LC Paper No. CB(2)1500/98-99
(These minutes have been seen
by the Administration)
Ref : CB2/HS/1/98
Subcommittee on Human Organ Transplant Ordinance
Members Present :
Minutes of the third meeting
held on Tuesday, 15 December 1998 at 8:30 am
in the Chamber of the Legislative Council Building
Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon Michael HO Mun-ka
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Andrew WONG Wang-fat, JP
Hon Jasper TSANG Yok-sing, JP
Hon YEUNG Yiu-chung
Hon Andrew CHENG Kar-foo
Public Officers Attending :
- Dr Hon TANG Siu-tong, JP
- Hon LAW Chi-kwong, JP
Clerk in Attendance:
- Mr Gregory LEUNG Wing-lup, JP
- Deputy Secretary for Health and Welfare 1
- Mr Eddie POON
- Principal Assistant Secretary for Health and Welfare (Medical) 3
- Mr Clement LAU Chung-kin
- Assistant Secretary for Health and Welfare (Medical) 6
- Mr TSE Man-shing
- Head of Boards & Councils Office
Staff in Attendance:
- Ms Doris CHAN
- Chief Assistant Secretary (2) 4
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Mrs Eleanor CHOW
- Senior Assistant Secretary (2) 4
The Chairman advised that Miss CHAN Yuen-han had withdrawn from the Subcommittee with immediate effect. The Subcommittee now comprised 12 members.
I. Meeting with the Administration
(LC Papers Nos. CB(2) 875/98-99(01) and (02))
2. The meeting agreed that paper (02) concerning the Administration's reply to comments on the Human Organ Transplant Ordinance (HOTO) should be discussed first. Members went through the paper item by item.
Items 1 and 2 - recipients incapable of understanding
3. The Chairman asked about the treatment for a patient who needed organ transplant and had lapsed into a comatose state when he arrived at the hospital. DSHW replied that under the circumstances, the exemption clause set out in paper (01) would apply.
4. Dr LEONG Che-hung expressed concern as to how the wish of a recipient would be handled in the event that he had made a list of organs that he would not accept for transplant, e.g. organs from non-vegetarians, Muslims, Christians, women, etc. He also raised the question of who should be responsible for verifying the organ to be transplanted from a specific person; whether a medical practitioner should proceed with organ transplant when the conditions specified by the recipient could not be verified; and who would be held responsible if a "wrong" organ had been transplanted. He emphasised that the responsibility should not fall on doctors and hospitals given that their role was to save life and not to carry out investigation.
5. Mr Michael HO said that although a recipient had the right to express his wish and to list out his conditions for receiving an organ, doctors and hospitals should not be responsible for ascertaining whether a donor had met the conditions and be held responsible if a 'wrong' organ was transplanted. He said that the responsibility might fall on the recipient's family.
6. The Chairman said that this was indeed a complicated issue. He said that the opt-out arrangement could be one of the possibilities to resolve the problem, i.e. unless a recipient had specified in writing a list of organs not to be received, otherwise it would be assumed that he would accept any donated organs. He said that if the opt-out alternative was to be implemented, it was necessary to amend the law. However, no matter how well it was drafted, one could not rule out that there would still be grey areas, although the degree of ambiguity might have been reduced. Whether the public could comprehend the implication of this complicated issue was another concern.
7. Dr LEONG Che-hung said that while he accepted that a recipient could express his wish of not receiving an organ from a specific live donor, he opposed giving the recipient the same right over cadaveric organ. If a recipient was allowed to select cadaveric organ, it would create a lot of operational problems and could paralyse organ transplant in Hong Kong. He also criticised recipients who acted out of sheer selfishness to refuse donation from live family members while accepting those from live non-family members. He said that the society should denounce such unethical behaviour.
8. In response to a question from Dr LEONG, DSHW explained that asking a recipient whether he had any specific requirements and ascertaining whether the donor had met the requirements were two different issues. While the former could be done by a medical practitioner, a nurse, a social worker, etc., the latter did not need to be done by a medical practitioner. The law only required a medical practitioner to explain to the donor and the recipient the procedure, the risk involved and his entitlement to withdraw consent at any time. A medical practitioner who had kept the recipients informed of the procedure would have fulfilled his responsibilities.
9. Dr LEONG Che-hung said that the problem of who should ascertain and verify the conditions must be resolved or it would lead to many problems. He said that a medical practitioner who carried out an organ transplant with good intent to save the life of a recipient might have dire consequences. For example, a vegetarian recipient who found out after an operation that the transplanted organ was not from a vegetarian, a condition that he had specified in his list, might take legal action against the medical practitioner.
10. Mr TSANG Yok-sing asked about the implications of carrying out an operation in violation of a recipient's wish and who would be held responsible. The Chairman said that there were various possibilities. For example, a vegetarian recipient who had recovered from an operation might become psychological sick for the rest of his life when he knew that an organ from a non-vegetarian was transplanted to his body. Either the operation was successful or unsuccessful, the medical practitioner and the hospital concerned might be subject to litigation. He said that it would not be fair or justified for a medical practitioner, who had acted in good will to save the life of a recipient, to bear the risk of committing a civil or criminal offence. Dr LEONG Che-hung added that the case would become even more complicated if the recipient recovered but the donor died from complications after the operation, and the donor was a person specified by the recipient as one he would refuse to receive an organ from.
11. The Chairman opined that the responsibility should rest with the recipient or his family and definitely not with the medical practitioners or hospitals, given that it was the recipient who exercised a choice and drew up the list of unwanted organs. He said that the practice was similar to existing medical procedure regarding a medical practitioner asking a patient to provide information on type(s) of medicine he was allergic to. A medical practitioner was not responsible for ascertaining whether the information given was correct. A recipient who was capable of understanding before an operation was carried out should verify and give consent to a specific organ to be transplanted to him. A recipient who had become unconscious should have informed his family of his wish in advance and asked his family members to ascertain the suitability of a donor.
12. Senior Assistant Legal Adviser (SALA) agreed that the recipient should state his wish beforehand, given that common law had provided a patient with absolute power in exercising his choice and giving consent to a treatment. Under common law, if a medical practitioner had treated a patient without his consent or despite a refusal of consent, it would constitute the civil wrong of trespass to the person and might constitute a crime. If the patient had made no choice and there was need for treatment, the medical practitioner could lawfully treat the patient in accordance with his clinical judgement of what was in the patient's best interests.
13. The Chairman pointed out that if too much risks were posed to medical practitioners, they would be deterred from practising organ transplant. Dr LEONG Che-hung concurred and said that if a recipient had drawn up a long list of unwanted organs, medical practitioners were likely to practise defensive medicine which would not be beneficial to the society. In response to a question from the Chairman, Dr LEONG said that with the rapid development of anti-rejection drugs, recipients had now more choices because disparity between a donor and a recipient could be overcome. Under the circumstances, matching tests in many cases were not necessary. An operation could be proceeded with when an organ was made available.
14. DSHW suggested that the donor should be the one to provide information on his personal particulars and to make statutory declaration that he was a vegetarian, a non-smoker, a Christian, etc. When a donor had declared his position which matched with the recipient's requirements, a medical practitioner could proceed with an operation. If the donor had given false information, the medical practitioner would not be liable for any consequence. Mr Michael HO added that the merit of practice would be similar to that of blood donation where a blood donor was required to declare that he/she did not have certain diseases. If a medical practitioner was not fully satisfied that an organ donor had met the conditions specified by the recipient or in doubt, he should not proceed with an operation, as the recipient's wish was very clear and should be respected.
15. The Chairman said that from legal point of view, if a donor did not meet the conditions laid down by the recipient, it would be tantamount to a recipient not giving his consent. He said that since the problem was created by a demanding recipient, the recipient should bear the responsibility. A medical practitioner who had informed the donor and the recipient about the procedure would have fulfilled his duties. He was not responsible for ascertaining the information given by the donor. If he was in doubt of the suitability of the donor, he should not proceed with the operation. The Chairman said that the HOTO should be amended to reflect the responsibilities of medical practitioners and hospitals in this respect. Addressing the concerns of Dr LEONG about recipients making a long list of conditions, the Chairman said that with or without the law, recipients were entitled to express their wishes.
16. Mr TSANG Yok-sing said that one of the reasons for amending the HOTO was to provide flexibility to handle recipients who had become unconscious. When a recipient was not in a critical condition, he might have expressed his wish of not receiving an organ from his family members as he would rather wait for cadaveric donation. After he became unconscious, his family members might insist on donating an organ. Under the circumstances, if a medical practitioner adhered to the rules and rejected the donation, the family and the public would criticise the medical practitioner for not having regard to the feeling of the family and putting law above the life of a person. He held the view that any amendment to be made to the HOTO should allow medical practitioners exercise flexibility.
17. The Chairman said that the problem raised by Mr TSANG was discussed at the last meeting and there was no solution as such. Mr TSANG did not agree and said that the problem could be resolved if the common law practice for medical treatment was applied to an unconscious recipient. The Chairman replied that medical treatment was different from organ transplant because a third party was involved in the latter case. Mr TSANG responded that the third party was not a problem because he had agreed to the donation, or alternatively the medical practitioner could seek a court order to carry out an operation.
18. The Chairman held the view that the wish of a patient must be respected. He said that if a patient had refused to give consent to a medical treatment, as in the case of certain religion which specifically did not believe in operation, there was nothing a medical practitioner could do. Similarly for an organ transplant, if a recipient had expressly indicated that he would not receive an organ from a specific live donor, the medical practitioner could not act against his will. There would be dire consequences if both the recipient and the donor died after the medical practitioner exercised his discretion to proceed with the operation. Mr Michael HO agreed with the Chairman. Dr LEONG Che-hung said that while Mr TSANG's intention was good, the wish of a patient could not be ignored under common law.
19. In response to members, SALA confirmed that under common law, the wish of a patient was paramount and even the court could not impose an order on him. The Chairman said that he fully understood the feeling of the recipients' family but one must abide by the rule of law. He cautioned that allowing exception might bring more harm than good, as it might upset the equilibrium of the society.
Item 3 - commercial dealing
Proof of no commercial dealing
20. Dr LEONG Che-hung said that while he agreed with the Administration that it was difficult to set hard and fast rules on establishing facts of commercial dealings under section 5(4)(d) and (e), he was concerned about the difficulties of the Board in making a decision in the absence of such rules. He said that the Board was under undue pressure and it was important that the law should be clearly written to minimise ambiguity to facilitate the work of the Board. According to the reply of the Administration, the Board would look for the existence of emotional tie between the donor and the recipient to help ascertain whether there were commercial dealings involved. He pointed out there were different degrees of emotional tie, not to mention that the existence of emotional tie did not necessarily preclude the possibility of commercial dealings. In this regard, it would be useful if there were guidelines for the Board to follow. He emphasized that the arrangement for the Board must be fair in order that the Board could make independent decision rather than rubber stamping applications for fear of its decision being challenged. Mr Michael HO commented that the existence and non-existence of emotional tie would depend very much on how stringent the tie was being measured.
21. DSHW replied that it was a difficult question to answer. The Administration considered that if guidelines were given, the law might become too rigid to the extent that it might deprive the Board of any discretion. He said that emotional tie was just one of the factors in ascertaining whether there were commercial dealings. Generally if a donor and a recipient did not know each other well, it was unlikely that the donor was willing to part with his organ without any reward. At the same time, a medical practitioner would be able to detect the relationship between the donor and the recipient, given that the patient had been under his care for quite some time. The way the law was drafted to a certain extent provided a deterrent to commercial dealings.
22. Head of Boards and Councils Office (HBCO) said that the Board had expressed on numerous occasions that it had difficulty in deciding what constituted sufficient proof of no commercial dealings. At present the Board adopted a liberal approach in determining an application in this regard. The Board would take into consideration the emotional tie between the donor and the recipient, the information supplied by the applicant, the integrity of the two persons concerned, and the best interests of the recipient. The Board would seek further information from the applicant if necessary. Mr Michael HO commented that the decision of the Board was mainly based on objective information and subjective judgement.
23. Mr YEUNG Yiu-chung asked that in the event a court ruled that there was no commercial dealing in an application which was disapproved by the Board, who would be held responsible.
24. The Chairman said that he personally was of the view that the Board did not have any legal responsibility of its decision. He considered that the Board should be exempted from any legal action as it had acted with due diligence. He recalled certain government departments also enjoyed similar protection conferred in law. He trusted that the Board would exercise due care given that a "wrong" decision would make Board members emotionally upset for the rest of their life. DSHW said that the responsibility of the Board was to make decisions. As long as a reasonable decision had been made in the circumstances, the Board had no legal liability.
25. Addressing members' concern about the working rule of the Board, HBCO said that the procedure for handling applications for living non-related transplant had been distributed to members at the special meeting of the Panel on Health Services on 23 November 1998. (Appendix VIII to LC Paper No. CB (2) 696/98-99(01)). He explained that the Secretariat, upon receipt of the application, would clarify any incomplete information with the applicant, who was the medical practitioner having clinical responsibility for the donor. It would also check whether the information provided therein had met the conditions and requirement contained in section 5(4) and (5) of the HOTO. A Board paper would then be prepared for consideration by Board members. The Board's decision of approving or disapproving an application would be reached either by circulation of papers or by calling a special meeting. For straightforward cases it would be done by circulation of paper. Members were required to indicate their decisions by completing and returning the reply slip. Individual members might submit their views or give reasons for his decision if he wanted to, as this was not a mandatory requirement. If any member was in doubt or considered that a meeting was desirable to discuss the application, then he could request the Secretary to convene a special meeting. The deliberations of the meeting and views of members would be recorded in the minutes of meeting through which one could understand the reasons for approving and disapproving an application. In response to the Chairman, HBCO said that a decision of approving and disapproving an application must be made by the majority of the Board, i.e. at least five members of the Board. DSHW supplemented that the existing Board consisted of a chairman who was not a registered medical practitioner, four medical practitioners, one social worker, one lawyer and two lay members.
26. Dr LEONG Che-hung said that applications rejected on moral grounds might be subject to challenge by the patient's family, since different people had different perspectives and values of life. HBCO replied that arguments on individual cases would be reflected in the minutes of the Board meeting.
Disclosure of reasons
27. Dr LEONG Che-hung asked whether the Board had been requested to provide reasons for rejected cases, and if not, was the Board prepared to do so. HBCO said that the Board could not exercise discretion over section 5(4)(a) to (c). If any one of the conditions could not be met, the application would be rejected and the reason behind was very clear. However, the Board had to exercise discretion over section 5(4)(d) and (e) in ascertaining whether commercial dealings were involved. To his understanding, there was no statutory requirement for the Board to disclose the reasons of the decision. However, in anticipation of future cases involving commercial dealings, he said that he would seek legal advice as to whether the Board was required to give explanation of its decision. Dr LEONG and Michael HO urged that the Board to seek legal opinion as soon as possible.
28. SALA explained that under the existing provision the Board could not give approval if not all the conditions stipulated in section 5(4) and 5(5) had been complied with. He confirmed that the HOTO did not require the Board to give reasons for its decision. However, in the event a person sought judicial review on the Board's decision, the Board might need to provide the reasons to the court so that the court might decide whether the decision had been made reasonably.
29. Mr Michael HO said that it would be helpful if the Board could explain to the recipient's family as to why an application was rejected, so that the family could supply more information for the Board's further consideration. The Chairman said that he had reservation about making this a statutory requirement for the Board because there were too many grey areas. For instance, one could not rule out the possibility of a recipient's family making up evidence after learning about the concerns of the Board. He believed that the Board when in doubt, would seek further information from the medical practitioner and the recipient's family before reaching a decision, and it would reconsider the application if the supplementary information helped to remove the Board's doubt. He considered that if a recipient's family was not satisfied with the decision of the Board, they could resort to judicial review.
Interviewing and investigative power of the Board
30. Referring to Annex A of the Administrative Guidelines of the Board which required the applicant, who was the medical practitioner for transplant involving live donor, to declare that "to the best of my knowledge, no payment prohibited by the HOTO has been or is intended to be made", Dr LEONG Che-hung asked whether the medical practitioner could be interviewed by the Board to explain why he was satisfied that there was no commercial dealing. He recalled a recipient's family had once commented that the Board had not interviewed them throughout the application process. The Chairman asked whether the Board had the power to investigate when it was in doubt, and if so, how could an investigation be carried out if a donor was from overseas.
31. HBCO responded that the law did not mention about the interviewing power of the Board. At present, the Board would seek further information from the applicant or through the applicant as and when necessary. The Board might also interview the donor and the recipient's family if the need arose.
32. Mr Michael HO said that the way that the law was written allowed the Board to exercise flexibility in making a decision. The law was silent on investigative and interviewing power which implied that the Board was not prohibited from doing so. SALA concurred and said that although the HOTO was silent, it could reasonably be implied that there was a power to make necessary enquiries because the HOTO required the Board to be satisfied with the criteria set out in section 5(4).
33. Mrs Sophie LEUNG declared interest as chairman of the Board. She said that she spoke in the capacity of a member of the Subcommittee. She opined that the Board should be vested with investigative power in order to establish facts of commercial dealings. The Chairman responded that while she spoke with good intention, the Board and its lawyer should be consulted on the legal implications of this matter.
34. Addressing the concerns of members, DSHW said that under existing law, the only way to appeal was through judicial review. Should members consider that an appeal council was necessary, members might wish to consider who the appellants were, the scope of the appeal, whether the council would accept appeal on approved applications, etc.
35. The Chairman responded that the appellants could be medical practitioners, recipients, donors, recipients' spouses and persons genetically related to recipients. Dr LEONG Che-hung envisaged that the Board would only be challenged on its decision regarding commercial dealings. Under the circumstances, he did not see the need for an appeal council to reassess the facts established by the Board under section 5(4)(d) and (e). He said that if there was an appeal council above the Board and both bodies were essentially doing the same function, no one would be interested in serving the Board.
36. DSHW said that an appeal might be lodged against the medical practitioner who had refused to operate an organ transplant as he considered there was commercial dealings between the genetically related donor and recipient. Dr LEONG Che-hung said that if there was suspicion of commercial dealings, medical practitioners would not make a decision on whether or not to operate organ transplant on a patient. They would only consider whether the donor and the recipient were genetically related. If any other reasons were in doubt, they would refer the case to the Board. DSHW said that he had reservation about Dr LEONG's interpretation, and would seek legal opinion on this point.
Time limit for the Board to consider urgent cases
37. Mr Andrew CHENG said that it might be necessary to include a provision to set out that the Board should respond to applications within a reasonable time limit to ensure that the receipients would be treated in time. The Chairman responded that the condition of receipients varied from case to case. Some patients required urgent treatment while others could wait to allow more time for the Board to carefully consider the application. If a statutory time limit was set, it might lead to problems and litigation. He trusted that the Board would deal with applications expeditiously, given that it was a matter of life and death to the recipient.
Item 4 - cadaveric organ donation
38. In response to a question from Dr LEONG Che-hung, DSHW explained that apart from promoting public education on cadaveric organ donation, the Administration would continue to put effort in collaboration with the Hospital Authority.
Point 5 - statutory defence for medical practitioners
39. Members agreed with the Administration that the provision of a statutory defence for medical practitioners in the HOTO was unnecessary.
Point 6 - Hong Kong Medical Association (HKMA) proposed amendments
40. Members accepted the Administration's reply on the first of the two suggestions made by the HKMA. On the second suggestion, the Chairman did not agree with the Administration's reply that it was not viable to define "next of kin". SALA agreed with the Chairman and said that a clear definition of next of kin could be added to the HOTO if necessary.
41. Mr Michael HO recalled that the HKMA had defined the registered next of kin to be the person who was registered as the next of kin on admission of the patient to the hospital. He found the definition unacceptable as it would give rise to many questions. As regards the policy, he pointed out that he could not accept the HKMA's suggestion and preferred the Administration's proposed amendments to provide for exemption.
42. A brief discussion on the common law position in respect of minors and mentally incapacitated persons in emergency situations requiring operations followed. Members noted that they would also be exempted under the proposed amendments.
II. Date of next meeting
43. The next meeting would be held on 8 January 1999 at 4:00 pm.
44. The meeting ended at 10:38 am.
Legislative Council Secretariat
10 February 1999