Human Organ Transplant (Amendment) Bill 1999

Amend the Human Organ Transplant Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Human Organ Transplant (Amendment) Ordinance 1999.

(2) Section 2(a) shall come into operation on a day to be appointed by the Secretary for Health and Welfare by notice in the Gazette.

2. Restriction on transplants

between living persons

Section 5 of the Human Organ Transplant Ordinance (Cap. 465) is amended---

(a) by adding---

"(2A) Two persons shall not in any particular case be treated as spouses whose marriage has subsisted for not less than 3 years unless the fact of the relationship has been established by such means as may be prescribed by the board by regulation.";

(b) by adding---

"(6A) Notwithstanding subsections (4)(c) and (5) (insofar as it relates to subsection (4)(c)) or, as the case may be, subsection (6) (insofar as it relates to subsection (4)(c)) in the case, but only in the case, of the recipient---

(a) the board may give its approval under subsection (3); or

(b) the person who will remove from a living person an organ intended to be transplanted into another person where the approval of the board is not required under subsection (3) may remove the organ,

if the board or person, as the case may require, is satisfied that---

(i) 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 the recipient is incapable of understanding any explanation as mentioned in subsection (4)(c) by reason of---

(A) his suffering any illness;

(B) his being a minor;

(C) his being a patient or a mentally handicapped person, within the meaning of the Mental Health Ordinance (Cap. 136) as read with the Mental Health (Amendment) Ordinance 1997 (81 of 1997); or

(D) his suffering an impaired state of consciousness;

(ii) 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

(iii) the registered medical practitioner who is to transplant the organ into the recipient has kept a medical report in writing stating the reason why subsection (4)(c) cannot be complied with in respect of the recipient.

(6B) Where subsection (6A) is applicable---

(a) in the case of subsections (4)(c) and (5), the board shall not give its approval under subsection (3) (and without prejudice to the operation of subsections (4) and (5) to the extent that subsection (6A) is not applicable) unless there has been submitted to it copies of the certificates concerned required under subsection (6A)(i) and (ii) and a copy of the report concerned required under subsection (6A)(iii);

(b) in the case of subsection (6)---

(i) the registered medical practitioner who is to transplant the organ into the recipient concerned shall not do so until there has been submitted to him copies of the certificates required under subsection (6A)(i) and (ii) in respect of the recipient;

(ii) the registered medical practitioner who has transplanted the organ into the recipient shall, not later than 30 days after the transplant or within such longer period as the board, on application, may allow, submit to the board copies of the certificates required under subsection (6A)(i) and (ii) and a copy of the report required under subsection (6A)(iii) in respect of the recipient.";

(d) by adding---

"(8) Any person who in purported compliance with---

(a) regulations made for the purposes of subsection (2A); or

(b) subsection (6A),

knowingly or recklessly supplies information, or makes a certification, which is false or misleading in a material respect is guilty of an offence and is liable upon conviction to a fine at level 5 and to imprisonment for 3 months.

(9) A registered medical practitioner who, without reasonable excuse, fails to comply with subsection (6B)(b)(i) or (ii) shall be guilty of an offence and is liable upon conviction to a fine at level 5.".

Explanatory Memorandum

This Bill amends the Human Organ Transplant Ordinance (Cap. 465) to---

(a) specify that the marital requirement in section 5(1)(ii) of the Ordinance (that is, for organ transplant between spouses) must be established by a means prescribed by the Human Organ Transplant Board by regulation (clause 2(a)); and

(b) specify the circumstances in which an organ transplant may still be made notwithstanding the fact that the recipient is, for certain specified reasons, incapable of understanding the explanation required to be given to him under section 5(4)(c) of the Ordinance (clause 2(b)).