Legislative Council

LC Paper No. CB(2) 1573/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/HS/1/98

Legislative Council Subcommittee on Human Organ Transplant Ordinance

Minutes of the fourth meeting held on Friday, 8 January 1999 at 4:00 pm in the Chamber of the Legislative Council Building

Members Present :

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 Jasper TSANG Yok-sing, JP
Hon YEUNG Yiu-chung
Dr Hon TANG Siu-tong, JP
Hon Andrew CHENG Kar-foo
Hon LAW Chi-kwong, JP

Member Absent:

Hon Andrew WONG Wang-fat, 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

Attendance by Invitation:

The Hong Kong Liver Transplant Patients' Association

Mr Wally LI
Mr LEE Sheung-kin

Faculty of Humanities and Social Science of the City University of Hong Kong

Dr CHAN Ho-mun

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. Matters arising

The Chairman informed the meeting that Dr YEUNG Sum had withdrawn from the Subcommittee. The Subcommittee now comprised 11 members and the quorum was three members.

Dr LEONG Che-hung advised that the Human Organ Transplant (Amendment) Bill was gazetted today and would be introduced into LegCo on 13 January 1999. At the House committee meeting held before this meeting, Members agreed that in anticipation of the formation of a Bills Committee to study the Amendment Bill, a circular should be issued to invite Members to indicate their intention to join the Bills Committee. He said that subject to the decision of the House Committee on 15 January 1999, the Subcommittee would be replaced by the Bills Committee.

II. Meeting with deputations
(LC Papers Nos. CB(2)974/98-99(02) and 990/98-99(02))

2. The Chairman welcomed representatives of the Hong Kong Liver Transplant Patients' Association (HKLTPA) and Dr CHAN Ho-mun of the Faculty of Humanities and Social Science of the City University of Hong Kong to the meeting. At the invitation of the Chairman, Deputy Secretary for Health and Welfare (DSHW) briefed the meeting on the background and purpose of the Bill which were set out in paragraphs 3 to 9 of the Legislative Council Brief.

3. A representative of HKLTPA expressed his concern that some medical practitioners might be unwilling to take up additional responsibilities imposed by the new subsection (6A)(b)(iii) to section 5 concerning the preparation of a medical report. DSHW explained that the medical report would contain factual information on the reasons which had prevented the medical practitioner from giving the relevant explanation to the recipient. Such information should not be difficult to produce.

4. A representative of HKLTPA said that some of the potential donors might be marginally unqualified to donate his/her organ because the marriage had subsisted for a little less than three years or the donor was going to be 18 years old. He considered the law too rigid and suggested that the law be amended to allow medical practitioners to exercise discretion under these circumstances.

5. The Chairman responded that wherever the cut-off line was drawn, there were bound to be arguments about the law being too rigid or otherwise. The LegCo Ad Hoc Group to study the Human Organ Transplant Bill in 1992-1995 (the Ad Hoc Group) had deliberated the issue and concluded that the specified age or years of marriage must be clear to facilitate the medical practitioners, hospitals and the Human Organ Transplant Board (the Board) to carry out their work effectively. To this end, a person was qualified to donate an organ if he had reached the age of 18 or 16 and was married. For donation of an organ to one's spouse, the marriage must have subsisted for not less than three years. If there were no clear cut guidelines, medical practitioners would have to decide on each and every marginal case whether an operation should be proceeded with. It would cause operational difficulties and it was unfair to place the burden on medical practitioners.

6. Dr CHAN Ho-mun of the City University of Hong Kong emphasized that in handling cases involving unconscious patients, the concerns of the patient's family and the professional judgement of the attending doctors should be the main factors for consideration. He criticised the existing procedure for approval of organ transplant cumbersome, rigid and did not have regard to the feeling of the patient's family. He opined that medical practitioners should be given more discretionary power. He said that for cases where there were disputes between the patient's family and the attending doctor, or where there was insufficient documentary proof of relationship between the donor and the recipient, a mediator should be asked to arbitrate the cases instead of referring every single case to the Board. In response to the Chairman, Dr CHAN proposed the setting up of an ethics committee in every hospital to mediate and resolve disputes on the spot to expedite the application process instead of going through the cumbersome procedure of seeking approval from the Board.

7. The Chairman commented that resolving such a controversial issue involving two parties in dispute had never been an easy task, no matter whether it was handled by an ethics committee or the Board. Dr LEONG Che-hung recalled that the responsibility of carrying out organ transplant and other related matters were originally placed on the medical practitioners and hospitals. Having regard to the unfair burden on medical practitioners and hospitals vested with too much discretionary power, it was then decided to establish the Board to consider organ transplant applications where a genetic or marriage relationship could not be established, and where commercial dealings might be involved. He reiterated that the primary task of medical practitioners and hospitals was to save the lives of patients and not to carry out investigation. He pointed out that the objective of the Amendment Bill was to overcome certain operational difficulties that had been encountered when dealing with unconscious patients and therefore the discussion of this meeting should not deviate from this subject.

8. A representative of HKLTPA said that under any circumstances, the attending medical practitioner, the Board and the health authority concerned should aim at saving the life of the patient first. If time and circumstances did not allow a detailed examination of the application, front-line medical staff should be allowed to exercise their professional discretion to operate on the dying patient, while his family members should signify that they understood and undertook the risk. If it was later found that there was an element of organ trading, the Board had the right to take actions. Dr CHAN Ho-mun considered that a medical practitioner should save the life of a patient first and to pursue documentary proof later, especially for cases where the attending medical practitioner was sure of the relationship between the donor and the recipient. He said that it was not uncommon to find individual names wrongly recorded in birth certificates.

9. The Chairman said that he understood the concern about saving life, but this overriding principle would create tremendous pressure on the potential donor who, despite being a family member, might not wish to donate his organ because of the risk involved. He questioned whether it was right to put everything aside, i.e. disregarding the right of a donor and a recipient to choose, and ignoring the recipients' wish, in order to save the life of a patient. He commented that although the overriding principle carried good intention, the outcome might not be so desirable. One must think about the repercussions if either or both the donor and the recipient died after the operation.

10. Dr LEONG Che-hung said that the role of medical practitioners was to save life and carry out his duties in accordance with the law. He said that the law specified that documentary proof of a relationship should be obtained before and not after an operation. When a medical practitioner was in doubt of a relationship, he would refer the case to the Board. When an application was received, the Board would not look into the aspect of relationship as it was bound by the Human Organ Transplant Ordinance (HOTO) to ascertain whether there were commercial dealings between the donor and the recipient which were prohibited under section 5(4). Mrs Sophie LEUNG supplemented that as and when necessary, the Board would consult the attending medical practitioner, who had a better understanding of the relationship between the donor and the recipient, about his views on commercial dealings before the Board made a final decision.

11. Dr CHAN Ho-mun said that he supported that the wish of a recipient should be respected, provided the recipient had expressed his wish before he became unconscious. If not, the medical practitioner should act in the best interests of the patient to save his life. He advocated that medical staff should ask a patient, upon admission to the hospital, to give an advance directive to facilitate medical staff and the hospitals to make decisions.

12. Dr LEONG Che-hung cited that the Hong Kong College of Physicians (HKCP) had expressed that "Asking all 'potential' liver recipients to sign a consent form expressing their willingness to receive a graft before they deteriorate will be impractical. It is even more difficult if their consent are to direct towards designated donors". Dr CHAN Ho-mun did not agree with the HKCP. He said that many countries, namely Canada, Australia, Denmark, Holland, Germany and some states in the United States were practising advance directives. He did not consider the practice impractical. As regards whether the directive was confined to organ transplant, Dr CHAN said that a patient was at liberty to give his directive any time after he was admitted to the hospital irrespective of the nature of his illness.

13. The Chairman considered that advance directive could be one of the means to solve the problem, but whether such a directive would be made depended very much on the patient's knowledge of his right. DSHW responded that existing law had not prevented a patient from giving an advance directive. Dr LEONG Che-hung held the view that since the practice of advance directive was not restricted to organ transplant, this might not be the appropriate forum to discuss this broad issue. He pointed out that the deputations were giving conflicting views. On one hand, they advocated that saving the life of a patient should be accorded top priority and on the other hand, they considered that medical practitioners should not act in violation of a recipient's wish of not receiving an organ. DSHW commented that the overriding principle was to act in the best interests of the patient. Dr CHAN Ho-mun clarified that the life of a patient should be saved provided it did not contravene the advance directive given by the recipient. He said that in the United States where advance directive was in practice, treating a patient despite his refusal of consent would constitute physical interference to the person and might constitute an offence.

14. Dr CHAN Ho-mun said that his colleagues were dissatisfied with the way that public consultation was carried out in respect of the humanitarian aspect of medical care policies. He criticised that the advertisement placed by LegCo was too small, the meeting schedule was too rigid, and deputations were given very short notice to attend the meeting. He urged LegCo to improve communication with deputations. He cited as an example that the City University of Hong Kong had submitted its views on the Human Reproductive Technology Bill (HRTB) to the former Legislative Council in 1996 and had not received any response since then. The University had also asked about the difference between the HRTB 1996 and HRTB 1998, again no response was given.

(Post-meeting note : The submission mentioned by Dr CHAN was actually addressed to the Provisional Council on Reproductive Technology. A copy of the submission was issued to members of the Bills Committee on HRTB vide LC Paper No. CB(2)1185/98-99(01).)

15. The Chairman responded that LegCo would welcome views from deputations and would provide the opportunity for deputations to give oral representations at LegCo committee meetings if they so wished. To his understanding, LegCo committees would not and had not refused meeting any deputations. Should deputations have further views to express, the Bills Committee to be formed to study the HOTO would arrange another meeting, or alternatively deputations might make supplementary submissions for consideration by the Bills Committee. He clarified that LegCo would only advertise to call for views if a LegCo committee considered that the issue was of great public concern. He advised that activities of LegCo could be accessed through the Internet. Persons who were interested in giving views on certain issues might send in their submissions or contact the relevant committees for arrangement of a meeting. As regards timing of a meeting, the Chairman explained that LegCo members had difficulty in fixing a meeting date even amongst themselves. Therefore it was not practical to further consult deputations on this aspect. However, this meeting had been arranged in the late afternoon taking into consideration that deputations might not be able to attend the meeting in the morning and early afternoon. He further explained that for amendment bills, LegCo would normally prepare marked-up copies to indicate amendments made to an ordinance, except for bills which introduced simple and minor amendments. A marked-up copy would be made available to deputations on request. Miss Cyd HO, chairman of the Bills Committee on HRTB, clarified that the Bills Committee had only received submissions from the medical profession, none of which had expressed intention to give oral representation. She said that an arrangement would be made with Dr CHAN Ho-mun if he wished to give views on the HRTB.

16. The Chairman thanked representatives of the deputations for attending the meeting.

III. Meeting with the Administration

The Administration's reply to comments on the HOTO
(LC Paper No. CB(2)875/98-99(02))

17. The Chairman said that the Subcommittee discussed items 1 to 6 of the paper at the last meeting on 15 December 1998. He suggested and members agreed to continue the discussion on the remaining items of the paper.

Item 7 - time limit for vetting applications

18. In response to Dr TANG Siu-tong's suggestion to set a limit on the response time of the Board for vetting an application, DSHW said that it would create considerable practical problems to the Board. For urgent cases such as liver transplant, he trusted the Board would expedite the vetting process given the condition of a patient could deteriorate rapidly. For any other cases the Board should be given ample time to study in detail the application. In addition, it was difficult to designate a point of time as the beginning of the vetting process, since supplementary information might be required during the vetting process. He said that setting a statutory time limit would create unnecessary disputes and might in turn hinder the transplant process.

19. Mr Andrew CHENG said that he was not convinced by the Administration's argument that setting a time limit would hinder the transplant process. He proposed that the Board be required to respond to an application within a reasonable time limit to ensure an operation could be carried out in time. Head of Boards and Council Office (HBCO) replied that it would be unfair to the Board if a statutory time limit was set for each and every case because the Board was not a rubber stamping mechanism, and it needed ample time to consider an application. Dr LEONG Che-hung pointed out that the Board might not be able ascertain the involvement of commercial dealings within a short period of time. In response to Mr Andrew CHENG's comments about the Board taking too much time in vetting a recent application, the Chairman clarified that the problem of the application did not lie in the response time of the Board, but rather the limitation of the law in regard to unconscious patients.

20. In response to the Chairman, HBCO said that since its operation in April 1998, the Board had not encountered operational difficulties in terms of quorum and providing speedy response to applications. The Chairman pointed out that since the Board had not encountered any problems, it would be inappropriate to impose a statutory time limit to the Board. He said that if members were concerned about vetting not being expeditiously handled because of a lack of quorum, reducing the quorum might be the answer. Mr YEUNG Yiu-chung supported the view. He cited as an example that a member might be held up by accident and other unforeseen circumstances and hence would affect the quorum of a meeting.

21. In response, HBCO explained that the Board comprised nine members, the quorum of a meeting should not be less than half of the members and the decision must be made by the majority of members, i.e. at least five members. Members of the Board were requested to provide their contact telephone number or pager number for both office hours and outside office hours to ensure that they could be reached 24 hours. Since some members might have to travel overseas from time to time, they were required to keep the Secretariat informed of their whereabouts one month in advance. In the event that a member would be out of town in the following month, prior arrangement would be made to appoint a temporary member to replace him. Mrs Sophie LEUNG said that the Board had considered setting up three subcommittees, each comprising three members, to take turn to consider applications on a roster basis. The proposal was abandoned having considered that applications must be approved by a majority of the Board members. She informed members that due to the urgency of applications, there were meetings held in the presence of six members, and the views and decisions of the other members being sought by phone or fax.

22. The Chairman pointed out that there appeared to be uncertainties as to how many members were needed to form a quorum. If the quorum was nine persons, a meeting would have no legal effect if only six persons were present. He further asked that if five members had approved an application at a Board meeting, whether it was still necessary to seek the opinion of the remaining four members who were unable to attend the meeting. Miss Cyd HO said that since the quorum of the meeting should not be less than half of the members, in the event that only five members were present at a meeting, she was not sure whether the majority decision would mean three out of the five members or five out of the nine members. The Chairman urged the Board to seek legal advice and if necessary, to amend the law to avoid unnecessary legal challenge. He also asked the Senior Legal Adviser to give his views at a future meeting.

(Post-meeting note : HBCO clarified after the meeting the majority decision must be supported by at least five members.)

23. Dr LEONG Che-hung recalled that when the Ad Hoc Group studied the Bill in 1992-95, it was the intention that the quorum of a meeting must be nine members. As to whether telephone conferencing could be regarded as a meeting, it was necessary to consult lawyers. He pointed out that the purpose of the Amendment Bill was to overcome operational problems concerning unconscious patients, and not to change the object of the HOTO.

Item 8 - establishing genetic relationship

24. DSHW explained that there were concerns about the difficulty to establish genetic relationship between the recipient and the donor in cases involving persons residing or born/married outside Hong Kong under which the "equivalent" documents stipulated under regulation 2(b)(ii) of the Human Organ Transplant Regulation (the Regulation) could not be produced. He said that the Administration was prepared to give support on the drafting of amendments to the Regulation to provide medical practitioners with more means to establish genetic relationship.

25. Mrs Sophie LEUNG explained that the Board's intention to amend the Regulation arose from two main considerations. Firstly, the UK Human Organ Transplant Act provided that the fact of a genetic relationship could be established by genetic tests. Secondly, in response to the request of the medical profession to provide greater flexibility to exercise their judgement where genetic relationship could not be established by means of the prescribed documentary evidence specified under section 2 of the Regulation.

26. On the first point, Dr LEONG Che-hung commented that the result of DNA test could not be made available within a short period of time. It was impractical to apply the test to urgent applications which required prompt decision. On the second point, Dr LEONG said that the present procedure was very clear. When a medical practitioner was in doubt of a relationship, he would refer the case to the Board. He reiterated that the public had previously considered that medical practitioners had too much say in organ transplant operations. As a result, the power to prescribe means to establish relationship was given to the Board. He did not understand the rationale for reverting the power to the medical practitioners at this stage.

27. DSHW explained that there were two schools of thought in the medical profession. One school preferred very clear cut definition on establishing facts of a relationship and the other school advocated that medical practitioners be given more flexibility in exercising their judgement. He said that the Administration would liaise with the Board and the medical profession to resolve the issue.

Papers provided by the Board
(LC Papers Nos. CB(2)986/98-99(01) and (02))

28. HBCO said that in response to the request made by members at the meeting on 9 December 1998, the Board had provided a sample applicant's file on living non-related transplant with personal details deleted and a paper on "Consideration of Applications for Living Non-related Transplants - Assessment under section 5(4)(d) and (e) of Cap. 465". He said that the Board had requested that the information contained in the second paper be kept confidential. The Chairman said that if members wished to discuss the second paper, a closed door meeting could be arranged.

29. Dr LEONG Che-hung said that given that the Amendment Bill would resolve the operational problems in respect of unconscious recipients, the only reason for the Board to disapprove an application in the future was commercialisation. He said that after studying the second paper, he did not see that the Board could base on the guidelines to establish facts of commercial dealings. He expressed concern about the Board being challenged on disapproved applications. HBCO explained that the guidelines provided in the second paper were not exhaustive. In assessing whether the conditions of section 5(4)(d) and (e) had been satisfied, the Board would examine the available factual information. The scope of such information might be very extensive and would vary from case to case. The Board would be open-minded and would consider any relevant information supplied by the applicant, who was the medical practitioner who had clinical responsibility for the donor. Mrs Sophie LEUNG supplemented that the information provided by the applicant had an important bearing on the decision of the Board.

Submissions received
(LC Papers Nos. CB(2)673/98-99(01), 964/98-99(01) & (02), 927/98-99(01), 974/98-99(01) & (02), 990/98-99(01) & (02), and 1018/98-99(02) & (03))

30. Members noted that a total of 10 submissions had been received. Referring to the submission tabled at the meeting (LC Paper No. CB(2)1018/98-99(03)), the Chairman said that the Department of Surgery of the Faculty of Medicine of the University of Hong Kong would be invited to give views at the next meeting.

Estate Doctors Association Ltd (EDA)
(LC Paper No. CB(2)974/98-99(01))

31. DSHW explained that the reason for the Chairman of the Board not to be a registered medical practitioner was to avoid conflict of interest. There was no professional discrimination as such. Members raised no queries on item 1 of the paper.

32. Referring to item 2 of the paper, the Chairman said that the EDA had proposed that in case a recipient was incapable of understanding, two independent registered medical practitioners who did not have any clinical responsibility for the recipient could act on behalf of the recipient to give consent to receiving an organ, provided that there was no objection from the family members of the recipient. He said that the EDA and the two deputations were in favour of participation of the recipient's family in making a decision. The Chairman considered that involving a third-party in the decision process would only complicate the matter. Mr LAW Chi-kwong said that it would become even more complicated if there were disputes among family members. The Chairman said that if family members were allowed to give consent on behalf of the recipient, clear definition of the next of kin should be provided.

33. DSHW said that while it was feasible to define the next of kin in law and to prioritise the relationship, some recipients might not have any close relatives to act on their behalf. He said that having listened to legal opinion and having regard to the objective of acting in the best interests of the patient, it was decided that medical practitioners, who had the professional knowledge about the condition of a recipient, should be the ones to make the certification and submit the application to the Board when a recipient became unconscious, rather than allowing the decision to rest with family members. Members supported the Administration's proposal.

34. The Chairman said that the EDA had also proposed in item 3 of the paper that consent to the removal of an organ from a mentally incapacitated person (MIP) or consent to receive an organ by the MIP from the donor could only be obtained exclusively through the court and could not be given by the guardian of the MIP. In response to the Chairman, Mr LAW Chi-kwong explained that the proposal had taken into consideration the possibility that the guardian or parents might not be acting in the best interests of MIPs in living related organ donations. He said that this was a complicated issue, which was similar to the issue raised earlier about allowing family members to give consent on someone's behalf. DSHW said that the Administration was aware of the problem of MIP donors and was studying the matter.

35. Addressing members' concerns, Senior Assistant Legal Adviser (SALA) explained that the degree of capacity required to consent to medical treatment in law was the capacity to understand in broad terms the nature and effect of the treatment proposed. If a MIP did not have the capacity to understand, only the guardian or parents could give consent to medical treatment. As far as organ donation was concerned, if a MIP had the required capacity to understand the organ transplant, he could give a valid consent. If he did not, neither the guardian nor parents could give a valid consent because removing an organ from a body might not be considered as medical treatment in law. In response to a question from the Chairman, SALA said that section 5(4)(d) required that the donor per se to give consent to the removal of an organ, and not the guardian or parents.

Alliance for Patients Mutual Help Organisation (APMHO)
(LC Paper No. CB(2)964/98-99(02))

36. Dr LEONG Che-hung said that in item 3 of the paper, the APMHO had suggested to establish an appeal mechanism to handle disapproved applications. The Chairman said that the public did not have a full understanding of the Board's operation. He explained that the Board would be receptive to supplementary information and new evidence from applicants. HBCO affirmed that the Board's door would always be open if new evidence was supplied. DSHW added that the Board was broadly representative and members would carefully consider an application before giving the final decision. He considered another tier of appeal unnecessary. Dr LEONG said that the Board and the appeal council were essentially doing the same task, i.e. ascertaining facts about commercial dealings. He did not see the justification for the proposal. Members agreed.

37. In response to a suggestion from Dr LEONG Che-hung, the Chairman said that he would not support adding "the decision of the Board is final" in law based on two reasons. Firstly, it was a life and death decision and secondly, if new evidence came up, it would no longer be a final decision. Members supported the view.

38. Referring to item 7 of the paper, the Chairman agreed that the HOTO should be reviewed from time, taking into consideration the rapid development of surgical transplant techniques and the needs of the medical profession and the patients. In response, DSHW undertook to address the issue during the resumption of second reading debate on the Amendment Bill.

Administration's reply to the seven submissions
(LC Paper No. CB(2)1018/98-99(02))

39. Members accepted the replies given by the Administration on items 1 to 7. On items 8 and 9, the subject of quorum had been discussed under paragraphs 21-24. Members noted that items 10 and 11 had been dealt with earlier.

Consent of recipients

40. Members noted that the subject of the wish of recipients was fully deliberated at the meeting on 15 December 1998 and agreed that such wish should be respected. SALA confirmed that under the common law, an adult patient who suffered from no mental incapacity had an absolute right to choose whether to consent to medical treatment, to refuse it or choose one rather than another of the treatments offered. Neither the court nor the next of kin could give consent to medical treatment on behalf of patients who were unable to give consent. Dr LEONG Che-hung suggested that similar provision should be included in the Amendment Bill to safeguard medical practitioners. DSHW said that he would discuss with the law draftsman to see if this was necessary.

41. In response to a question from Mrs Sophie LEUNG, DSHW said that if a medical practitioner and the Board had acted in accordance with the law, they would have no legal liabilities even if a recovered recipient complained about a specific organ transplanted into him. The Chairman enquired about the protection given to the Board if its decision was challenged in court. DSHW replied that the Administration would provide the necessary support to safeguard the interests of the Board.

Explanation for disapproved applications

42. A brief discussion on the disclosure of reasons for disapproved applications followed. Members noted that the issue was discussed in detail at the last meeting on 15 December 1998. The Chairman suggested that the Administration should consider the way to deal with these requests when they arose.

IV. Date of next meeting

43. The next two meetings would be held on 18 and 19 January 1999 at 8:30 am.

(Post-meeting note : At the House Committee meeting on 18 January 1999, members agreed that a Bills Committee should be formed to study the Amendment Bill. The meeting on 18 January 1999 was changed to a Bills Committee meeting and second meeting was rescheduled to 29 January 1999.)

44. The meeting ended at 6:33 pm.

Legislative Council Secretariat
16 March 1999