Australian Capital Territory

Transplantation and Anatomy Act 1978
No 44
Republication No 4A
As in force on 23 October 2000
Includes all amendments up to Act 2000 No 45

Prepared by the ACT Parliamentary Counsel’s Office
This republication is not an authorised republication for the Legislation (Republication) Act 1996.
As in force on
23 October 2000

Australian Capital Territory

Transplantation and Anatomy Act 1978
CONTENTS
	Page 

As in force on
23 October 2000

Australian Capital Territory

Transplantation and Anatomy Act 1978
An Act to make provision for and in relation to the removal of human tissues for transplantation, for post-mortem examinations, for the definition of death, for the regulation of schools of anatomy, and for related purposes
Part 1—Preliminary
1 	Short title
	This Act may be cited as the Transplantation and Anatomy Act 1978.
4 	Interpretation
(1) 	In this Act:
Note	A definition applies except so far as the contrary intention appears (see Interpretation Act 1967, s 11G).
child means a person who—
	(a)	has not attained the age of 18 years; and
	(b)	is not married.
coroner means a person who is a coroner for the Territory.
designated officer, in relation to a hospital, means a person appointed under section 5 to be a designated officer for that hospital.
enrolled nurse has the same meaning as in the Nurses Act 1988.
medical practitioner means a person who is registered or licensed under a law of a State or Territory relating to the registration or licensing of medical practitioners.
next of kin means—
	(a)	in relation to a deceased child—a person referred to in subparagraph (a) (i), (a) (ii) or (a) (iii) of the definition of senior available next of kin; and
	(b)	in relation to any other deceased person—a person referred to in subparagraph (b) (i), (b) (ii), (b) (iii) or (b) (iv) of that definition.
non-regenerative tissue means tissue other than regenerative tissue.
regenerative tissue means tissue that, after injury or removal, is replaced in the body of a living person by natural processes of growth or repair.
registered nurse has the same meaning as in the Nurses Act 1988.
senior available next of kin means—
	(a)	in relation to a deceased child—
	(i)	where a parent of the child is available—a parent of the child; or
	(ii)	where a parent of the child is not available—a brother or sister of the child who has attained the age of 18 years and who is available; or
	(iii)	where no person referred to in subparagraph (i) or (ii) is available—a person who was the guardian of the child immediately before the death of the child and who is available; and
	(b)	in relation to any other deceased person—
	(i)	where the person, immediately before his or her death, was married and the person who was then his or her spouse is available—the person who was his or her spouse; or
	(ii)	where the person, immediately before his or her death, was not married or, if he or she was married, his or her spouse is not available—a son or daughter of the person who has attained the age of 18 years and who is available; or
	(iii)	where no person referred to in subparagraph (i) or (ii) is available but a parent of the person is available—that parent; or
	(iv)	where no person referred to in subparagraph (i), (ii) or (iii) is available—a brother or sister of the person who has attained the age of 18 years and is available;
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.
5 	Designated officers
(1) 	For the purposes of this Act, the Minister may, by instrument, appoint a medical practitioner to be a designated officer for a hospital conducted by the Territory.
(2) 	The persons or body having the control and management of a hospital other than a hospital conducted by the Territory may, by instrument, appoint such persons, being medical practitioners, as those persons or that body consider necessary to be, for the purposes of this Act, designated officers for that hospital.

Part 2—Donations of Tissue by Living Persons
Division 1—Exclusion of certain tissue
6 	Meaning of tissue in pt 2
	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
7 	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 person.
8 	Consent by adult living donor to removal of regenerative tissue
	A person may give his or her consent in writing to the removal from his or her body of specified regenerative tissue (other than blood)—
	(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.
9 	Consent by adult living donor to removal of non-regenerative tissue for transplantation
(1) 	A person may give his or her consent in writing to the removal from his or her body, at any time after the expiration of 24 hours from the time at which the consent is given, of specified non-regenerative tissue for the purpose of the transplantation of the tissue to the body of another living person.
(2) 	A consent given under subsection (1) shall specify the time at which the consent is given.
10 	Medical practitioner may give certificate in relation to consent
	A medical practitioner may certify in writing—
	(a)	that the consent in writing of a person, the terms of which consent are set out in the certificate, was given in his or her presence; and
	(b)	that he or she explained to the person before the consent was given the nature and effect of the removal from the body of that person of the tissue specified in the consent; and
	(c)	that he or she is satisfied—
	(i)	that, at the time the consent was given, the person had attained the age of 18 years; and
	(ii)	that, at that time, the person was of sound mind; and
	(iii)	that the consent was freely given.
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 	Reference to parent not to include guardian etc
	In this Division, a reference to the parent of a child shall not be read as including a reference to the guardian of a child or to another person standing in loco parentis to the child.
13 	Removal for transplantation of regenerative tissue from body of child
(1) 	A person who is a parent of a child may give his or her 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 member of the family of the child or to the body of a relative of the child.
(2) 	A medical practitioner may certify in writing—
	(a)	that the consent in writing of a person who is a parent of a child, the terms of which consent are set out in the certificate, was given in his or her presence; and
	(b)	that he or she explained to the person and to the child before the consent was given the nature and effect of the removal from the body of that child of the tissue specified in the consent and the nature of the transplantation of that tissue; and
	(c)	that he or she is satisfied that, at the time the consent was given, the child—
	(i)	understood the nature and effect of the removal of the tissue and the nature of the transplantation; and
	(ii)	was in agreement with the proposed removal and transplantation of tissue.
14 	Removal for transplantation of non-regenerative tissue from body of child
(1) 	A person who is a parent of a child may give his or her consent in writing to the removal from the body of the child, at any time after the expiration of 24 hours from the time at which the consent is given, of specified non-regenerative tissue for the purpose of the transplantation of the tissue to the body of another member of the family of the child.
(2) 	A consent given under subsection (1) shall specify the time at which the consent is given.
(3) 	A medical practitioner may certify in writing—
	(a)	that the consents in writing of both persons who are the parents of a child, the terms of which consents are set out in the certificate, were given in his or her presence; and
	(b)	that, before the consents were given—
	(i)	he or she advised those persons and the child that a person who was a member of the family of the child was in danger of dying unless certain non-regenerative tissue was transplanted to the body of that person from the body of another person; and
	(ii)	he or she explained to those persons and the child the nature and effect of the removal from the body of the child of the tissue specified in the consent and the nature of the transplantation of that tissue; and
	(c)	that he or she is satisfied that, at the time the consent was given, the child—
	(i)	understood the nature and effect of the removal of the tissue and the nature of the transplantation; and
	(ii)	was in agreement with the proposed removal and transplantation of tissue.
(4) 	Where each of the parents of a child gives a written consent under subsection (1) and a medical practitioner gives a certificate in accordance with subsection (3) in relation to those consents, the medical practitioner who gives that certificate shall refer the matter to the committee appointed in accordance with subsection (5).
(5) 	The Minister shall, by instrument in writing, appoint 3 persons of whom—
	(a)	1 person shall be a judge of the Supreme Court; and
	(b)	1 person shall be a medical practitioner; and
	(c)	1 person shall be a social worker or a psychologist;
to be a committee for the purposes of this section.
(6) 	Where only 1 parent of a child is available and that parent gives a written consent under subsection (1), a medical practitioner who gives a certificate in relation to that consent that is restricted in all respects to that parent and the child but is otherwise in accordance with subsection (3) shall refer the matter to the committee appointed in accordance with subsection (5).
(7) 	Where a medical practitioner, in accordance with this section, refers a matter to the committee appointed for the purposes of this section, the committee may, 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 or consents, as the case may be, be removed from the body of the child for transplantation to the body of the other person therein referred to, authorise, by instrument in writing, the removal of that tissue for the purpose of transplantation to the body of that other person.
Division 4—Effect of consents and authorities
15 	Effect of consent under s 8
	Subject to section 19, a document that purports to be a consent given in accordance with section 8 is, where a certificate has been given in accordance with section 10 in relation to that consent, sufficient authority for a medical practitioner, other than the medical practitioner who gave the certificate, to remove the regenerative tissue specified in the consent for the purpose or the use, as the case may be, specified in the consent.
16 	Effect of consent under s 9
	Subject to section 19, a document that purports to be a consent given in accordance with section 9 is, where a certificate has been given in accordance with section 10 in relation to that consent, sufficient authority for a medical practitioner, other than the medical practitioner who gave the certificate, to remove, at any time after the expiration of 24 hours from the time specified in the consent to be the time at which the consent was given, the non-regenerative tissue specified in the consent for the purpose of the transplantation of the tissue to the body of another living person.
16A 	Effect of consent by Guardianship and Management Tribunal
	Subject to section 19, an order under section 70 of the Guardianship and Management of Property Act 1991 consenting to the removal of specified non-regenerative tissue from a person for transplantation is sufficient authority for a medical practitioner to remove, at any time after 24 hours after the time the order was made, the non-regenerative tissue specified in the order for the purpose of transplantation of the tissue to the body of another living person.
17 	Effect of consent under s 13
	Subject to section 19, a document that purports to be a consent given in accordance with subsection 13 (1) is, where a certificate has been given in accordance with subsection 13 (2) in relation to that consent, sufficient authority for a medical practitioner, other than the medical practitioner who gave the certificate, to remove the regenerative tissue specified in the consent for the purpose specified in the consent.
18 	Effect of authority under s 14
(1) 	Subject to subsection (2), an authority given in accordance with section 14 by the committee established for the purposes of that section is sufficient authority for a medical practitioner, other than the medical practitioner who gave a certificate in accordance with that section, to remove, at any time after the expiration of 24 hours from the time at which the latest relevant consent under subsection 14 (1) was given, the non-regenerative tissue specified in the authority for the purpose of transplantation to the body of the other person referred to in the authority.
(2) 	Subsection (1) does not apply in relation to a medical practitioner—
	(a)	who has been informed—
	(i)	that a consent given under subsection 14 (1) that is relevant in relation to the authority has been revoked; or
	(ii)	that the child referred to in the consent is no longer in agreement with the removal and transplantation of the tissue specified in the authority; or
	(b)	who knows or has reasonable grounds for suspecting that the certificate given in accordance with section 14 that is relevant in relation to the authority contains a false statement.
19 	When written consent is not sufficient authority
(1) 	A document that purports to be a consent given in accordance with section 8 or 9 or with subsection 13 (1) is not sufficient authority for a medical practitioner to remove tissue if—
	(a)	the medical practitioner has been informed that the consent has been revoked; or
	(b)	the medical practitioner knows or has reasonable grounds for suspecting that a certificate given for the purpose of section 10 or subsection 13 (2), as the case may be, in relation to that document contains a false statement; or
	(c)	in the case of a document that purports to be a consent given in accordance with subsection 13 (1)—the medical practitioner has been informed that the child is no longer in agreement with the removal and transplantation of the tissue.
(2) 	A document that purports to be an order of the kind mentioned in section 16A is not sufficient authority for a medical practitioner to remove tissue if the medical practitioner has been informed that the order has been revoked.
Division 5—Blood transfusions
20 	Consents by persons 16 years old or older to removal of blood
	A person, other than a child under 16 years old, who is of sound mind may consent to the removal of blood from his or her body—
	(a)	for transfusion to another person; or
	(b)	for the purpose of the use of the blood or of any of its constituents for other therapeutic purposes or for medical or scientific purposes.
21 	Consents to removal of blood from children under 16 years old
	The parent of a child under 16 years old may consent to the removal of blood from the body of the child for a purpose referred to in section 20 if—
	(a)	a medical practitioner advises that the removal is not likely to be prejudicial to the health of the child; and
	(b)	the child agrees to the removal.
22 	Consent to be sufficient authority for removal of blood at certain places
	A consent duly given under section 20 or 21 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—
	(a)	at a hospital; or
	(b)	at premises, or in a vehicle, used by the Australian Red Cross Society, or by another body approved by the Minister for the purpose of this Division, for the removal of blood from the bodies of persons.
23 	Administration of blood transfusions to children without parental consent
(1) 	In this section:
blood transfusion means the transfusion of human blood or any of the constituents of human blood.
child means a person who has not attained the age of 18 years.
(2) 	The operation of removing all or part of the blood of a person and replacing it with blood taken from another person shall, for the purposes of this section, be deemed to be a blood transfusion.
(3) 	Subject to subsection (4), a medical practitioner may administer a blood transfusion to a child without the consent of a parent of the child or a person having authority to consent to the administration of the transfusion if—
	(a)	that medical practitioner and at least 1 other medical practitioner are of the opinion that the child is in danger of dying and that the administration of a blood transfusion to the child is the best means of preventing the death of the child; and
	(b)	the firstmentioned medical practitioner has satisfied himself or herself that the blood to be transfused is compatible with the blood of the child.
(4) 	A medical practitioner is not entitled to administer a blood transfusion to a child in pursuance of subsection (3) unless—
	(a)	a parent of the child, or a person having authority to consent to the administration of the transfusion, upon being asked to consent to the administration of the transfusion, has failed to give his or her consent; or
	(b)	the medical practitioner is of the opinion that, in the circumstances, it is not practicable to delay the administration of the transfusion until the consent of a parent of the child or a person having authority to consent to the administration of the transfusion can be obtained.
(5) 	Where a blood transfusion is administered to a child in accordance with this section, the transfusion shall, for all purposes, be deemed to have been administered with the consent of a parent of the child or a person having authority to consent to the administration of the transfusion.
(6) 	Nothing in this section relieves a medical practitioner from liability in respect of the administration of a blood transfusion to a child, being a liability to which he or she would have been subject if the transfusion had been administered with the consent of a parent of the child or a person having authority to consent to the administration of the transfusion.
Division 6—Revocation of consent or agreement
24 	Revocation of consent
(1) 	A reference in this section, in relation to a consent given for the purposes of this Act, to the donor shall be read—
	(a)	in a case in which the consent is given in respect of a child—as a reference to the child; and
	(b)	in any other case—as a reference to the person who gave the consent.
(2) 	A person who gives a consent for the purposes of this Act may at any time thereafter revoke that consent by indicating, either orally or in writing—
	(a)	where the donor, in relation to that consent, is a patient in a hospital—
	(i)	to a designated officer for that hospital; or
	(ii)	to a medical practitioner who is attending the donor in a professional capacity; or
	(iii)	to a registered nurse or enrolled nurse employed at that hospital; and
	(b)	where the donor is not a patient in a hospital—to a medical practitioner who is attending the donor in a professional capacity;
that the consent is revoked.
(3) 	Where—
	(a)	the donor is a patient in a hospital; and
	(b)	the person who gave the consent for the purposes of this Act indicates to a person referred to in subparagraph (2) (a) (ii) or (iii) that the consent is revoked;
that person shall inform a designated officer for that hospital forthwith of the revocation of the consent.
(4) 	Where a person revokes his or her consent in accordance with subsection (2)—
	(a)	if the donor is a patient in a hospital at the time of the revocation—the designated officer for the hospital to whom the revocation is communicated in accordance with subsection (2) or (3); or
	(b)	if the donor is not a patient in a hospital at that time—the medical practitioner to whom the revocation is communicated;
shall, if it appears to him or her, after making such inquiries (if any) as are reasonable in the circumstances, that a medical practitioner is proposing to rely on the consent in connection with the removal of tissue from the body of the donor, inform that medical practitioner forthwith that the consent has been revoked.
(5) 	Where a consent is revoked, a person who has in his or her possession the instrument of consent shall, upon being informed by a designated officer for a hospital or by the medical practitioner to whom the revocation is communicated that the consent has been revoked, surrender—
	(a)	that instrument; and
	(b)	if a certificate given in accordance with section 10 or with subsection 13 (2) or 14 (3) is in his or her possession, being a certificate relating to the consent—that certificate;
to the person who gave the consent.
25 	Child no longer in agreement with removal and transplantation
(1) 	Where a medical practitioner has given a certificate in accordance with subsection 13 (2) or 14 (3) and the child in relation to whom the certificate has been given informs—
	(a)	if the child is a patient in a hospital—
	(i)	a designated officer for that hospital; or
	(ii)	a medical practitioner who is attending the child in a professional capacity; or
	(iii)	a registered nurse or enrolled nurse employed at that hospital; and
	(b)	if the child is not a patient in a hospital—a medical practitioner who is attending the child in a professional capacity;
that he or she is no longer in agreement with the proposed removal and transplantation of tissue, subsections (2) to (4) have effect.
(2) 	Where—
	(a)	the child is a patient in a hospital; and
	(b)	the person whom he or she so informs is a person referred to in subparagraph (1) (a) (ii) or (iii);
that person shall inform a designated officer for that hospital forthwith that the child is no longer in agreement with the proposed removal and transplantation of tissue.
(3) 	The designated officer for the hospital or, where the child is not a patient in a hospital, the medical practitioner who is attending the child in a professional capacity shall, if it appears to him or her, after making such inquiries (if any) as are reasonable in the circumstances, that a medical practitioner is proposing to remove the tissue from the body of the child, inform that medical practitioner forthwith that the child is no longer in agreement with the proposed removal and transplantation of tissue.
(4) 	A person who is informed that the child is no longer in agreement with the proposed removal and transplantation of tissue shall, if he or she has in his or her possession the instrument of consent that relates to the removal and transplantation of the tissue, surrender—
	(a)	that instrument; and
	(b)	if the certificate given in accordance with subsection 13 (2) or 14 (3) is in his or her possession—that certificate;
to the person who gave the consent.

Part 3—Donations of Tissue After Death
26 	De facto spouses
	For the purposes of this Part, where a deceased person is survived by a person who, although not married to the deceased person, was at the time of the death of the deceased person living with the deceased person as that person’s husband or wife, as the case may be, on a permanent and bona fide domestic basis, that surviving person shall be taken—
	(a)	to have been married to the deceased person; and
	(b)	to have been the spouse of the deceased person immediately before his or her death.
27 	Authority to remove tissue where body of deceased at a hospital
(1) 	Subject to this Part, where it appears to a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances, that a deceased person who has died in the hospital or whose dead body has been brought into the hospital—
	(a)	had, during his or her lifetime, expressed the wish for, or consented to, the removal after his or her death of tissue from his or her body—
	(i)	for the purpose of the transplantation of the tissue to the body of a living person; or
	(ii)	for the purpose of the use of the tissue for other therapeutic purposes or for medical or scientific purposes; and
	(b)	had not withdrawn the wish or revoked the consent;
the designated officer may, by instrument in writing, authorise the removal of tissue from the body of the deceased person for that purpose.
(2) 	Subject to this Part, where it appears to a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances in relation to a deceased person who has died in the hospital or whose dead body has been brought into the hospital, that—
	(a)	the designated officer is not authorised by subsection (1) to give an authority in respect of that person; and
	(b)	the deceased person had not, during his or her lifetime, expressed an objection to the removal of tissue from his or her body; and
	(c)	the senior available next of kin of the deceased person has not objected to the removal of tissue from the body of the deceased person;
the designated officer may, by instrument in writing, authorise the removal of tissue from the body of the deceased person for any of the purposes referred to in paragraph (1) (a).
(3) 	Where a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances, is unable to ascertain the existence or whereabouts of the next of kin of the deceased person, subsection (2) applies as if paragraph (c) were omitted.
(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 or she has no objection to the removal, after the death of the person, of tissue from 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 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of senior available next of kin in section 4, an objection by any 1 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.
28 	Authority to remove tissue where body of deceased not at a hospital
(1) 	Subject to this Part, where the body of a deceased person is at a place other than a hospital, the senior available next of kin of the deceased person may, 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 the purpose of the use of the tissue for other therapeutic purposes or for medical or scientific purposes.
(2) 	Where it appears to the senior available next of kin of the deceased person, after making such inquiries (if any) as are reasonable in the circumstances, that—
	(a)	the deceased person had, during his or her lifetime, expressed an objection to the removal of tissue from his or her body and had not withdrawn that 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 4 has an objection to the removal of tissue from the body of the deceased person;
the senior available next of kin shall not, under subsection (1), authorise the removal of tissue from the body of the deceased person.
(3) 	Where a deceased person, during his or her lifetime, expressed the wish for, or consented to, the removal after his or her death of tissue from his or her body for a purpose referred to in subsection (1) and the wish had not been withdrawn or the consent revoked, 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.
29 	Consent by a coroner
(1) 	This section applies to a deceased person—
	(a)	who has died in a manner or in circumstances referred to in subsection 13 (1) (other than paragraph 13 (1) (f)) of the Coroners Act 1997; or
	(b)	in respect of whom a medical practitioner has not given a certificate as to the cause of death; or
	(c)	in respect of whose death a coroner is required by the Attorney-General to hold an inquest.
(2) 	A designated officer for a hospital or a senior available next of kin, as the case may be, shall not authorise the removal of tissue from the body of a deceased person to whom this section applies unless the coroner has given his or her consent to the removal of the tissue.
(3) 	Subsection 28 (3) does not apply in relation to a deceased person to whom this section applies unless the coroner has given his or her consent to the removal of tissue from the body of the deceased person.
(4) 	The coroner may give a direction that his or her consent to the removal of tissue from the body of the person is not required and, in that event, subsections (2) and (3) do not apply to or in relation to the removal of tissue from the body of the person.
(5) 	A consent or direction by the coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(6) 	A consent or direction may be given orally by the coroner, and if so given, shall be confirmed in writing.
30 	Certificate of specialist etc required in certain situations
(1) 	Where—
	(a)	a person has died within the meaning of section 45; and
	(b)	at the time at which he or she died or at any time thereafter his or her respiration and the circulation of his or her blood were being maintained by artificial means;
a designated officer for a hospital shall not give an authority under this Part in respect of that deceased person unless 2 medical practitioners, each of whom has been for a period of not less than 5 years a medical practitioner and 1 of whom is a specialist neurologist or neurosurgeon or has such other qualifications as are prescribed, have each certified in writing—
	(c)	that he or she carried out a clinical examination of the person while the respiration and the circulation of the blood of that person were being maintained by artificial means; and
	(d)	that, in his or her opinion, at the time of that examination, irreversible cessation of all function of the brain of the person had already occurred.
Maximum penalty:  50 penalty units.
(2) 	For the purposes of subsection (1), 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 place outside Australia shall be taken into account in calculating the period of 5 years referred to in that subsection.
31 	Effect of authority under pt 3
(1) 	An authority under this Part is sufficient authority for a medical practitioner other than—
	(a)	a medical practitioner referred to in subsection 30 (1); and
	(b)	in a case to which section 27 applies—the designated officer for the hospital who gave the authority;
to remove tissue from the body of the deceased person referred to in the authority for the purpose referred to in the authority.
(1A) 	Without limiting subsection (1), an authority under this Part which authorises the removal of tissue for the purpose of corneal transplantation (whether or not it authorises the removal of tissue for any other purpose) is sufficient authority for a person other than a medical practitioner to remove tissue from the body of the deceased person referred to in the authority for the purpose of corneal transplantation if the person—
	(a)	is authorised in writing by the chief health officer to remove tissue for the purpose of corneal transplantation; and
	(b)	is not the person by whom the firstmentioned authority was given.
(2) 	A contravention by a designated officer of subsection 30 (1) in relation to the giving of an authority does not affect the validity of the authority.
(3) 	In this section:
chief health officer means the chief health officer under the Public Health Act 1997.

Part 4—Post-Mortem Examinations
32 	Authority for post-mortem examination
(1) 	Subject to section 34, where it appears to a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances, that a deceased person who has died in the hospital or whose dead body has been brought into the hospital—
	(a)	had, during his or her lifetime, expressed the wish for, or consented to, a post-mortem examination of his or her body for the purpose of investigating the cause of his or her death; and
	(b)	had not withdrawn the wish or revoked the consent;
the designated officer may, by instrument in writing, authorise a post-mortem examination of the body of the deceased person for that purpose.
(2) 	Subject to section 34, where it appears to a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances in relation to a deceased person who has died in the hospital or whose dead body has been brought into the hospital, that—
	(a)	the designated officer is not authorised by subsection (1) to give an authority in respect of that person; and
	(b)	the deceased person had not, during his or her lifetime, expressed an objection to the post-mortem examination of his or her body; and
	(c)	the senior available next of kin of the deceased person has not objected to a post-mortem examination of the body of the deceased person;
the designated officer may, by instrument in writing, authorise a post-mortem examination of the body of the deceased person for the purpose of investigating the cause of the death of that person.
(3) 	Where a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances, is unable to ascertain the existence or whereabouts of the next of kin of the deceased person, subsection (2) applies as if paragraph (c) of that subsection were omitted.
(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 or she has no objection to a post-mortem examination of the body of the person, but the designated officer shall not act on such an indication if the person recovers consciousness.
(5) 	Where there are 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of senior available next of kin in section 4, an objection by any 1 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.
33 	Authority for post-mortem examination where body of deceased not at a hospital
(1) 	Subject to this Part, where the body of a deceased person is at a place other than a hospital, the senior available next of kin of the deceased person may, by instrument in writing, authorise a post-mortem examination of the body of the deceased person for the purpose of investigating the cause of the death of that person.
(2) 	Where it appears to the senior available next of kin of the deceased person, after making such inquiries (if any) as are reasonable in the circumstances, that—
	(a)	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)	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 4 has an objection to the post-mortem examination of the body of the deceased person;
the senior available next of kin shall not, under subsection (1), authorise the post-mortem examination of the body of the deceased person.
(3) 	Where a deceased person, during his or her lifetime, expressed the wish for, or consented to, a post-mortem examination of his or her body and the wish had not been withdrawn or the consent revoked, a post-mortem examination of the body of the deceased person in accordance with the wish or consent is, by force of this subsection, hereby authorised.
34 	Consent by a coroner
(1) 	This section applies to a deceased person—
	(a)	who had died in a manner or in circumstances referred to in subsection 13 (1) (other than paragraph 13 (1) (f)) of the Coroners Act 1997; or
	(b)	in respect of whom a medical practitioner has not given a certificate as to the cause of death; or
	(c)	in respect of whose death a coroner is required by the Attorney-General to hold an inquest.
(2) 	The designated officer for a hospital or a senior available next of kin, as the case may be, shall not authorise a post-mortem examination of the body of a deceased person to whom this section applies unless the coroner has given his or her consent to the examination.
(3) 	Subsection 33 (3) does not apply in relation to a deceased person to whom this section applies unless the coroner has given his or her consent to the post-mortem examination of the body of the deceased person.
(4) 	The coroner may give a direction that his or her consent to the removal of tissue from the body of the person is not required and, in that event, subsections (2) and (3) do not apply to or in relation to the removal of tissue from the body of the person.
(5) 	A consent or direction by the coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(6) 	A consent or direction may be given orally by the coroner and, if so given, shall be confirmed in writing.
35 	Effect of authority under pt 4
(1) 	An authority under this Part is sufficient authority for a medical practitioner (other than, in a case to which section 32 applies, the designated officer for the hospital who gave the authority)—
	(a)	to conduct such examination of the body of the deceased person as is necessary for the purpose of investigating the cause of the death of the person; and
	(b)	to remove from the body of the person such tissue as is necessary for the purpose of the post-mortem examination.

Part 5—Donations for Anatomical Purposes
36 	Meaning of school of anatomy
	In this Part:
school of anatomy means—
	(a)	a school of anatomy established under a law of the Territory or Commonwealth; or
	(b)	a school of anatomy the conduct of which is authorised under this Act; or
	(c)	a place that is, by virtue of subsection 42 (4), to be deemed to be a school of anatomy for the purposes of this Act and the regulations; or
	(d)	a school of anatomy that is licensed under a law of a State.
37 	Authority for anatomy where body of deceased at a hospital
(1) 	Subject to section 39, where it appears to a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances in relation to a deceased person who has died in the hospital or whose dead body has been brought into the hospital, that—
	(a)	the deceased person had not, during his or her lifetime, expressed an objection to the retention after his or her death of his or her body—
	(i)	for the purpose of anatomical examination; or
	(ii)	for the purpose of the use of his or her body for the study and teaching of the anatomy of the human body; and
	(b)	the senior available next of kin of the deceased person has no objection to the retention of the body of the deceased person for a purpose referred to in paragraph (a);
the designated officer may, by instrument in writing, authorise the retention and use of the body of the deceased person at a school of anatomy for any of the purposes referred to in paragraph (a).
(2) 	Where a designated officer for a hospital, after making such inquiries as are reasonable in the circumstances, is unable to ascertain the existence or whereabouts of the next of kin of the deceased person, subsection (1) applies as if paragraph (b) were omitted.
(3) 	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 or she has no objection to the retention 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.
(4) 	Where there are 2 or more persons having a description referred to in a subparagraph of paragraph (a) or (b) of the definition of senior available next of kin in section 4, an objection by any 1 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.
38 	Authority for anatomy where body of deceased not at a hospital
(1) 	Subject to this Part, where the body of a deceased person is at a place other than a hospital, the senior available next of kin of the deceased person may, by instrument in writing, authorise the retention and use of the body of the deceased person at a school of anatomy—
	(a)	for the purpose of anatomical examination; or
	(b)	for the purpose of the use of the body for the study and teaching of the anatomy of the human body.
(2) 	Where it appears to the senior available next of kin of the deceased person, after making such inquiries (if any) as are reasonable in the circumstances, that—
	(a)	the deceased person had, during his or her lifetime, expressed an objection to the retention of his or her body for a purpose referred to in subsection (1) and had not withdrawn that 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 4 has an objection to the retention of the body of the deceased person for that purpose;
the senior available next of kin shall not, under subsection (1), authorise the retention and use of the body of the deceased person for that purpose at a school of anatomy.
39 	Provisions applicable where deceased person consented to retention of his or her body for anatomy
	Where a deceased person, during his or her lifetime, expressed the wish for, or consented to, the use of his or her body after his or her death for a purpose referred to in subsection 37 (1) and the wish had not been withdrawn or the consent revoked, the removal of the body of the deceased person to a school of anatomy and the use of the body at such a school for a purpose specified in subsection 37 (1) is hereby authorised.
40 	Consent by a coroner
(1) 	This section applies to a deceased person—
	(a)	who has died in a manner or in circumstances referred to in subsection 13 (1) (other than paragraph 13 (1) (f)) of the Coroners Act 1997; or
	(b)	in respect of whom a medical practitioner has not given a certificate as to the cause of death; or
	(c)	in respect of whose death a coroner is required by the Attorney-General to hold an inquest.
(2) 	The designated officer for a hospital or a senior available next of kin shall not, in relation to the body of a deceased person to whom this section applies, give an authority under subsection 37 (1) or 38 (1), as the case may be, except with the consent of the coroner.
(3) 	Section 39 does not apply in relation to a deceased person to whom this section applies unless the coroner has given his or her permission for the body of the deceased person to be dealt with in accordance with that section.
(4) 	The coroner may give a direction that his or her consent to the removal of tissue from the body of the person is not required and, in that event, subsections (2) and (3) do not apply to or in relation to the removal of tissue from the body of the person.
(5) 	A consent or direction by the coroner under this section may be expressed to be subject to such conditions as are specified in the consent or the direction.
(6) 	A consent or direction may be given orally by the coroner, and if so given, shall be confirmed in writing.
41 	Effect of authority under pt 5
	An authority under this Part is, for the purposes of the law of the Territory, sufficient authority for the removal of the body of the deceased person to a school of anatomy and for its retention and use at such a school for a purpose specified in subsection 37 (1).

Part 6—Schools of Anatomy
42 	Schools of anatomy
(1) 	The Minister may, by notice published in the Gazette, authorise the conduct within a specified educational institution of a school of anatomy for the teaching and study of anatomy and for the carrying on of the practice of anatomy.
(2) 	A notice under subsection (1) may specify that the school of anatomy, the conduct of which is so authorised, shall be concerned only with the teaching and study of the anatomy of such part of the human body as is specified in the notice.
(3) 	The Minister may, by notice published in the Gazette, authorise the carrying out of anatomical examinations and the teaching and study of the anatomy of the whole or a specified part of the human body at a place, not being a place within an educational institution, specified in the notice.
(4) 	A place specified in a notice under subsection (3) shall be deemed for the purposes of this Act and the regulations to be a school of anatomy.
43 	Regulations for the control etc of schools of anatomy
(1) 	The regulations may make provision for and in relation to—
	(a)	the manner in which bodies may be transported 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 internment or cremation of bodies; and
	(e)	the inspection of schools of anatomy; and
	(f)	the regulation and control of schools of anatomy.
(2) 	Regulations under this Act making provision for or in relation to a matter specified in paragraph (1) (b), (c), (e) or (f) shall not be expressed to apply to or in relation to a school of anatomy other than one established in accordance with an authority given under section 42.

Part 7—Prohibition of Trading in Tissue
44 	Certain contracts not to be entered into
(1) 	Subject to this section, a person shall not enter into a contract or arrangement under which a person agrees, for valuable consideration, whether given or to be given to himself or herself or to another person—
	(a)	to the sale or supply of tissue from his or her body or from the body of another person, whether before or after his or her death or the death of the other person, as the case may be; or
	(b)	to the post-mortem examination or anatomical examination of his or her body after his or her death or of the body of another person after the death of the other person.
Maximum penalty:   50 penalty units.
(2) 	Subsection (1) does not apply to or in relation to the sale or supply of tissue other than blood or any of its constituents 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 or scientific purposes.
(3) 	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.
(4) 	Where he or she considers it 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 by virtue of subsection (5) and nothing in subsection (1) or (5) applies to and in relation to a contract or agreement entered into in accordance with an approval under this subsection.
(5) 	A contract or arrangement entered into in contravention of this section is void.

Part 8—Definition of Death
45 	When death occurs
	For the purposes of the law of the Territory, a person has died when there has occurred—
	(a)	irreversible cessation of all function of the brain of the person; or
	(b)	irreversible cessation of circulation of blood in the body of the person.

Part 9—Miscellaneous
46 	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 the 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 tissues 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 internment or cremation.
(2) 	In paragraphs (1) (a) and (b):
tissue—see section 6 (Meaning of tissue in pt 2).
47 	Exclusion of liability of person acting in pursuance of consent or authority
(1) 	Subject to subsection (2), where—
	(a)	a person carries out a procedure; and
	(b)	a consent or authority given under this Act is sufficient authority under this Act for that person to carry out that procedure;
that person is not liable to any other person in respect of anything done or omitted to be done by that firstmentioned person in the carrying out of that procedure.
(2) 	Nothing in this section relieves a person from liability for negligence in respect of anything done or omitted to be done by him or her in the carrying out of a procedure.
48 	Offences
(1) 	A person shall not remove tissue from the body of a person, whether living or dead, except in accordance with a consent or authority that is, under this Act, sufficient authority for the removal of the tissue by that person.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(2) 	A person shall not conduct a post-mortem examination of the body of a deceased person except in accordance with an authority that is, under this Act, sufficient authority for that person to conduct the post-mortem examination.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(3)	A person shall not—
	(a)	remove the body of a deceased person to a school of anatomy; or
	(b)	use the body of a deceased person for a purpose specified in subsection 37 (1);
except in accordance with an authority that is, under this Act, sufficient authority for such removal or use of the body for that purpose.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(4) 	A person who—
	(a)	gives an authority under this Act without having made the inquiries that he or she is required by this Act to make; or
	(b)	makes a false statement in a certificate given for the purposes of this Act; or
	(c)	contravenes or fails to comply with a provision of Division 6 of Part 2;
commits an offence.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(5) 	Nothing in subsection (1) or (2) applies to or in relation to—
	(a)	anything done in pursuance of an order by the coroner under the Coroners Act 1997; or
	(b)	any other act authorised by law.
49 	Disclosure of information
(1) 	Subject to this section, a person to whom this section applies shall not disclose or give to any other person any information or document whereby the identity of a person or a deceased person—
	(a)	from whose body tissue other than blood has been removed for the purpose of transplantation or for the purpose of the use of the tissue for other therapeutic purposes or for medical or scientific purposes; or
	(b)	with respect to whom or with respect to whose body a consent, other than a consent under section 20, or authority has been given under this Act; or
	(c)	into whose body tissue other than blood has been, is being, or may be, transplanted;
may become publicly known.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(2) 	Subject to this section, a person to whom this section applies shall not disclose or give to any other person any information or document whereby the identity of a child from whose body blood has been removed for a purpose referred to in section 20 may become publicly known.
Maximum penalty:   50 penalty units, imprisonment for 6 months or both. 
(3) 	This section applies—
	(a)	where a consent has been given in accordance with this Act—to a medical practitioner who gave a certificate in relation to the consent; and
	(b)	where an authority has been given in accordance with this Act by a designated officer for a hospital—to the designated officer; and
	(c)	where tissue has been removed from the body of a person or a deceased person—the medical practitioner or the person authorised by the chief health officer under subsection 31 (1A) who removed the tissue and, if the tissue was removed at a hospital, each person who was employed at the hospital at the time of the removal of the tissue or has since been employed at the hospital; and
	(d)	where tissue has been transplanted into the body of a person—to the medical practitioner who performed the transplantation and, if the tissue was transplanted at a hospital, each person who was employed at the hospital at the time of the transplantation or has since been employed at the hospital; and
	(e)	where it is proposed that tissue will be transplanted into the body of a person—to the medical practitioner who is to perform the transplantation and, if the tissue is to be transplanted at a hospital, each person who is employed at the hospital or who becomes so employed.
(4) 	Subsections (1) and (2) do not apply to or in relation to 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.
51 	Regulation-making power
	The Executive may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted to be prescribed by this Act or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and in particular for prescribing penalties not exceeding 10 penalty units for offences against the regulations.

ENDNOTES
1	About this republication
This is a republication of the Transplantation and Anatomy Act 1978 as in force on 
23 October 2000.  It includes all amendments made to the Act up to Act 2000 No 45.
Amending and modifying laws are annotated in the table of legislation and table of amendments.  However, any current modifications are not included in the republished Act but are set out in the endnotes.
The Parliamentary Counsel’s Office currently prepares 2 kinds of republications of ACT laws:  authorised printed republications to which the Legislation (Republication) Act 1996 applies and unauthorised electronic republications.  The status of a republication appears on its cover and is indicated by its republication number.
A republication number without a letter (eg 1, 2, 3 etc) indicates that the republication is an authorised printed republication.  A number with a letter (eg 1A, 1B, 1C etc) indicates that the republication is an unauthorised electronic republication.
Section 13 of the Legislation (Republication) Act 1996 authorises the Parliamentary Counsel, in preparing a law for republication, to make textual amendments of a formal nature which the Parliamentary Counsel considers desirable in accordance with current legislative drafting practice.  The amendments do not effect a substantive change in the law.
In preparing this republication, amendments have not been made under section 13.
Not all amendments made under section 13 are annotated in the table of amendments.  Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
2	About the republished Act
The Transplantation and Anatomy Act 1978 was originally the Transplantation and Anatomy Ordinance 1978.  It became an ACT Act on self-government (11 May 1989).
3	Abbreviation key
Key to abbreviations in tables

am = amended
amdt = amendment
ch = chapter
cl = clause
def = definition
dict = dictionary
div = division
exp = expires/expired
Gaz = Gazette
hdg = heading
ins = inserted/added
LR = Legislation (Republication) Act 1996
mod = modified
No = number
notfd = notified
o = order
om = omitted/repealed
orig = original
p = page
par = paragraph
pres = present
prev = previous
(prev...) = previously
prov = provision
pt = part
r = rule/subrule
reg = regulation/subregulation
renum = renumbered
reloc = relocated
R[X] = Republication No
s = section/subsection
sch = schedule
sdiv = subdivision
sub = substituted
SL  = Subordinate Law
sp = spent
*    SL unless otherwise stated
†   Act or Ordinance unless otherwise stated

4	Table of legislation
Part 1—Legislation before self-government
Ordinance†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Transplantation and Anatomy Ordinance 1978	1978 No 44	19 Dec 1978	29 Dec 1978 (see Gaz 1978 No S290)		
Community and Health Service (Consequential Provisions) Ordinance 1988	1988 No 29	30 June 1988	2 July 1988	s 4	
Nurses (Consequential Amendments) Ordinance 1988	1988 No 62	7 Sept 1988	5 Dec 1988 (see Gaz 1988 No S369)	—	
Self-Government (Consequential Amendments) Ordinance 1989	1989 No 38	10 May 1989	ss 1 and 2:  10 May 1989
remainder:  11 May 1989 (see s 2 (2) and Gaz 1989 No S164)	—	
Part 2—Legislation after self-government
Act†	Year and number†	Gazette
notification	Commencement	Transitional provisions	

Health Services (Consequential Provisions) Act 1990	1990 No 63	28 Dec 1990	ss 1 and 2:  28 Dec 1990
remainder:  1 Jan 1991 (see s 2 (2) and Gaz 1991 No S4)	ss 6-17	
Guardianship and Management of Property (Consequential Provisions) Act 1991	1991 No 63	31 Oct 1991	ss 1 and 2:  31 Oct 1991
remainder:  7 Jan 1992 (see s 2 (2) and Gaz 1991 No S147 p 2)	—	
Health (Consequential Provisions) Act 1993	1993 No 14	1 Mar 1993	1 Mar 1993 (see 
s 2)	pts IV-VI (ss 14-34)	
Coroners (Consequential Provisions) Act 1997	1997 No 58	9 Oct 1997	9 Oct 1997	—	
Statute Law Revision (Penalties) Act 1998	1998 No 54	27 Nov 1998	ss 1 and 2:  27 Nov 1998
remainder:  9 Dec 1998 (see Gaz 1998 No 49 p 1078)	—	
Transplantation and Anatomy (Amendment) Act 1999	1999 No 6	1 Mar 1999	1 Mar 1999	—	
Transplantation and Anatomy Amendment Act 2000
	2000 No 45	28 Sept 2000	28 Sept 2000	—	

5	Table of amendments

Provision	How affected†

s 2, 3	exp R4 (LR  s 15 (1) (o) (iv))
s 4	am 1988 Nos 29 and 62; 1990 No 63; 1993 No 14
s 5	am 1988 No 29; 1990 No 63; 1993 No 14
s 16A	ins 1991 No 63
s 19	am 1991 No 63
hdg to s 20	sub 2000 No 45 s 4
s 20	am 2000 No 45 s 4
hdg to s 21	sub 2000 No 45 s 5
s 21	am 2000 No 45 s 5
ss 24, 25	am 1988 No 62
s 29	am 1989 No 38; 1997 No 58
s 30	am 1998 No 54
s 31	am 1999 No 6
s 34	am 1989 No 38; 1997 No 58
s 35	am 1997 No 58
s 36	am 1989 No 38
s 40	am 1989 No 38; 1997 No 58
s 44	am 1998 No 54
s 48	am 1997 No 58; 1998 No 54
s 49	am 1998 No 54; 1999 No 6
s 50	exp R4 (LR s 15 (1) (o) (iv))
s 51	am 1989 No 38; 1998 No 54

6	Table of earlier republications
Amendments to	Cut-off date	Republication number	
Act 1990 No 63	30 September 1991	(1)	
Act 1993 No 14	30 April 1993	(2)	
Act 1999 No 6	31 March 1999	(3)	
Act 2000 No 45	23 October 2000	4	
7	Penalties in this republication
The penalties in this republication have been revised in accordance with the Interpretation Act 1967, s 63.  The value of a penalty unit for an offence against this Act at the date of publication is, therefore—
	(a)	if the person charged is an individual—$100; or
	(b)	if the person charged is a corporation—$500.
See Interpretation Act 1967, s 33AA for additional information.

©  Australian Capital Territory 2000

The Copyright Act 1968 (Cwlth) permits certain reproduction and publication of this legislation.  For reproduction or publication beyond that permitted by the Act, written permission must be sought from the Government Printer, c/o Information Management and Libraries, Department of Urban Services, ACT Government, GPO Box 158, Canberra City ACT 2601.