LC Paper No. LS 92/98-99
Paper for the House Committee MeetingObject(s) of the Bill
of the Legislative Council
on 15 January 1999
Legal Service Division Report on
Human Organ Transplant (Amendment) Bill 1999
LegCo Brief Reference
- To specify that the fact of a marriage having subsisted for not less than 3 years shall be established by such means as prescribed by regulation made by the Human Organ Transplant Board; and
- To enable organ transplant be conducted on patients who could not understand explanation required to be given under existing requirements when certain conditions prescribed in the Bill are met.
2. HWCR 1/3231/98 II dated 7 January 1999 issued by the Health and Welfare Bureau. Date of First Reading
3. 13 January 1999.Background
4. Under section 5 of the Human Organ Transplant Ordinance (Cap. 465), an organ transplant in which the donor of the organ is a living person is prohibited unless :-
- the donor and the recipient are genetically related or have been married for not less than 3 years; or
- the Human Organ Transplant Board ("the Board") has given approval for the transplant.
In cases where the approval of the Board is required, the section specifies that the Board must be satisfied that, inter alia, a registered medical practitioner who is not removing or transplanting the organ has explained to both the donor and the recipient, and that both have understood, the procedure, the risk involved as well as their entitlement to withdraw consent to the transplant at any time.
5. Difficulty to give the explanation would be encountered in situations where the recipient was in a state of coma. In cases where the approval of the Board was required, the Board would be unable to give approval because not all the statutory requirements were met. This problem has attracted considerable public concern and has been raised for discussion in the LegCo Panel on Health Services.
6. Anticipating that the Administration would soon introduce an amendment bill, the House Committee formed the Subcommittee on Human Organ Transplant Ordinance on 20 November 1998 to start considering the matter, intending that the Subcommittee would become the Bills Committee once the amendment bill is introduced into the LegCo.Comments
7. The main object of this Bill is to provide in law a mechanism to deal with the difficulty mentioned in paragraph 5 above. The Bill proposes that, notwithstanding the non-compliance with the existing requirement to explain, the Board may still approve a transplant or, where the approval of the Board is not required, a medical practitioner may still perform a transplant, if:-
- a registered medical practitioner who is not removing or transplanting the organ has certified in writing that the recipient is incapable of understanding the required explanation by reason of illness, being a minor, or being a mental patient or mentally handicapped person within the meaning of the Mental Health Ordinance (Cap. 136);
- a registered medical practitioner who is not removing or transplanting the organ has certified in writing that it would not be in the best interests of the recipient to wait until he is capable to understand; and
- the registered medical practitioner who is to transplant the organ into the recipient has kept a report in writing stating the reason why the required explanation could not be given to the recipient.
8. The Bill makes it an offence for a person to knowingly or recklessly supply information or to make certification which is false or misleading in a material respect. The offence carries a fine at level 5 ($50,000 at present) and imprisonment for 3 months. The Bill also makes it an offence for a registered medical practitioner to transplant an organ into a recipient without the certificates mentioned in (a) and (b) above, or failing to submit to the Board within a prescribed period the documents mentioned in (a), (b) and (c) above. The offence carries a fine at level 5.
Consultation with LegCo
9. The Administration briefed the Subcommittee on Human Organ Transplant Ordinance on the Bill on 8 January 1998. Members of the Subcommittee were of the view that the Bill should be considered in detail by a Bills Committee.
10. The Bill proposes conditions to enable organ transplant be conducted in a situation where the recipient is unable to understand or give consent, and where the donor of the organ is a living person. The matter has social, legal and policy implications which merit detailed consideration. At the last meeting on 8 January 1999, the House Committee agreed that Members be invited to indicate their intention to join the Bills Committee on this Bill. The Secretariat has issued a circular (LC Paper No. CB(2)1031/98-99) to this effect and Members may reply by 12:00 midnight on Friday 15 January 1999.
Senior Assistant Legal Adviser
Legislative Council Secretariat
13 January 1999