Legislative Council

LC Paper No. CB(2) 1749/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/13/98

Members Present :

Hon Ronald ARCULLI, JP (Chairman)
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon Andrew CHENG Kar-foo

Members Absent :

Hon Cyd HO Sau-lan
Hon Michael HO Mun-ka
Hon Jasper TSANG Yok-sing, JP
Hon YEUNG Yiu-chung
Dr Hon TANG Siu-tong, JP
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 TSE Man-shing

Head of Boards & Councils Office

Mr G A FOX

Senior Assistant Law Draftsman

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

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The Chairman informed members that Mr Andrew WONG had withdrawn from the Bills Committee with effect from 20 January 1999. The Bills Committee now comprised 10 members.

I. Meeting with the Administration

Submissions from the Hospital Authority (HA) and the Human Organ Transplant Board (the Board)
(LC Papers Nos. CB(2)1216/98-99(01) and (02))

Role of the Board

2. Referring to the submissions from the HA and the Board tabled at the meeting, the Chairman said that the Board had raised a number of concerns which appeared to have arisen out of misunderstanding of its role. He asked Head of Boards and Councils Office (HBCO) whether the Board would ascertain the relationship between the donor and the recipient when an application was received. HBCO replied that the secretary of the Board would first study whether the case should be handled by the Board. If it was identified that there was genetic or marital relationship between the donor and the recipient, the application would be returned to the applicant. The Board would not reassess the relationship between the donor and the recipient. If in the course of considering an application, it was discovered that the two persons were related, the Board would still proceed with the application as if it was a non-related genetic case, having regard to the time constraint of organ transplant operations. The Board would ascertain the possibility of commercial involvement of the two persons concerned.

3. The Chairman said that since the responsibilities of the doctor and the Board were clearly demarcated, he did not understand why the Board raised so many questions. He said that once the attending physician had not satisfied himself of the genetic or marital relationship required by the Human Organ Transplant Ordinance (HOTO), he would refer the case to the Board. The Board would simply look at whether or not there were commercial dealings. Dr LEONG Che-hung added that the Board would disapprove an application based on one and only reason i.e. commercial dealing. Senior Assistant Law Draftsman (SALD) agreed with the analyses.

Proof of marital relationship

4. DSHW said that the existing legislation provided that the Board might prescribe by regulation the means to establish the genetic relationship between the donor and the recipient, but had not provided the Board with similar power to establish their marriage relationship. The Bill proposed to add a new subsection (2A) to section 5 of the HOTO to specify that the fact of marriage relationship should be established by such means as prescribed by the Board by regulation. He said that before drafting the regulation, the Administration would seek the views of the medical profession.

5. In response to the Chairman, SALD clarified that "marriage" referred to marriage that was defined under the Marriage Ordinance (Cap. 181) and not common law marriage. Since the existing HOTO did not give any guideline on proof of a marriage relationship, he would assume that a medical practitioner would rely on documents similar to that prescribed for genetic relationship. On the question raised by Mr Andrew CHENG regarding subsistence, DSHW explained that section 5(1)(b)(ii) set out that the marriage should have subsisted for not less than three years at the time of the transplant.

6. HBCO said that the Board was concerned that it was very difficult to prove the "subsistence" of marriage and that the amendment might limit the types of evidence a medical practitioner could consider.

7. The Chairman said that the requirement for subsistence of marriage for not less than three years was to prevent marriage of convenience for the purpose of organ donation. He commented that while establishing fact of marriage was easy because documentary proof might be available, it was indeed difficult to prove the "subsistence" of a marriage. He said that the concern of the Board seemed to be that if regulation was made, it would become the only way of establishing fact of marriage relationship. In this regard, it did appear to lack flexibility.

8. SALD responded that the easiest way was for one of the parties to make a statutory declaration to the effect that they had been married for not less than three years and were still living together, or alternatively for the Board to prescribe a non-exhaustive list whereby medical practitioners would refer the case to the Board for anything that was not in the list.

9. The Chairman said that the former was not enough given that it lacked documentary evidence. The latter, while providing a clear guideline to the medical practitioner, did not address the concern of the Board. SALD responded that the Board had the power to decide how wide and narrow it wanted the regulation to be, and it was possible to amend the drafting to that effect. He said that the Board could not be compelled to make subsidiary legislation if it believed that it did not need to make regulation in order for this provision to work. The Chairman said that in that case, the new subsection (2A) should be drafted broadly to allow the Board flexibility to make regulation in establishing facts of subsistence of marriage. SALD and SALA were asked to follow up on the drafting of the provision.

10. Mrs Sophie LEUNG said that it was unfair to pass the decision to the Board, given that the Bills Committee also considered it difficult to prescribe means, for the purpose of the new subsection (2A), to prove the fact of marital relationship. She said that although the Board was empowered to make regulation, it must take into account the principle of the HOTO and the expectation of the medical profession. DSHW said that medical professionals seemed to have different views on the matter. While some medical practitioners preferred very clear cut guidelines, others considered that they should have greater flexibility in establishing such relationship. If a non-exhaustive list was to be included in subsidiary legislation, it was necessary to clarify whether means not prescribed in the regulation should be referred to the Board or to be decided by the medical practitioners in establishing a relationship. Dr LEONG Che-hung said that he preferred the former. Addressing Mrs LEUNG's concern, the Chairman said that since the Board had expressed difficulty in making regulation, it might be better to put down in the new subsection (2A) the documents required when dealing with the fact of marital relationship. SALA pointed out that this would be inconsistent with the present practice whereby the means of prescribing genetic relationship was laid down in subsidiary legislation and not in the main ordinance.

11. After discussion, members unanimously agreed that option 2 proposed by the HA that genetic and marriage relationship should be established by registration documents and a statutory declaration prescribed by the Board verifying the subsistence of marriage for not less than three years, was a practical and viable approach and should be recommended to the Board for consideration. DSHW undertook to follow up the matter with the Board. SALA advised that the regulation to be made, being subsidiary legislation, would be subject to vetting by the LegCo.

Adm

12. Members also discussed whether marital relationship should be established in the form of statutory declaration or statement where documentary proof was not available or not acceptable in Hong Kong. SALA advised that a person knowingly and wilfully made a false statement would have committed an offence under section 36(b) of the Crimes Ordinance (Cap. 200). SALD said that that could also be an offence under section 6(3) of the HOTO. He would suspect that any action taken against the person would be taken under the HOTO. Members unanimously agreed that although a statutory declaration and a statement would have the same legal effect, the former was preferred because it was perceived by the public as being more formal and serious. In response to Dr LEONG Che-hung, HBCO explained that there would be ample time for the medical practitioner to obtain a statutory declaration from the persons concerned, given that a lot of preparatory work such as tests on the donor had to be carried out prior to an operation.

Facts about commercial dealing

13. Mr Andrew CHENG enquired about the criteria for assessing facts of commercial dealing in section 5(4)(d) and (e). HBCO replied that the assessment criteria were kept confidential in order to prevent abuse. He said that the relevant information had been passed to members (LC Paper CB(2)986/98-99(01) issued on 6 January 1999) and discussed at a previous meeting. Basically, the Board would examine the emotional tie between the donor and the recipient when assessing the possibility of commercial dealing.

Liability of medical practitioners

14. On the question of providing safeguards for doctors raised by the HA and the Board, Dr LEONG Che-hung considered it not necessary because medical practitioners would not be held liable for any false information given. SALD agreed and said that doctors were not required to verify the authenticity of documents concerned. The Chairman said that if defence of due diligence was added, it would put a heavier burden on the doctor because proof of due diligence would then have to be provided. SALD agreed with the Chairman.

15. Referring to items 6 and 8 of the submission from the HA, Dr LEONG Che-hung pointed out that the HA did not have a clear understanding of its role under the law. For instance, the burden of determining whether there was any organ trading obviously did not fall on the front line medical personnel, and a medical practitioner would not have committed an offence as a result of his "clinical judgement" under the new subsection (6A) to section 5 which actually required the independent medical practitioners to complete three medical reports when a patient had become unconscious. DSHW said that the Administration would advise the HA accordingly.

Adm

16. Mr Andrew CHENG drew members' attention to paragraph 2 of the Annex to the Board's submission regarding proof of marital relationship and asked SALD for his view on the Board's comment that "even if the medical practitioner believes he has established the relationship, its duration and its subsistence by the prescribed means, if in fact the relationship does not exist there remains the possibility that an offence contrary to section 5(1) will be committed".

17. SALD responded that this was a mis-statement. He said that even if the relationship was later found to be false, there would be no offence on the part of the medical practitioners concerned. The Chairman added that the only offence that could be committed was when the doctor knowingly or recklessly supplied information which was false or misleading.

18. After discussion, members agreed that since medical practitioners could only deal with documentary evidence provided to the best of their knowledge and if subsequently there should be discovery of forgery of document or commercial dealing, the medical practitioners concerned would not be held liable. Although a defence provision could be added if considered necessary, members did not consider it desirable or necessary as the medical practitioners concerned should refer the case to the Board if they were in doubt about the genetic or marriage relationship.

Submission from the Parents' Association of Pre-School Handicapped Children
(LC Paper No. CB(2)1179/98-99(02))

19. DSHW said that items 1 and 3 of the paper had been addressed by the Mental Health Ordinance (MHO) which had provided safeguards for mentally incapacitated persons in receiving medical treatment, including organ transplant. As regards item 4, he said that the Administration was studying means to regulate organ donation from mentally incapacitated persons. SALA explained that since organ donation would worsen the health of a person rather than improving it, it might not be regarded as medical treatment. Under the circumstances, neither the parents nor the guardian could give consent on behalf of the mentally incapacitated person. On item 2, the Chairman said that children under 18 were totally prohibited from organ donation under the HOTO.

Adm

New draft
(LC Paper No. CB(2)1179/98-99(01))

20. SALD said that in response to members' comments on the complicated drafting of the proposed section 5 at the last meeting, a new draft had been prepared as set out in the paper. He confirmed that there was no change in the policy. DSHW pointed out that since the HA had only recently issued guidelines on the subject to front-line medical staff, it would be undesirable to overhaul the Bill at this stage. If the Bill was kept at its present form, the Administration could easily explain to the HA that the procedure for handling organ transplant was exactly the same as before except for the part concerning unconscious patients. If the new draft was to be used, the HA would have to revise its guidelines completely. He suggested that the restructuring of section 5 be dealt with in the next amendment exercise. The Chairman said that he inclined to agreed with DSHW. Although the new draft read better, the HA and other professional associations should have the chance to study to comment on it first. Members agreed. DSHW undertook to review the drafting and structure of the HOTO and to include the proposed amendments in the next amendment bill dealing with other amendments to the Ordinance.

Adm

21. The Chairman noted that the definition of "independent medical practitioner" was added to the new draft. SALD replied that the purpose was to simplify the provisions because the words "who is not the medical practitioner who will remove the organ from the donor or transplant the donor's organ into another person" appeared many times in the Bill. The Chairman said that since the same term was used in the HOTO, it was better to stick to the present formula for the time being. Members agreed.

Clause by clause examination

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

22. The Chairman questioned about the drafting of the new subsection (6A)(b)(i)(C) concerning the definition of mentally handicapped person. SALA explained that since there was no reference to mentally incapacitated person in the MHO, and the Mental Health (Amendment) Ordinance 1997 (MHAO) which provided the definition was not yet in force, the Bill therefore had to be drafted in a way that the meaning of mentally handicapped person had to be read with the MHAO. SALD supplemented that when the Bill was drafted, it was not known when the MHAO would come into effect. Since the MHAO would come into operation on the following Monday, 1 February 1999, it was no longer necessary to refer to both Ordinances. The Administration would move an amendment to that effect.

Adm

II. The way forward

23. Members agreed that the Bills Committee should make a verbal report to the House Committee at the meeting to be held later in the afternoon recommending that the Second Reading debate of the Bill be resumed on 10 February 1999. Members noted that the deadline for giving notice of resumption of Second Reading debate and CSA was 1 February 1999.

24. The meeting ended at 10:55 am.

Legislative Council Secretariat
13 April 1999