Hot Topics 64 - Health and the Law - Legal Information Access Centre

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found that artificial feeding was medical treatment and not the reasonable provision of food and water, under the Victorian legislation. Given the feeding was medical treatment, it could be refused under the Medical Treatment Act 1988 (Vic). Available at www.austlii.edu.au/au/cases/vic/VSC/2003/173.html Organ dOnaTiOn BY Brain-dead persOns In all Australian states and territories, legislation states that a person has died when there has occurred: > irreversible cessation of all function of the brain of the person; > irreversible cessation of circulation of blood in the body of the person. See for example, the Human Tissue Act 1983 (NSW), section 33. Legislation also requires that a medical certificate must be completed for every death, even where the death has been reported to the Coroner. See for example the Births, Deaths and Marriages Registration Act 1995 (NSW). If a deceased person is shown, after reasonable inquiries to have agreed to organ donation during his or her life, written authorisation may be given by the designated officer of a hospital, or the senior available next of kin, for removal of such tissue. This will not apply if the coroner needs to hold an inquest. Where a person is being kept alive by artificial ventilation and circulatory support, authority for organ donation cannot be given unless the patient has been declared brain dead independently by two medical practitioners, each with at least five years’ experience and one of whom is a specialist neurologist or neurosurgeon. The tests these doctors perform include checking for absence of brain stem function through whether the pupils, or the eyes in general, respond to pain, light or cold water in the ears; whether the patient has a gag reflex and tries to breath after being disconnected from the ventilator (the blood’s rising carbon dioxide level will normally trigger the respiratory centre in the brain stem). The law operates on the principle that the views that a person expressed while alive about organ donation will be respected once he or she is dead. If the deceased person’s views are not known, it is left to the next of image u navailable A patient is attended to by an emergency medical team after being airlifted from the site of a collision between a passenger train and a semi-trailer near the country town of Kerang, in north-western Victoria, 5 June 2007. Wayne Taylor, The Age (Melbourne). End of life issues 17
kin to decide whether that person should become an organ donor. If the views of the deceased person are not known and no relative can be found, the person may be used as an organ donor. The most practical way of ensuring that your views about organ donation are made known to hospital staff is to always carry a signed written statement in your wallet indicating whether or not you are prepared to be an organ or tissue donor, or to register with the central register. auTOpsies The purpose of a post-mortem examination (an autopsy) performed by a pathologist is to better understand the factors that may have contributed to the person’s death. This information may be important for the next of kin (eg if the person died from an infectious or genetic disease), or for the community as a whole (in identifying or tracing outbreaks of disease; in teaching doctors and nurses; and in checking the quality of the hospital’s diagnostic and treatment procedures). The report will be made available to a medical practitioner nominated by the relatives of the deceased. Consent is required prior to carrying out a post-mortem examination unless it is ordered by the Coroner. As is the case with organ and tissue donation, the law operates on the principle that the person’s expressed wishes, while alive, about the use of his or her body when they are dead, will be respected after their death. Therefore the law on consent for post-mortem examinations and for donation of bodies to medical schools is, in most respects, the same as for organ and tissue donation after death. The Coroner may dispense with a post-mortem if requested by an immediate family member of deceased or that person’s representative if already satisfied ‘that the manner and cause of death are sufficiently disclosed’. > dies during or within 72 hours after a medical, surgical or dental operation or an invasive medical or diagnostic procedure; > dies, and a medical practitioner has not given a certificate as to the cause of death; > dies, having not been attended by a medical practitioner at any time within the period commencing three months prior to the death; > dies after an accident where the cause of death appears to be directly attributable to the accident; > dies, or is suspected to have died, in circumstances that should be better ascertained; or > dies in custody. The public relies on its Coroners to determine the identity of deceased persons, the reason for their death and to refer deaths resulting from an apparent indictable offence to the Director of Public Prosecutions. The Coroner cannot make a finding of guilt or innocence, but rather establishes whether a person has ‘a case to answer’. The Coroner may hold an inquest (court hearing) to assist in determining the manner and cause of death. These proceedings are generally open to the public and witnesses are called. An inquest must be held if the death appears to have arisen after or during administration of an anaesthetic. cOrOnial enQuiries A Coroner has a wide discretion in deciding whether to hold an inquest into a reported death or whether to dispense with an inquest and complete an inquiry without a public hearing. Legislation in all Australian states and territories permits a Coroner to hold an inquest into the manner and cause of death when a person: > is killed; > is found drowned; > dies or is suspected to have died, a sudden death the cause of which is unknown; > dies under suspicious circumstances; 18 HOT TOPICS 64 > Health and the Law
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