Human Tissue (Transplantation, Post-Mortem, Anatomical Examination and Public Display) Act 2024
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Designated family member in relation to relevant person | ||
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7. (1) (a) This section shall apply to— | ||
(i) the seeking and obtaining of appropriate consent or where deemed consent applies, seeking confirmation that there is no objection to a proposed transplantation of organs of a relevant person in accordance with Part 2 , | ||
(ii) the seeking and obtaining of appropriate consent in relation to a proposed removal of tissue and cells from a relevant person in accordance with Part 2 , and | ||
(iii) the seeking and obtaining of post-mortem consent in relation to any proposed post-mortem activity in respect of a relevant person in accordance with Part 3 . | ||
(b) Subject to this section, when a registered medical practitioner or suitably qualified person under the direction of a registered medical practitioner is— | ||
(i) seeking and obtaining appropriate consent or, where deemed consent applies, seeking confirmation that there is no objection to a proposed transplantation of organs of a relevant person in accordance with Part 2 , | ||
(ii) seeking and obtaining appropriate consent in relation to a proposed removal of tissues and cells from a relevant person in accordance with Part 2 , or | ||
(iii) seeking and obtaining of post-mortem consent in relation to any proposed post-mortem activity in respect of a relevant person in accordance with Part 3 , | ||
he or she shall seek such consent or confirmation from a designated family member. | ||
(2) In this Act, a “designated family member” means a person, who is, or was immediately before the death of the relevant person— | ||
(a) a spouse or civil partner of the relevant person, | ||
(b) a cohabitant of the relevant person, | ||
(c) a child of the relevant person, | ||
(d) a parent of the relevant person or a person who was a guardian of the relevant person before that relevant person attained 18 years, | ||
(e) a brother or sister (whether of the whole or half blood) of the relevant person, | ||
(f) a grandparent of the relevant person, | ||
(g) a grandchild of the relevant person, | ||
(h) an uncle or aunt (whether of the whole or half blood) of the relevant person, | ||
(i) a niece or nephew of the relevant person, or | ||
(j) a close friend of the relevant person who can demonstrate to the satisfaction of the person seeking consent or confirmation, as the case may be, that he or she can determine and accurately convey the wishes of the relevant person concerned. | ||
(3) Where in relation to a relevant person, a person referred to in subsection (2) is a person— | ||
(a) to whom a deed of separation or a decree of judicial separation is granted in relation to the relevant person, | ||
(b) who has entered into a written agreement to separate with the relevant person, | ||
(c) who has separated and ceased to cohabit with the relevant person for a continuous period of at least 12 months, | ||
(d) who does not have the capacity to consent, or | ||
(e) who immediately before the death of the relevant person, had not yet attained the age of 18 years (other than where he or she is the parent of that relevant person), | ||
that person shall be disregarded for the purpose of subsection (1). | ||
(4) Appropriate consent, including post-mortem consent, as appropriate, or, in the case of deemed consent, confirmation that there is no objection to deemed consent may be obtained from any designated family member with whom the registered medical practitioner has had real and substantial contact in relation to the care and treatment of the relevant person. | ||
(5) Where subsection (4) does not apply, appropriate consent, including post-mortem consent, as appropriate, or confirmation that there is no objection to deemed consent shall be obtained from a person whose relationship to the relevant person is accorded the highest ranking in accordance with subsection (2). | ||
(6) Where more than one person falls within a paragraph in subsection (2)— | ||
(a) each person within that paragraph shall be ranked equally, and | ||
(b) consent or confirmation that there is no objection to deemed consent may be obtained from any of the persons referred to within that paragraph. | ||
(7) In a case where persons of equal rank referred to in subsection (6)(a) are not in agreement and are unable to reach agreement in relation to consent or in the case of deemed consent confirm that there is no objection, the registered medical practitioner or, a suitably qualified person on behalf of the registered medical practitioner who is seeking such consent or confirmation in accordance with subsection (1) shall ask the persons concerned to reach a consensus agreement. | ||
(8) Where there is no appropriate consent, including post-mortem consent, as appropriate, or, in the case of deemed consent, no confirmation of no objection to deemed consent (by way of consensus reached under subsection (7) or otherwise), as the case may be, the proposed transplantation or non-coronial post-mortem examination concerned shall not, subject to section 51 , proceed. | ||
(9) For the purposes of subsection (1), a person who is not otherwise to be disregarded under subsection (3), shall not be included as a designated person under subsection (2) if— | ||
(a) the person does not wish to consider whether or not he or she objects or consents, | ||
(b) the person is unable to make a decision whether or not to object or consent, | ||
(c) the person is unable to confirm that there is no objection to deemed consent, | ||
(d) having regard to the proposed transplantation or non-coronial post-mortem examination in relation to which consent is sought, it is not reasonably practicable to communicate with the person in the time available if consent in relation to the transplantation or examination is to be acted on, or | ||
(e) the relationship between the person and the relevant person cannot be confirmed for the purpose of this section. | ||
(10) Where a designated family member is considering whether to provide appropriate consent, including post-mortem consent, as appropriate, consent or, in the case of deemed consent, confirmation of no objection, the family member shall consider and give substantial weight as to whether or not he or she believes that the relevant person, the subject of the request, would have had an objection to such donation, removal or non-coronial post-mortem examination. | ||
(11) Without prejudice to the generality of section 6 , the Minister shall issue guidelines in relation to the operation of this section, which guidelines shall include and make provision for the standard of contact appropriate to establish real and substantial contact for the purposes of subsection (4). | ||
(12) In this section— | ||
“decree of judicial separation” means— | ||
(a) a decree under section 3 of the Judicial Separation and Family Law Reform Act 1989 , or | ||
(b) a decree or order (howsoever described) of like effect to the decree referred to in paragraph (a) granted under the law of a place other than the State and recognised under the law of the State; | ||
“relevant person”, means the deceased person in relation to whom— | ||
(a) appropriate consent for proposed transplantation activities or confirmation that there is no objection to deemed consent under Part 2 is sought, or | ||
(b) post-mortem consent for a non-coronial post-mortem examination in accordance with Part 3 is sought. |