Legislative Council

LC Paper No. CB(2)1585/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/13/98

Members Present :

Hon Ronald ARCULLI, JP (Chairman)
Hon Michael HO Mun-ka
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Jasper TSANG Yok-sing, JP
Hon YEUNG Yiu-chung
Dr Hon TANG Siu-tong, JP

Members Absent :

Hon Cyd HO Sau-lan
Hon Andrew WONG Wang-fat, JP
Hon Andrew CHENG Kar-foo
Hon LAW Chi-kwong, JP

Public Officers Attending :

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

Mr G A FOX

Senior Assistant Law Draftman

Ms Stella CHAN

Government Counsel

Attendance by Invitation :

Department of Surgery of the University of Hong Kong Medical Centre of Queen Mary Hospital

Professor FAN Sheung-tat

Clerk in Attendance :

Ms Doris CHAN

Chief Assistant Secretary (2) 4

Staff in Attendance :

Mr LEE Yu-sung

Senior Assistant Legal Adviser

Mrs Eleanor CHOW

Senior Assistant Secretary (2) 4

I. Election of Chairman

Nominated by Dr LEONG Che-hung and seconded by Mr Michael HO, Mr Ronald ARCULLI was elected Chairman of the Bills committee.

II. Meeting with the representative of the Department of Surgery of the Faculty of Medicine of the University of Hong Kong
(LC Paper No. CB(2)1018/98-99(03))

Proof of marital relationship

2. The Chairman welcomed Professor FAN Sheung-tat, Professor and Chair of the Department of Surgery of the Faculty of Medicine of the University of Hong Kong, to the meeting.

3. Professor FAN said that details of his views were set out in the paper. He said that front-line medical staff were particularly concerned about the marital requirement specified in clause 2(a) of the Human Organ Transplant (Amendment) Bill 1999 (the Amendment Bill), as it was difficult to verify whether there was a valid marriage between the donor and the recipient, and whether a marriage had subsisted for not less than three years. The failure of medical staff or the Human Organ Transplant Board (the Board) in establishing documentary proof within a short period of time would jeopardise the chance of recovery of the patient. He urged the Board to provide clear guidelines in section 2 of the Human Organ Transplant Regulation (the Regulation) to substantiate the marital relationship.

4. DSHW replied that in the absence of any valid documents to prove that the marriage relationship between the donor and the recipient had subsisted for not less than three years, the alternative was to ask the donor and the recipient to make a statutory declaration or, in the case the recipient had become unconscious, the donor to make the declaration.

5. Dr LEONG Che-hung asked Professor FAN whether front-line medical staff would prefer to take up the responsibility of ascertaining genetic relationship and marital status between the donor and the patient, or leave it to the Board, in view of the time constraint in carrying out an organ transplant. Professor FAN said that the primary responsibility of the health care professionals was to provide the best medical care to patients and not to verify documents. He opined that medical practitioners should not bear the legal responsibility in this respect. He said that when front-line medical staff were in doubt of a relationship, they should refer the case to the Board. Medical practitioners would co-operate with the Board to ensure that cases were vetted expeditiously without unnecessary delay.

6. Dr LEONG Che-hung asked Professor FAN to inform the Bills Committee as to how medical practitioners would handle the following scenarios involving an organ from a live donor: (a) facts could be established on genetic relationship between the donor and the recipient; (b) facts could be established that the donor and recipients were not genetically related; and (c) medical practitioners were not sure whether the donor and the recipient were genetically related. Professor FAN replied that for scenario (a), if a family member had indicated clearly that there was payment involved in the organ transplant, medical practitioners would reject the application. If a medical practitioner was suspicious of organ trading in a living related transplant, he would refer the case to the Board. For scenarios (b) and (c), the cases would again be referred to the Board because according to law, documentary proof was needed to substantiate the claim that the donor was genetically related to the recipient. He said that there were only two cases referred to the Board so far, one of which fell under scenario (c).

Time limit for vetting applications

7. In response to a question from Mr Michael HO about response time of an application, Professor FAN said that the Board needed time to ascertain whether commercial dealings were indeed involved. He opined that to ask the Board to respond to an application within two hours after an application was submitted would be reasonable. Head of Boards and Councils Office (HBCO) responded that he would consult the Board on the matter. His past experience was that prompt responses were given to the applicants. He advised that it had become a practice for the Board to ask an applicant about the urgency of the case and the Board was able to meet the deadline so far. He had reservation about setting a statutory time limit of two hours, having regard to the variation in urgency and complexity of applications. For instance, liver transplant was more urgent whereas kidney transplant was normally not so urgent. In addition, for cases where supplementary information was required, the Board would need more time to consider the application. Dr LEONG Che-hung commented that in the absence of a yardstick to establish facts about commercial dealings, the Board would take a much longer time to make a decision.

8. Mr Michael HO said that time was crucial to an operation. If the Board had operational difficulties to respond to applications in time, it might be necessary to overhaul the Human Organ Transplant Ordinance (HOTO) or even to do away with the Board. This was a fundamental issue that the Administration must address in the near future.	Adm

Recipients incapable of understanding

9. Professor FAN said that the Amendment Bill would facilitate the work of medical practitioners when a recipient became unconscious. He considered that it would not be too difficult to find a medical practitioner, who was not the medical practitioner who would remove the organ from the donor or transplant the donor's organ into another person, to provide the certification as required under clause 2(b). He commented that the merit of the HOTO was to protect the interests of the donor and the recipient, but the Amendment Bill appeared to have neglected the interests of the donor.

10. The Chairman explained that the proposed amendment only affected the recipient and the policy on the donor remained unchanged. Having regard to Professor FAN's comment, the Chairman said that the drafting aspect should be examined to avoid misunderstanding by the medical profession.

11. Mr Michael HO asked whether it would be more difficult for a medical practitioner to seek certification from his colleagues for an organ transplant carried out in a private hospital. Professor FAN said that liver transplant had never been done in private hospitals in Hong Kong. He envisaged that the operation would not be carried out in local private hospitals in the next 10 years or so because liver transplant was a very complicated procedure. He said that in any public hospitals, comatose patients suffering from liver disease requiring organ transplant were usually attended by a team of doctors. The team of doctors usually had a good understanding of the background of the patient and his family and therefore one of them should be able to make the certification required without difficulty.

Liability of medical practitioners

Professor FAN said that under section 4(7), a medical practitioner would be guilty of an offence if he removed from a dead or living person an organ intended for transplant into another person, and he knew or ought, after reasonable enquiry, to have known that organ trading was involved. A medical practitioner would also be guilty if he knowingly and recklessly supplied information, or made certification, which was false or misleading in a material respect under clause 2(d). He said that if a medical practitioner had complied with the two provisions but subsequently it was proved that commercial dealings had taken place, the medical practitioner might be under suspicion. He was not sure whether the medical practitioner would be punished as if he had knowingly breached the law. He also pointed out that the Amendment Bill had not specified prohibition of organ trading between unconscious recipients and live donors which the HOTO had provided it under section 5(4)(e) for conscious recipients and live donors. He said that the omission might mislead front-line medical staff. He also pointed out that clause 2(b) specifically required medical practitioners to certify on applications involving unconscious recipients, but donors were not required to make any declaration. He was concerned about the impact on medical staff if it was subsequently proved that there was commercial dealing.

12. The Chairman said that as far as unconscious recipients were concerned, it was impossible for him to arrange organ trading, although his family might be able to do so. He considered that the drafting of the Bill was exceedingly complicated and noted that the medical profession might have a different impression and interpretation of the Bill.

13. Senior Assistant Law Draftsman (SALD) clarified that the new subsection (6A) only affected section 5(4)(c) to the extent that section 5(4)(c) related to the recipient. The amendment only meant to deal with the case of unconscious recipients. The existing law, as far as the donor was concerned, was not changed at all.

14. Addressing the concerns raised by Professor FAN and Dr LEONG Che-hung about the legal responsibility of medical practitioners when fake documents or payments were discovered six months after a living related organ was transplanted, SALD suggested that medical practitioners should ask the donor to make a statutory declaration. In doing so, the medical practitioner had safeguarded his interests because a false declaration would mean a person who made it had committed an offence.

15. Dr LEONG Che-hung asked who should be responsible for asking a donor to make the statutory declaration. The Chairman said the it might or might not be the duty of a medical practitioner, but the procedure must be standardised so that medical practitioners did not have to decide which cases needed statutory declaration and which did not. He considered that under most circumstances medical practitioners should not be responsible for subsequent discovery of forgery of documents or commercial dealings between genetically related persons. For cases where a medical practitioner disregarded all the rules out of good intention to save a patient, that was another question. In response to the suggestion of SALD about adding a defence provision, the Chairman pointed out that filling the law with defences was undesirable as the obligation imposed by law would be pushed back. He could understand the need for a statutory declaration for any genetic relationship with proof that was not acceptable under the HOTO. Dr LEONG said that medical practitioners should refer the case to the Board if they were in doubt about the genetic or marriage relationship.

16. On the example quoted by Mr TSANG Yok-sing concerning a father giving a larger share of his estate to a son who donated an organ to him, the Chairman responded that one should not condone that kind of behaviour. He stressed that the message to the public must be very clear, no matter whether the donor and the recipient were related or not, commercial dealings were prohibited.

17. Referring to clause 2(d), Mr Michael HO asked how the word "recklessly" would be defined from the medical point of view. Professor FAN replied that the medical profession would be very cautious in handling organ transplant cases. They would make a thorough investigation into the case before making any certification. He believed doctors acted in good faith and therefore to him the word was not important. SALD said that section 6(3)(b) of the HOTO used the same terminology, that a person would be guilty of an offence if he in purported compliance with regulation, "knowingly or recklessly supplies information which is false or misleading in a material respect". He described the word "reckless" as without regard to whether it was true or false. For instance, a doctor made the certification without looking at the medical record of the patient, that would be reckless in this context. Senior Assistant Legal Adviser (SALA) agreed with SALD. He added that "reckless" in the context of a criminal offence meant that when a defendant took certain action he recognised there was an obvious risk of harmful consequences but he nevertheless went on to take the risk and did the act. In the case of a medical practitioner in the provision of information, if he knew the information might be false but continued to take the risk and provide the information in disregard of its authenticity, he would be regarded as having recklessly supplied information.

18. Professor FAN said that he had no more questions on the Amendment Bill. The Chairman thanked him for attending the meeting.

III. Meeting with the Administration

Letter of 16 January 1999 from the Board
(LC Paper No. CB(2)1113/98-99(01))

Proof of a relationship

19. At the request of the Chairman, HBCO briefly introduced the letter which was tabled at the meeting. In response to Dr LEONG Che-hung, he explained that section 5(2) of the HOTO provided that the Board might prescribe the means of establishing genetic relationship by regulation, clause 2(a) of the Amendment Bill further provided a similar power for the Board to make regulation to prescribe means to establish that a marriage had subsisted for not less than three years. The Board wished to be advised as to what information should be supplied in accordance with such regulations, in order that medical practitioners could follow the guideline in establishing facts of a relationship. DSHW pointed out that the crux of the matter was whether the prescribed means should or should not be strict. If the prescribed means were broadened, front-line medical staff would have greater flexibility in exercising their discretion in establishing a relationship. If the prescribed means were restrictive, front-line medical staff in doubt of a relationship would refer the case to the Board for a decision.

20. Dr LEONG Che-hung said that the object of the HOTO was to prohibit organ trading. If the front-line medical staff were given too much discretionary power, he doubted whether the object could be effectively enforced and also doubted whether the medical profession could bear the legal responsibility of verifying documentary proof of a relationship. He recalled that the Ad Hoc Group to study the Human Organ Transplant Bill in 1992-95 had agreed to the establishment of the Board, having regard to criticism about doctors having too much say in organ transplant operations.

21. DSHW responded that since the HOTO came into effect in April 1998, there had been concerns that the means prescribed by the Board had restricted the ways medical practitioners could establish a genetic relationship. There were also people holding opposite views. The Administration would further discuss the matter with the Board and the medical profession before deciding the way forward.

22. On the marital requirement, Mrs Sophie LEUNG said that the Board was empowered to make regulation in this respect but was not sure how it should be made to meet the object of the HOTO and the expectation of the medical profession. In response, Mr Michael HO said that if the Amendment Bill was passed, it would mean that LegCo decided that the Board should be vested with the responsibility to prescribe by regulation the means to establish a marriage relationship. The regulation so formulated by the Board would be subject to vetting by the LegCo.

Clause by clause examination

The Bill

23. The Chairman commented that the drafting of the Bill was rather complicated. Since the medical profession and the Board were facing tremendous pressure in dealing with life and death matters, he considered that the law should be clear, concise and easy to understand. Dr LEONG Che-hung agreed with the Chairman. DSHW suggested that it might be better to restructure section 5 in the second batch of amendments soon to follow, given that the Hospital Authority had already explained the organ transplant procedure to all front-line medical staff based on the existing law.

24. SALD said that the Bill was only dealing with two issues, namely marital status and unconscious patients. If he had the chance, he would prefer to rewrite section 5 and make it simpler. However, he had to accept section 5(4)(c) as it was, which referred to both the donor and the recipient, and to make it clear that clause 2(b) of the Bill only referred to the recipient. In response to Dr LEONG Che-hung, SALD explained that heading of a section could be amended administratively as it was not part of the legislation. He assured that the heading of clause (2) would automatically become the heading to section 5 when it was incorporated into the HOTO.

25. The Chairman suggested that the Bill be restructured. SALD said that section 5 could be repealed and replaced completely without changing any of the policy that was presently reflected in the amended version. He would produce a new version for consideration by the Health and Welfare Bureau. In response to Dr LEONG, SALD confirmed that the new version did not need to go to the Executive Council, as it did not involve any change in policy.

Clause 1

26. Members raised no queries on the clause.

Clause 2(a)

27. The Chairman suggested that the clause should be refined to get rid of double negatives. SALD explained that the wording was consistent with section 5(2), but he understood the Chairman's concern and undertook to simplify the draft.	Adm

28. Dr LEONG Che-hung said that if a couple got divorce in Reno, there was no way front-line medical staff could establish facts about their relationship. The Chairman said that a more difficult question was to prove subsistence of a marriage for three years. For instance, front-line medical staff would not know whether and when a couple was separated. He explained that the intention to include "subsistence" of marriage in the HOTO was in fact not to allow marriage of convenience for the purpose of getting qualified for organ transplant.

Clause 2(b) - new subsection (6A)(b)(i) to section 5

29. The Chairman referred to the new subsection (6A)(b)(i) which stipulated that a registered medical practitioner who "has certified in writing that the recipient is incapable of understanding any explanation as mentioned in subsection (4)(c) by reason of........(D) his suffering an impaired state of consciousness", and said that if it was the totality and gravity of the situation that the recipient needed to understand rather than any bits of it, he would suggest to change the word "any" to "the". SALD agreed. In response to a further question from the Chairman, SALD explained that a person wondering in and out of consciousness was not fully conscious and the state was described by the medical profession as "impaired" state of consciousness. The Chairman asked how a doctor would deal with the situation if a person was in an impaired state of consciousness but in one of the lucid moments said that he would not receive any organ transplant. Dr LEONG Che-hung replied that the doctor would consider the person not in his clarity of mind to make a decision. He said that he was satisfied with the terminology used in the Amendment Bill.

Clause 2(b) - new subsection (6A)(b)(ii) to section 5

30. The Chairman referred to the new subsection (6a)(b)(ii) which stipulated that "a registered medical practitioner, who is not the medical practitioner who will remove the organ from the donor or transplant the donor's organ into another person, has certified in writing that it would not be in the best interests of the recipient to wait until he is capable of understanding such an explanation", and questioned whether it was necessary to put the word "best" in the provision. SALD responded that it was more appropriate to put a higher threshold because there was a human right aspect when talking about putting an organ into a recipient who had not had the consequences of that explained to him. SALA explained that in decided cases, "best interests" was the test used when the court had to decide whether to override refusal to medical treatment based on religious or undue influence. The test proposed by the Bill was similar to the test adopted by the court when it had to decide the matter. The Chairman accepted the explanation.

31. Dr LEONG Che-hung referred to the first part of the provision and asked whether the medical practitioner could come from the team of medical practitioners carrying out the operation as long as he was not the one removing the organ from the donor or transplanting the donor's organ into the recipient. SALD clarified that the medical practitioner who made the certification should be completely independent from the operating team to ensure that the best interests of the patient was safeguarded. Mr Michael HO said that under the circumstances, it was necessary to define the operating team. Members deliberated on the issue and concluded that there were practical difficulties to come up with a definition because a number of medical professionals could be involved in the operation. Mrs Sophie LEUNG spoke from experience that when the Board was preparing the Administrative Guidelines, it had tried to follow the spirit of the HOTO but it was advised by the medical profession that it would take a totally independent doctor many days to fully understand the facts surrounding the case before he would undertake to certify. Members agreed that the best person to sign on the certificates would be someone who was fully in the picture. Members agreed to accept the provision as it was.

IV. Date of next meeting

32. The next meeting would be held on 27 January 1999 at 10:45 am.

(Post-meeting note : The meeting was cancelled and rescheduled to 29 January 1999 at 8:30 am.)

33. The meeting ended at 10:33 am.


Legislative Council Secretariat
16 March 1999