection to the removal of tissue from the body of the deceased person,
the designated officer may authorise under subsection (1) the removal of tissue from the body of the deceased person for the purpose or a use referred to in that subsection.
(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 he has no objection 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 two 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 5, 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.
22—Authority to remove tissue where body of deceased person not in hospital
(1)Where the body of a deceased person is in a place other than a hospital, the senior available next of kin of the deceased person may, subject to this section, by instrument in writing, authorise the removal of 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.
(2)Subsection (1) does not apply where the senior available next of kin of the deceased person has reason to believe that—
(a)the deceased person had, during his lifetime, expressed an objection to the removal of tissue from his body and had not withdrawn his objection; or
(b)another next of kin of the same or a higher order of the classes in paragraph (a) or (b) of the definition of senior available next of kin in section 5 has an objection to the removal of tissue from the body of the deceased person.
(3)Where—
(a)a deceased person, during his lifetime, expressed the wish for, or consented to, the removal after his death of tissue from his body for the purpose or a use referred to in subsection (1); and
(b)the wish had not been withdrawn or the consent revoked; and
(c)the body of the deceased person is in a place other than a hospital,
the removal of tissue from the body of the deceased person in accordance with the wish or consent is, by force of this subsection, hereby authorised.
23—Consent by State Coroner
(1)If the designated officer for a hospital or, in a case to which section 22 applies, the senior available next of kin, has reason to believe that the circumstances applicable in relation to the death of a person are such that an inquest may be held under the Coroners Act 2003 into the death, the designated officer or the senior available next of kin, as the case may be, shall not authorise the removal of tissue from the body of the deceased person unless the State Coroner has consented to the removal.
(2)Section 22(3) does not operate in a case in which an inquest may be held under the Coroners Act 2003 into the death of a person unless the State Coroner has consented to the removal of tissue from the body of the deceased person.
(3)The State Coroner may give a direction either before or after the death of a person that his or her 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.
(4)A consent or direction by the State Coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(5)A consent or direction may be given orally by the State Coroner and, if so given, shall be confirmed in writing.
24—Effect of authority under this Part
(1)Subject to subsection (2), an authority under this Part is sufficient authority for the removal of tissue from the body of the deceased person referred to in the authority for the purpose of the transplantation of the tissue to the body of a living person or for use for other therapeutic, medical or scientific purposes, provided that the removal of the tissue is carried out by—
(a)a medical practitioner other than—
(i)a medical practitioner referred to in subsection (2); and
(ii)in a case to which section 21 applies, the designated officer for the hospital; or
(b)where the tissue is to be removed for the purpose of corneal transplantation—an authorised person or a medical practitioner entitled by virtue of paragraph (a) to carry out the removal.
(2)Where the respiration and the circulation of the blood of a person are being maintained by artificial means, tissue shall not be removed from the body of the person for the purpose or a use specified in subsection (1) unless two medical practitioners (each of whom has carried out a clinical examination of the person, and each of whom has been for a period of not less than five years a medical practitioner) have declared that irreversible cessation of all function of the brain of the person has occurred.
(3)For the purposes of subsection (2), any period during which a person who is a medical practitioner practised as a medical practitioner, however described, under the law in force in a country outside Australia shall be taken into account in calculating the period of five years referred to in that subsection.
(4)In this section—
authorised person means a person, not being a medical practitioner, appointed by the Minister to be an authorised person for the purposes of this section.
Part 4—Post-mortem examinations
25—Authority for post-mortem examination where body of deceased person is in hospital
(1)A designated officer for a hospital may, subject to this section, by instrument in writing, authorise, for the purpose of investigating the causes of death of a person who has died in the hospital or whose dead body has been brought into the hospital, a post‑mortem examination of the body of the deceased person—
(a)if, after making such inquiries as are reasonable in the circumstances, the designated officer is satisfied that the deceased person had, during his or her lifetime, given his or her consent to a post-mortem examination of his or her body and had not revoked the consent; or
(b)if, after making such inquiries as are reasonable in the circumstances, the designated officer is not satisfied as to the matters referred to in paragraph (a) but is satisfied—
(i)that the senior available next of kin of the deceased person has given his or her consent to a post-mortem examination of the body of the deceased person; and
(ii)that the deceased person had not, during his or her lifetime, expressed an objection to a post-mortem examination of his or her body; or
(c)if, after making such inquiries as are reasonable in the circumstances, the designated officer—
(i)is not satisfied as to the matters referred to in paragraphs (a) and (b)(i) but is satisfied as to the matter referred to in paragraph (b)(ii); and
(ii)is unable to ascertain—
(A)the existence or whereabouts of the next of kin of the deceased person; or
(B)whether any of the next of kin of the deceased person has an objection to a post‑mortem examination of the body of the deceased person.
(2)If, after making such inquiries as are reasonable in the circumstances, the designated officer is not satisfied as to the matters referred to in subsection (1)(a) and has reason to believe—
(a)that the deceased person had, during his or her lifetime, expressed an objection to a post-mortem examination of his or her body and had not withdrawn that objection; or
(b)that the senior available next of kin of the deceased person has an objection to a post-mortem examination of the body of the deceased person,
the designated officer may, subject to this section, with the consent of the Minister, authorise a post-mortem examination of the body of the deceased person in accordance with the consent for the purpose or purposes specified in the consent.
(3)The Minister must not consent to a post-mortem examination of the body of a deceased person unless—
(a)the Minister is of the opinion—
(i)that a post-mortem examination of the body of the deceased person is necessary or desirable in order to identify or deal with any risk (whether actual or perceived) to the health of the public; and
(ii)that the interests of public health justify overriding any objection to a post-mortem examination of the body of the deceased person expressed by the deceased person during his or her lifetime or on the part of the senior available next of kin of the deceased person; and
(b)if the Minister has reason to believe that the senior available next of kin of the deceased person has an objection to a post‑mortem examination of the body of the deceased person—the Minister has made every reasonable attempt to persuade the senior available next of kin to grant his or her consent to a post‑mortem examination.
(4)The Minister must, within 7 days after granting consent to a post‑mortem examination of the body of a deceased person under this section, notify the State Coroner of the consent.
(5)If the designated officer has reason to believe that the death of the person is or may be a reportable death under the Coroners Act 2003, the designated officer must not authorise a post-mortem examination of the body of the deceased person unless—
(a)the State Coroner has given his or her consent to the post‑mortem examination; or
(b)the State Coroner has given a direction (whether before or after the person's death) that his or her consent to a post‑mortem examination of the body of the person is not required.
(6)Subject to subsection (7), a consent referred to in this section (other than a consent of the State Coroner) must be in writing.
(7)The senior available next of kin of a deceased person may, at the request of the designated officer, give his or her consent to a post‑mortem examination of the body of the deceased person orally by telephone but that consent is not effective unless—
(a)the giving of the consent is heard by two witnesses, at least one of whom must be a medical practitioner; and
(b)a written record of the consent is made by a witness who is a medical practitioner; and
(c)that record is signed by the two witnesses.
(8)A consent or direction of the State Coroner under this section—
(a)may be unconditional or subject to such conditions as are specified in the consent or direction;
(b)if given orally, must be confirmed in writing.
(9)If there are two 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 5, the consent of any one of those persons has effect for the purposes of this section.
26—Authority for post-mortem examination where body of deceased person is not in hospital
(1)The senior available next of kin of a deceased person whose body is in a place other than a hospital may, subject to this section, by instrument in writing, authorise a post‑mortem examination of the body of the deceased person for the purpose of investigating the causes of death of the person.
(2)The senior available next of kin of the deceased person must not authorise a post-mortem examination of the body of the deceased person if he or she has reason to believe—
(a)that another next of kin of the deceased person of the same or higher order of the classes referred to in paragraph (a) or (b) of the definition of senior available next of kin in section 5 has an objection to the post-mortem examination of the body of the deceased person; or
(b)that the deceased person had, during his or her lifetime, expressed an objection to a post-mortem examination of his or her body and had not withdrawn the objection.
(3)If the senior available next of kin of the deceased person has reason to believe that the death of the person is or may be a reportable death under the Coroners Act 2003, the senior available next of kin must not authorise a post-mortem examination of the body of the deceased person unless—
(a)the State Coroner has given his or her consent to the post‑mortem examination; or
(b)the State Coroner has given a direction (whether before or after the person's death) that his or her consent to a post‑mortem examination of the body of the person is not required.
(4)If—
(a)a deceased person had, during his or her lifetime, given his or her written consent to a post-mortem examination of his or her body and had not revoked the consent; and
(b)the body of the deceased person is in a place other than a hospital,
a post-mortem examination of the deceased person is authorised by force of this subsection.
(5)However, if an inquest may be held under the Coroners Act 2003 into the death of a deceased person, subsection (4) does not authorise a post-mortem examination of the body of the deceased person unless the State Coroner has given his or her consent to the examination.
(6)A consent or direction of the State Coroner under this section—
(a)may be unconditional or subject to such conditions as are specified in the consent or direction;
(b)if given orally, must be confirmed in writing.
27—Authority to use for therapeutic, medical or scientific purposes, tissue removed for post-mortem examination
(1)A designated officer for a hospital may, by instrument in writing, authorise the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of a deceased person for the purposes of a post-mortem examination of the body performed at the hospital pursuant to an authority under section 25—
(a)if, after making such inquiries as are reasonable in the circumstances, the designated officer is satisfied that the deceased person had, during his or her lifetime, given his or her consent to the use, after his or her death, of tissue from his or her body for therapeutic, medical or scientific purposes and had not revoked the consent; or
(b)if, after making such inquiries as are reasonable in the circumstances, the designated officer is not satisfied as to the matters referred to in paragraph (a) but is satisfied—
(i)that the senior available next of kin of the deceased person has given his or her consent to the use, for therapeutic, medical or scientific purposes, of any tissue removed from the body of the deceased person for the purposes of a post-mortem examination of the body; and
(ii)that the deceased person had not, during his or her lifetime, expressed an objection to the use, for therapeutic, medical or scientific purposes, of tissue removed from his or her body after his or her death.
(2)The senior available next of kin of a deceased person may, by instrument in writing, authorise the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of the deceased person for the purposes of a post-mortem examination of the body performed at a place other than a hospital pursuant to an authority under section 26 unless he or she has reason to believe—
(a)that another next of kin of the deceased person of the same or higher order of the classes referred to in paragraph (a) or (b) of the definition of senior available next of kin in section 5 has an objection to the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of the deceased person for the purposes of a post‑mortem examination of the body; or
(b)that the deceased person had, during his or her lifetime, expressed an objection to the use, for therapeutic, medical or scientific purposes, of tissue removed from his or her body after his or her death and had not withdrawn the objection.
(3)The State Coroner may, by instrument in writing, authorise the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of a deceased person for the purposes of a post-mortem examination of the body performed pursuant to a direction given by the State Coroner or the Coroner's Court under the Coroners Act 2003—
(a)if, after making such inquiries as are reasonable in the circumstances, the State Coroner is satisfied that the deceased person had, during his or her lifetime, given his or her consent to the use, after his or her death, of tissue from his or her body for therapeutic, medical or scientific purposes and had not revoked the consent; or
(b)if, after making such inquiries as are reasonable in the circumstances, the State Coroner is not satisfied as to the matters referred to in paragraph (a) but is satisfied—
(i)that the senior available next of kin of the deceased person has given his or her consent to the use, for therapeutic, medical or scientific purposes, of any tissue removed from the body of the deceased person for the purposes of a post-mortem examination of the body; and
(ii)that the deceased person had not, during his or her lifetime, expressed an objection to the use, for therapeutic, medical or scientific purposes, of tissue removed from his or her body after his or her death.
(4)If there are two 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 5, the consent of any one of those persons has effect for the purposes of this section.
(5)A consent referred to in this section must be in writing.
28—Effect of authority under this Part
(1)An authority given by a designated officer for a hospital under section 25 is sufficient authority for a medical practitioner (other than the designated officer)—
(a)to conduct an examination of the body of the deceased person; and
(b)to remove tissue from the body of the deceased person for the purposes of the post-mortem examination.
(2)An authority under section 26 is sufficient authority for a medical practitioner—
(a)to conduct an examination of the body of the deceased person; and
(b)to remove tissue from the body of the deceased person for the purposes of the post-mortem examination.
(3)An authority under section 27 is sufficient authority for the use, for therapeutic, medical or scientific purposes, of tissue removed from the body of a deceased person for the purposes of a post-mortem examination of the body.
(4)An authority given under this Part is subject to any conditions specified in the instrument of authorisation.
28A—Post-mortem examinations to be conducted with regard for dignity of deceased
A post-mortem examination of the body of a deceased person authorised under this Act must be conducted with regard to the dignity of the deceased person.
Part 5—Donations for anatomical purposes
29—Authorities for anatomy
(1)A designated officer for a hospital may, subject to and in accordance with this section, by instrument in writing, authorise the use of 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 anatomical examination; or
(b)for the purpose of the study and teaching of the anatomy of the human body.
(2)Where the designated officer, after making such inquiries as are reasonable in the circumstances, has reason to believe that the deceased person had, during his lifetime, expressed the wish for, or consented to, the use of his body after his death for a purpose referred to in subsection (1) and had not withdrawn the wish or revoked the consent, the designated officer may authorise under subsection (1) the use of the body of the deceased person for a purpose referred to in that subsection.
(3)Where the designated officer, after making such inquiries as are reasonable in the circumstances, has no reason to believe that the deceased person during his lifetime—
(a)had expressed the wish for, or consented to, the use of his body after his death for a purpose referred to in subsection (1); or
(b)had expressed an objection to the use of his body after his death for such a purpose,
and is satisfied that the senior available next of kin of the deceased person has no objection to the use of the body of the deceased person for such a purpose, the designated officer may authorise under subsection (1) the use of the body of the deceased person for a purpose referred to in that subsection.
(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 he has no objection to the use after the death of the person of the body of the person for a purpose 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 two 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 5, 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.
30—Authority for anatomy where body of deceased person not in hospital
(1)Where the body of a deceased person is in a place other than a hospital, the senior available next of kin of the deceased person may, subject to this section, by instrument in writing, authorise the use of the body of the deceased person—
(a)for the purpose of anatomical examination; or
(b)for the study and teaching of the anatomy of the human body.
(2)Subsection (1) does not apply where the senior available next of kin of the deceased person has reason to believe that—
(a)the deceased person had, during his lifetime, expressed an objection to the use of his body for a purpose referred to in section 29(1) and had not withdrawn his objection; or
(b)another next of kin of the same or a higher order of the classes in paragraph (a) or (b) of the definition of senior available next of kin in section 5 has an objection to the use of the body of the deceased person for a purpose referred to in section 29(1).
(3)Where—
(a)a deceased person, during his lifetime, expressed the wish for, or consented to, the use after his death of his body for a purpose referred to in section 29(1); and
(b)the wish had not been withdrawn or the consent revoked; and
(c)the body of the deceased person is in a place other than a hospital,
the use of the body of the deceased person in accordance with the wish or consent is, by force of this subsection, hereby authorised.
31—Consent by State Coroner
(1)If the designated officer for a hospital or, in a case to which section 30 applies, the senior available next of kin, has reason to believe that the circumstances applicable in relation to the death of a person are such that an inquest may be held under the Coroners Act 2003 into the death, the designated officer or the senior available next of kin, as the case may be, shall not authorise the use of the body of the deceased person for a purpose referred to in section 29(1) unless the State Coroner has consented to the use of the body of the person.
(2)Section 30(3) does not operate in a case in which an inquest may be held under the Coroners Act 2003 into the death of a person unless the State Coroner has consented to the use of the body of the person.
(3)The State Coroner may give a direction either before or after the death of a person that his consent to the use of 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 use of the body of the person.
(4)A consent or direction by the State Coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(5)A consent or direction may be given orally by the State Coroner, and if so given, shall be confirmed in writing.
32—Effect of authority under this Part
An authority under this Part is sufficient authority for the removal of the body of the deceased person to a school of anatomy established under Part 6 or to a school of anatomy established or licensed under a law of the Commonwealth, of another State or of a Territory, for its acceptance by the school of anatomy and for its use, subject to the regulations made under section 34, by the school of anatomy for a purpose referred to in section 29(1).
Part 6—Schools of anatomy
33—Establishment of schools of anatomy
(1)In this section—
prescribed institution means any institution specified in the regulations as a prescribed institution.
(2)The Minister may, by instrument in writing, authorise the establishment within prescribed institutions of schools of anatomy for the teaching and study of anatomy and for the carrying on of the practice of anatomy.
(3)An instrument authorising the establishment of a school of anatomy within a prescribed institution may authorise the teaching and study of the anatomy of the whole of the human body or may authorise the teaching and study of the anatomy of specified parts of the human body.
(4)The Minister may, by instrument in writing, authorise the carrying out of anatomical examinations and the teaching and study of anatomy at a place, not being a place within a prescribed institution, specified in the instrument.
(5)A place referred to in subsection (4) shall be deemed to be a school of anatomy established under subsection (2).
(6)A copy of each instrument under this section shall be published in the Gazette.
34—Regulations for the control etc of schools of anatomy
The regulations may make provision for and in relation to—
(a)the conditions subject to which bodies may be removed to a school of anatomy; and
(b)the conditions subject to which anatomical examinations and the teaching and study of anatomy and the practice of anatomy may be carried out; and
(c)the furnishing of returns and other information by the person in charge of a school of anatomy; and
(d)the precautions to be taken in regard to the receipt, custody and subsequent disposal of bodies; and
(e)the inspection of schools of anatomy; and
(f)the regulation and control of schools of anatomy.
Part 7—Prohibition of trading in tissue
35—Certain contracts to be void
(1)Subject to this section, a contract or arrangement under which a person agrees, for valuable consideration, whether given or to be given to himself or to another person—
(a)to the sale or supply of tissue from his body or from the body of another person, whether before or after his death or the death of the other person, as the case may be;
(b)to the post-mortem examination or anatomical examination of his body after his death or of the body of another person after the death of the other person,
is void.
(2)A person who enters into a contract or arrangement referred to in subsection (1) is guilty of an offence.
Maximum penalty: $20 000.
(3)Subsection (1) does not apply to or in relation to the sale or supply of tissue (not being tissue obtained under a contract or arrangement that is by subsection (1) void) if the tissue has been subjected to processing or treatment and the sale or supply is made for use, in accordance with the directions of a medical practitioner, for therapeutic, medical or scientific purposes.
(4)Subsection (1) does not apply to or in relation to a contract or arrangement providing only for the reimbursement of any expenses necessarily incurred by a person in relation to the removal of tissue in accordance with this Act.
(5)Nothing in this section renders inoperative a consent or authority given or purporting to have been given under this Act in relation to tissue from the body of a person or in relation to the body of a person if a person acting in pursuance of the consent or authority did not know and had no reason to know that the tissue or the body was the subject matter of a contract or arrangement referred to in subsection (1).
(6)Where he considers it is desirable by reason of special circumstances so to do, the Minister may, by instrument in writing, approve the entering into of a contract or arrangement that would, but for the approval, be void under subsection (1) and nothing in subsection (1) or (2) applies to and in relation to a contract or agreement entered into in accordance with an approval under this subsection.
(7)A person shall not knowingly—
(a)publish or disseminate by newspaper, book, broadcasting, television, cinematograph or other means; or
(b)exhibit to public view in any place,
an advertisement relating to the selling or buying in Australia of tissue or of the right to remove tissue from the bodies of persons unless the advertisement and the form and wording thereof have been approved in writing by the Minister and the advertisement contains a statement to that effect.
Maximum penalty: $20 000.
Part 8—Miscellaneous
36—Exclusion of liability of persons acting in pursuance of consent etc
(1)Subject to this Act, a person is not liable in any proceedings, whether civil or criminal, for any act done in pursuance of, by reason of, or as a result of, a consent, agreement or authority given, or purporting to have been given, in pursuance of this Act where the act is done without negligence and in good faith.
(2)Without limiting the generality of the expression "in good faith", a person shall be regarded as having done an act referred to in subsection (1) in good faith if the person establishes that—
(a)he had an honest and reasonable belief that a consent, agreement or authority required by this Act for the doing of the act had been given; or
(b)he had no reason to doubt that a consent, agreement or authority purporting to have been given in accordance with this Act for the doing of the act was a consent, agreement or authority given in accordance with this Act.
37—Act does not prevent specified removals of tissue etc
(1)Nothing in this Act applies to or in relation to—
(a)the removal of tissue from the body of a living person in the course of a procedure or operation carried out in the interests of the health of the person by a medical practitioner with consent (express or implied) given by or on behalf of the person, or in circumstances necessary for the preservation of the life of the person; or
(b)the use of tissue so removed; or
(c)the embalming of the body of a deceased person; or
(d)the preparation, including the restoration of any disfigurement or mutilation, of the body of a deceased person for the purpose of interment or cremation.
(2)In subsection (1)(a) and (1)(b)—
tissue has the same meaning as in Part 2.
38—Offences in relation to removal of tissue
(1)A person shall not—
(a)remove tissue other than blood from the body of a living person for use for a purpose specified in section 9, 10 or 13 except in pursuance of a consent that is under Division 4 of Part 2 sufficient authority for the person to remove the tissue for use for that purpose; or
(b)remove blood from the body of a living person for transfusion or a use specified in section 18 except in pursuance of a consent that is under Division 5 of Part 2 sufficient authority for the removal of the blood; or
(c)remove tissue from the body of a deceased person for a purpose or use referred to in section 21(1) or 22(1) except in pursuance of an authority that is under Part 3 sufficient authority for the person to remove the tissue for that purpose or use; or
(d)conduct a post-mortem examination of the body of a deceased person unless the post-mortem examination is made in pursuance of an authority that is under Part 4 sufficient authority for the person to conduct the post-mortem examination; or
(e)in conducting a post-mortem examination of the body of a deceased person in pursuance of an authority referred to in paragraph (d), remove tissue from the body of a person except for a purpose for which that authority is under Part 4 sufficient authority; or
(f)use the body of a deceased person for the purposes of anatomical examination or the study and teaching of the anatomy of the human body except in pursuance of an authority that is under Part 5 sufficient authority for the use of the body; or
(g)carry out an anatomical examination of the body of a deceased person otherwise than at a school of anatomy established or deemed to have been established under Part 6.
Maximum penalty: $20 000.
(2)A designated officer for a hospital who issues an authority under this Act—
(a)without having made any of the inquiries that he is required to make under this Act; or
(b)without making such inquiries as are reasonable in the circumstances of the case,
is guilty of an offence.
Maximum penalty: $5 000.
(3)Nothing in subsection (1) applies to or in relation to—
(a)any act for which a person is not, by reason of section 36, criminally liable; or
(b)anything done in pursuance of an order by the State Coroner or the Coroner's Court under the Coroners Act 2003; or
(c)any other act authorised by law.
38A—Offence to provide false or misleading information in relation to donation of blood or semen
(1)A donor who supplies false or misleading information in relation to the donation of blood or semen, knowing the information to be false or misleading, is guilty of an offence.
Maximum penalty: $20 000.
(2)In this section—
donor means a person who—
(i)donates blood for any use or purpose contemplated by this Act; or
(ii)donates semen for the purposes of a fertilisation procedure or for medical or scientific purposes;
fertilisation procedure means—
(i)artificial insemination; or
(ii)the procedure of fertilising an ovum outside the body and transferring the fertilised ovum into the uterus.
39—Disclosure of information
(1)Subject to this section, a person shall not disclose or give to any other person any information or document whereby the identity of a person—
(a)from whose body tissue has been removed for the purpose of transplantation or for use for other therapeutic purposes or for medical or scientific purposes; or
(b)with respect to whom or with respect to whose body a consent or authority has been given under this Act; or
(c)into whose body tissue has been, is being, or may be, transplanted,
may become publicly known.
Maximum penalty: $20 000.
(2)Subsection (1) does not apply to or in relation to any information disclosed—
(a)in pursuance of an order of a court or when otherwise required by law; or
(b)for the purposes of hospital administration or bona fide medical research; or
(c)with the consent of the person to whom the information relates; or
(d)when the circumstances in which the disclosure is made are such that the disclosure is or would be privileged.
40—Summary offences
Proceedings for an offence against this Act shall be disposed of summarily.
41—Regulations
(1)The Governor may make such regulations as are contemplated by this Act, or as are necessary or expedient for the purposes of this Act.
(2)Without limiting the generality of subsection (1), the regulations may—
(a)provide for notices setting out information relating to the operation and effect of this Act and for the furnishing of such notices to persons prior to their giving any consent or agreement under this Act;
(ab)prescribe the form in which any consent or authority under this Act is to be obtained;
(b)prescribe penalties not exceeding $2 500 for contravention of, or non-compliance with, a regulation (including a regulation referred to in section 34).
Legislative history
Notes
•Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or repealed by principal Act
The Transplantation and Anatomy Act 1983 repealed the following:
Anatomy Act 1884
Sale of Human Blood Act 1962
Transplantation of Human Tissue Act 1974
Principal Act and amendments
New entries appear in bold.
Year No Title Assent Commencement 1983 11 Transplantation and Anatomy Act 1983 5.5.1983 1.7.1984 (Gazette 17.5.1984 p1160) except ss 33 & 34—4.1.1996 (Gazette 4.1.1996 p3) 1984 67 Transplantation and Anatomy Act Amendment Act 1984 18.10.1984 18.10.1984 1985 67 Transplantation and Anatomy Act Amendment Act 1985 6.6.1985 6.6.1985 1987 41 South Australian Health Commission Act Amendment Act 1987 30.4.1987 1.7.1987 except ss 13 & 20—1.7.1988 (Gazette 25.6.1987 p1634) 2000 1 Transplantation and Anatomy (Consent to Blood Donation) Amendment Act 2000 6.4.2000 6.4.2000 2000 34 South Australian Health Commission (Administrative Arrangements) Amendment Act 2000 6.7.2000 Sch 1 (cl 19)—6.7.2000 (Gazette 6.7.2000 p5) 2003 33 Coroners Act 2003 31.7.2003 Sch (cll 19—23)—1.7.2005 (Gazette 23.6.2005 p1899) 2005 75 Transplantation and Anatomy (Post-Mortem Examinations) Amendment Act 2005 8.12.2005 29.11.2007 (Gazette 29.11.2007 p4383) 2006 43 Statutes Amendment (Domestic Partners) Act 2006 14.12.2006 Pt 87 (s 213)—1.6.2007 (Gazette 26.4.2007 p1352) 2013 20 Burial and Cremation Act 2013 14.6.2013 Sch 1 (cl 8)—1.2.2014 (Gazette 16.1.2014 p120) Provisions amended
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision How varied Commencement Long title amended under Legislation Revision and Publication Act 2002 1.7.2005 Pt 1 ss 2—4 omitted under Legislation Revision and Publication Act 2002 1.7.2005 s 5 s 5(1) domestic partner inserted by 43/2006 s 213(1) 1.6.2007 Commission deleted by 34/2000 Sch 1 cl 19(a) 6.7.2000 senior available next of kin amended by 43/2006 s 213(2) 1.6.2007 spouse inserted by 43/2006 s 213(3) 1.6.2007 s 5A inserted by 75/2005 s 4 29.11.2007 s 6 amended by 41/1987 s 35 1.7.1987 amended by 34/2000 Sch 1 cl 19(b) 6.7.2000 Pt 2 s 17A inserted by 1/2000 s 2 6.4.2000 Pt 3 s 23 s 23(1) amended by 33/2003 Sch (cl 19(1), (2)) 1.7.2005 s 23(2) amended by 33/2003 Sch (cl 19(3), (4)) 1.7.2005 s 23(3) amended by 33/2003 Sch (cl 19(5), (6)) 1.7.2005 s 23(4) amended by 33/2003 Sch (cl 19(7)) 1.7.2005 s 23(5) amended by 33/2003 Sch (cl 19(8)) 1.7.2005 s 24 s 24(1) substituted by 67/1984 s 2(a) 18.10.1984 s 24(4) inserted by 67/1984 s 2(b) 18.10.1984 authorised person amended by 41/1987 s 35 1.7.1987 amended by 34/2000 Sch 1 cl 19(c) 6.7.2000 Pt 4 before substitution by 75/2005 s 27 s 27(1) amended by 33/2003 Sch (cl 20(1), (2)) 1.7.2005 s 27(2) amended by 33/2003 Sch (cl 20(3), (4)) 1.7.2005 s 27(3) amended by 33/2003 Sch (cl 20(5)) 1.7.2005 s 27(4) amended by 33/2003 Sch (cl 20(6)) 1.7.2005 s 27(5) amended by 33/2003 Sch (cl 20(7)) 1.7.2005 s 28 s 28(2) amended by 33/2003 Sch (cl 21(1), (2)) 1.7.2005 Pt 4 substituted by 75/2005 s 5 29.11.2007 Pt 5 s 31 s 31(1) amended by 33/2003 Sch (cl 22(1), (2)) 1.7.2005 s 31(2) amended by 33/2003 Sch (cl 22(3), (4) 1.7.2005 s 31(3) amended by 33/2003 Sch (cl 22(5)) 1.7.2005 s 31(4) amended by 33/2003 Sch (cl 22(6)) 1.7.2005 s 31(5) amended by 33/2003 Sch (cl 22(7)) 1.7.2005 Pt 6 s 34 amended by 20/2013 Sch 1 cl 8 1.2.2014 Pt 7 s 35 s 35(2) amended by 75/2005 s 6(1) 29.11.2007 s 35(7) amended by 75/2005 s 6(2) 29.11.2007 Pt 8 s 38 s 38(1) amended by 75/2005 s 7(1) 29.11.2007 s 38(2) amended by 75/2005 s 7(2) 29.11.2007 s 38(3) amended by 33/2003 Sch (cl 23)) 1.7.2005 s 38A inserted by 67/1985 s 2 6.6.1985 s 38A(1) amended by 75/2005 s 8 29.11.2007 s 39 s 39(1) amended by 75/2005 s 9 29.11.2007 s 41 s 41(2) amended by 75/2005 s 10(1), (2) 29.11.2007 Historical versions
Reprint No 1—15.1.1992 Reprint No 2—6.4.2000 Reprint No 3—6.7.2000 1.7.2005 1.6.2007 29.11.2007
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