NSW Government Releases Discussion Paper On Ante Mortem Interventions In Organ Donation

Monday 23 January 2017 @ 12.39 p.m. | Legal Research

The NSW Government has released a discussion paper regarding changing the laws surrounding organ donation to permit more ante mortem (before death) interventions.  The discussion paper flags possible changes to the Human Tissue Act 1983 (NSW) which is administered by the Ministry of Health and the Guardianship Act 1987 (NSW) which is administered by the NSW Department of Justice.  The discussion paper was released in December 2016, and public submissions on the paper close January 30.

What is the current situation?

The discussion paper says:

“In NSW, consent for donation of organ/s after death is generally given by the patient before death - for example by registering their donation decision on the Australian Organ Donation Registry - and/or the patient’s family after death.

However, if a patient is suitable to become an organ donor via the Donation after Circulatory Death (DCD) pathway, only the patient themself is able to consent to treatments which may be administered before their death, for the purpose of organ donation, which are of no medical benefit to them. These treatments are called ante mortem interventions.”

Currently, ante mortem interventions to potential donors are only allowed if the patient specifically consents to them before their death.  However, many patients being considered for DCD organ donation are not able to make their own decisions at this stage.  This means that any consent to treatment falls under the Guardianship Act 1987.  However, decision-makers under this act can only make decisions in regards to treatment carried out for the purpose of promoting and maintaining the health and well-being of the patient.  As ante-mortem interventions are non-therapeutic in nature, decision-makers cannot generally consent to the procedures, even if the patient has consented to become an organ donor.

The paper notes that this is not the case in some other Australian states, where “the relevant legislation allows consent for ante mortem interventions to be sought from either the equivalent of the person responsible or the senior available next of kin.”


The discussion paper seeks public submissions on four key questions:

1. Should ante mortem interventions be permitted in NSW as part of DCD organ donation?

2. If ante mortem interventions should be permitted in NSW as part of DCD organ donation, which interventions should be permitted?

3. If ante mortem interventions were to be permitted in NSW, should the Human Tissue Act 1983 be amended to allow the patient’s senior available next of kin to act as a substitute decision maker for patients who lack capacity and consent to ante mortem interventions?

4. What safeguards should be put in place to ensure that ante mortem interventions only occur in appropriate circumstances that do not harm the patient?

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