8.

Special Procedures

Status: Adopted
Date reviewed: November 2005
Date due for review: November 2008

Introduction
N.B. The Guideline deals with special procedures for persons with a disability who are at least 18 years of
age. Separate procedures are in place for children.
The following guideline has been developed to assist staff in dealing with cases that are often extremely
complex and raise issues that involve controversial decisions in the context of a special procedure. OPAs
focus is, of course, on ensuring that any outcome is in the best interests of the person with a disability.

Children
The Family Court of Australia has jurisdiction for children under the age of 18, not limited to children
with a disability, for the special procedures of non-therapeutic sterilisation and hysterectomy, gender
reassignment, tissue and organ donation. In Victoria protocols have been developed by the Family Court
in which the Office of the Public Advocate assists the Court by gathering information for the Court
hearing, including medical reports, acts as an advocate and provides a report to the Court if the matter
proceeds to hearing. These procedures are set out in the publication "A question of right treatment - the
Family Court and Special Medical procedures for children" (OPA resource collection LW107. In general
terms the same guidelines should be followed as for reports for the Tribunal.
In 2003, a national protocol was adopted by AGAC in relation to special procedures for children. A copy
of this protocol is in the Public Advocate's files. Subsequently a meeting of State Attorneys-General
2004 has indicated their intention to have responsibility for these procedures for children transferred to
the Guardianship Tribunal in each State.

What is a special procedure?

1986 (the Act). Section 3 of the Act states that a special procedure is:

Any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently
infertile the person on whom it is carried out; or

Any procedure carried out for the purposes of medical research; or

Termination of pregnancy; or

Any removal of tissue for the purposes of transplantation to another person; or

Any other medical or dental treatment that is prescribed by the regulations to be a special
procedure for the purposes of Part 4A.

Legal framework for consent to special procedures

It is only the Victorian Civil and Administrative Tribunal (the Tribunal) which has the power to give
consent to a special procedure for a person with a disability. Only a person who is the person
responsible for the patient (see section 37 of the Act) or any person who, in the opinion of the Tribunal
has a special interest in the affairs of the person, can make an application to the Tribunal for consent to a
special procedure (42 B).
When an application is made, the Tribunal must give notice of the application to the patient, the Public
Advocate and any other person whom the Tribunal considers has a special interest in the affairs of the
patient.
The Tribunal may, at the request of or with the consent of the person responsible, confer on the person
responsible the authority to consent to the continuation of the special procedure or the carrying out of any
further special procedure of a similar nature. The Tribunal may impose conditions or give directions to
the person responsible regarding this authority in practice such an order is rarely made.
In cases involving a special procedure, as in all matters before it, the Tribunal is bound by the provisions
in section 4(2) of the Act. This section states:
It is the intention of Parliament that the provisions of this Act be interpreted and that every function,
power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised
or performed so that (a) the means which is the least restrictive of a persons freedom of decision and action as is
possible in the circumstances is adopted; and
(b) the best interests of a person with disability are promoted; and
(c) the wishes of a person with a disability are wherever possible given effect to.
In applying these principles to cases involving a special procedure, in this case sterilisation, the former
Guardianship and Administration Board has held in the matter of P (unreported) 19 November 1987 at
page 6 that prior to an order being made:
less restrictive options must be thoroughly investigated. In the case of P this means
acknowledging firstly, her right to adequate information and maximum opportunity to make her
own decisions. Secondly, it involves an adequate exploration of Ps potential to make her own
decisions through an appropriate form of human relations, health and sexual counseling, and
thirdly, her right to professional care and advice which would explore all possible options before
choosing a more restrictive one.
The Tribunal refers most applications for a special procedure to OPA with a request for investigation and
advocacy under clause 35(1) of schedule 1 to the VCAT Act 1998. A written report is required to be
submitted to the Tribunal to assist the hearing of the matter. The Tribunal must commence to hear an
application for a special procedure within 28 days after the day on which the application is lodged with
the Tribunal.

The role of OPA

As in all matters before the Tribunal:

OPA only represents the interests of the person with the disability.
OPAs role is to ensure that the persons best interests and expressed views are represented.
OPAs role is to investigate and gather information consistent with the intentions of the Act that
will assist the Tribunal in making a determination.

Investigation must always address the competency of the person with a disability to make an
informed decision/choice about a special procedure. This is achieved by establishing or promoting
the following:
(a)
(b)
(c)

the nature of their disability and how it affects their ability to make decisions;
the ability of the person to make a decision in the future, having had the opportunity of
appropriate education, training and support;
ensuring the maximum opportunity for the person to express their views in a way that
accepts and enhances individual forms of expression.

The following guideline will now consider each special procedure separately to clarify the role of OPA
and OPA staff.

Sterilisation
Status: Adopted
Date reviewed: March 2004
Date due for review: December 2006
Procedure that is intended, or reasonably likely, to have the effect of rendering permanently infertile the
person on whom it is carried out.

Relevant Legislation
Guardianship and Administration Act 1986 (the Act), sections 3, 38, 39 & 42E

Defining permanent infertility and OPAs general approach

Infertility - an intervention (usually surgical) which results in the termination (meaning permanent) of an
individuals capacity to reproduce.
OPAs general approach requires that the least restrictive option needs to be considered on a case by case
basis for the person with a disability. Most importantly:
A person with a disability has the same rights as other people and the proposed procedure should
never be solely for the convenience of carers or others.
A useful question to ask is whether the procedure would be recommended in the case of a person of the
same age without a disability. Is the reason for the proposed intervention therapeutic or non-therapeutic?
Would the proposed medical procedure be recommended for any person presenting with the same or
similar problems or issues? These practice issues will be explored at a later stage in the policy.

Distinguishing between infertility and contraception

Contraception is the prevention of pregnancy which technically is a form of temporary infertility (usually
chemical, eg the pill or by injection eg depo provera or inter uterine
device eg IUD).
The contraception options for both women and men are listed below, beginning with the least restrictive
option. Within this context, it can be determined whether a procedure is a special procedure for the
purposes of the legislation, that is, is it likely to or will it lead to permanent infertility.

Women
DESCRIPTION
Contraception:
Oral contraceptives
(The Pill):
Agents and Devices:
inter-uterine devices,
diaphragm
pessaries and cervical caps
Agents and Devices:
Inter-uterine systems,
mirena levonorgestrel
Intravaginal spermicide:
Creams, foams, gels, sprays
Norethisterone: (Primolut)
Depo-Provera: (2)
a three monthly (progesterone)
injection
Sterilisation:
Tubal Ligation:
Closure of fallopian tubes
Endometrial Ablation:
Removal of the lining of the
uterus
Hysterectomy:
(1) Removal of the uterus (most
common)
(2) Removal of the uterus and
fallopian tubes and, at times,
the ovaries (vary rare and
usually associated with a
therapeutic condition)
Oophorectomy:
Removal of one or both ovaries

MENSTRUATION

FERTILITY STATUS

continues

reversible infertility (1)

continues

reversible infertility

temporarily ceases

reversible infertility

continues

temporary infertility

temporarily ceases
temporarily ceases

reversible infertility
reversible infertility

continues

sterile (sometimes may be

reversed by microsurgery)

Reversible

stops

sterile

stops

sterile

1 Infertility lasts while being taken; when not taken the woman reverts to normal fertility status.
2 Approved for contraceptive use by the Drug Evaluation Committee 1994.

Men
DESCRIPTION
Contraceptive Products:
Condoms:
Prophylactic sheath to cover the
penis
Depo Provera
Androcur:
Sterilisation:
Orchidectomy (Castration):
The removal of both testes
Vasectomy:
Division or resection of the vas
deferens

FERTILITY STATUS

temporary infertility
temporary infertility
lowers sexual drive
temporary infertility
sterile
sterile (but can sometimes
be reversed by
microsurgery).

For further information or discussion on the content of the table, contact should be made with specialist
medical staff, for example, at the Royal Womens Hospital.

Guidelines For Practice

The Tribunal refers most applications for an infertility special procedure to OPA with a request for
investigation and advocacy. A written report is required to be submitted for the hearing of the application.
The guidelines for preparing reports are as follows:
(a) Independent assessment of the persons ability to make an informed decision is essential as the
Tribunal has to determine whether the person in fact has a disability that affects their capacity to
make such decisions.
(b) The expressed wishes of the person should be obtained, as far as is reasonably possible, and
seriously considered. It is necessary that these wishes are fully documented in the written report.
(c) Least restrictive alternative/s in terms of medical or behavioural management should be
thoroughly investigated. Evidence is required of past options trialed including time frames, why
they have failed to adequately deal with the situation and are unlikely to be successful in the
future. Consideration should be given to the persons quality of life and any impacts on this.
Evidence should be supplied by medical practitioners and specialists. A second specialist opinion
should be considered.
(d) Evidence is required to establish whether the person (those who are able to benefit and
understand) has been given maximum opportunity to access education and information (via an
appropriate form of human relations, health and sexual counseling program), which could enable
her/him to participate in decision-making. She/He must also be given access to professional care
and advice that facilitates exploration of all possible options of a less restrictive and evasive
nature. If these opportunities have been denied then it is incumbent upon the investigator/advocate
to refer the person to an appropriate counseling and education service eg Monash Medical Centre,
Family Planning Association, Co-Care etc. The service should provide a written report for
submission to the Tribunal.
The written report should make recommendations as to whether the person is able to provide an
informed consent to the proposed procedure. The report should indicate whether the person may

have the capacity, in the future, to provide an informed consent (eg following access to further
education etc).
(e) Evidence is required to establish what is in the best interests of the person.
Consideration needs to be given to the age of the person, insofar as her/his future fertility and
sexual development is concerned. Consideration needs to be given to the possible physiological,
psychological and emotional responses of the person if the proposed procedure was to proceed or
not proceed. Referral to a psychiatrist/psychologist may be required and recommendation/s
submitted to the Tribunal.
If necessary, evidence should be obtained from the persons day placement, workshop,
accommodation and the like to supplement medical, psychological and/or counseling
recommendation/s. If the person has a case manager then a comprehensive report should be
obtained (eg H&CS-IDS) and submitted to the Tribunal.
The persons family should also be consulted and opinions obtained.
Further expert opinion may be necessary if the investigator is not persuaded by clear and
convincing evidence that the proposed procedure is in the persons best interests. Evidence should
clearly demonstrate legitimate not speculative benefits.
A useful and necessary question to answer is whether there are less restrictive or less intrusive
means of achieving substantially the same benefits. Clear appraisal and explanation of legitimate
benefits need to be noted for the Tribunals consideration.
(f) Confidentiality must be protected in both the process of gathering information and in the final
Report that goes to the Tribunal.
The information given in the Report and/or provided by staff at the hearing should be limited to that
which relates directly to the matters being considered by the Tribunal

Significant Issues
Is the procedure for medical reasons?
If the answer is yes then the procedure is substantially a health matter but will still be considered by the
Tribunal as a special procedure. This is because the necessary surgical procedure results in infertility. In
other words, infertility is a by-product of an intervention deemed necessary to treat a medical condition
(eg cancer). In summary, regardless of whether a procedure is for therapeutic or non-therapeutic reasons,
if it fits within the definition of a special procedure, then the Tribunal is the body that must give consent.
(Note that if a medical practitioner provides conclusive evidence that a person is permanently infertile,
then, in these circumstances, a procedure is not a special procedure for the purposes of the Act).

Why Is The Procedure Being Proposed Therapeutic Or NonTherapeutic Reasons?

Therapeutic reasons:
There is a clearly defined gynaecological illness or condition, which requires treatment for which
the proposed surgical procedure is indicated;
The diagnosis has been made by a general practitioner and a specialist and is a current diagnosis;
and
The purpose of the proposed procedure is to treat the symptoms of the illness/condition.

If the above are supported by clear evidence and are not of a speculative or anticipatory nature then the
proposed surgical intervention is likely to be considered a therapeutic intervention.
Non-therapeutic reasons:
Behavior - menstrual management
Sexual activity - pregnancy
Sexual abuse - pregnancy
Non-therapeutic reasons should only be considered in extreme cases where the following options have
been systematically trialed and documented:
Education about reproduction and health;
Training in protective behaviors;
Counseling for human relations;
Behaviour management (including menstrual management);
Appropriate contraception methods of a less restrictive nature.
Difficulties need to be clearly articulated and demonstrated, over a significant period of time, to establish
conclusively that the presenting problem is a significant impairment to the womans quality of life. As
noted earlier, intervention should never be solely for the convenience of carers or others. It must be
clearly established that the proposed medical intervention is in the best interests of the woman.
OPA will always provide a written report that includes appendices with medical, psychological and other
specialist reports.

Other Relevant Policies

None

Other Relevant References

"A question of right treatment - the Family Court and Special Medical Procedures for Children"
1998 - OPA Resource Collection LW107.
Australian Guardianship & Administration Committee National Protocol for Special Medical
Procedures (Sterilization) 30 September 2003 - copy kept with Public Advocate.

Other Relevant Legislation

None

Medical Research
Status: Adopted
Date reviewed: November 2005
Date due for review: November 2008

Preamble
The following guideline has been developed to assist staff in dealing with cases that are often extremely
complex and raise issues that involve controversial decisions in the context of a special procedure.
OPAs focus is, of course, on ensuring that any outcome is in the best interests of the person with a
disability.
The policy deals with special procedures for persons with a disability who are at least 18 years of age.
(Special medical procedures for children are dealt with in a separate policy).

What Is A Special Procedure?

The Guardianship and Administration Act 1986 (the Act), Section 3 states that a special procedure is:
Any procedure intended, or reasonably likely, to render the person permanently infertile;
Any procedure carried out for medical research;
Termination of pregnancy;
Any removal of tissue for the purposes of transplantation to another person;
Any other medical/dental treatment that is prescribed to be a special procedure.

Introduction - The Issue

Commencing on 1 January 2003, amendments to the Act affected the process for special procedures
including procedures carried out for the purposes of medical research. In particular, the definition of
patient in s36 of the legislation was amended by removal of the words permanent or long term in the
context of disability. From 1 January 2003, a "patient" is a person aged 18 years or over who has a
disability and who is incapable of giving consent (that is, incapable of understanding the general nature
and effect of the proposed procedure or incapable of indicating whether or not s/he consents or not).
Only the Victorian Civil & Administrative Tribunal Guardianship List (VCAT) can consent to the
carrying out of a special procedure on a patient who is unable to provide consent. However, the consent
of VCAT is not required in certain situations. Research does not require VCATs consent and, thus no
application needs to be provided to VCAT, where:
1. The procedures are carried out for a purpose other than medical research;
2. The research is not medical research;
3. There is no procedure within the meaning of the Act.
VCAT has indicated that no application to the Tribunal is necessary in relation to projects involving the
following proposed procedures (on the basis that they do not constitute special procedures):
Simple forms of measurement of height, weight, blood pressure, vision;
Routine diagnostic measurement, such as ECCs and MRIs, where there is minimal risk of harm to
the patient;
Collection of body tissue by non-invasive means e.g. collection of urine or sputum samples,
provided the collection is not for the purposes of genetic or other controversial research;
Observation of the persons activities without significant compromise of privacy;
Copying or gathering information collected about people in the course of their routine medical
treatment;

Talking to or questioning the person, whether by formal questionnaire, personal interview or focus
group, where the consequences of participation are not detrimental to the persons interests.

4. If the procedures are special procedures but are proposed in an urgent or emergency context in
which the provisions of s42A(1) are satisfied then s42 procedures apply. (For details of s42A see
Policy - Medical/Dental Treatment for Patients Who Cannot Consent).

Medical Research requiring VCATs consent

The VCAT has determined that the following are the kinds of procedures in non-urgent circumstances:
Any surgical procedure;
The removal of samples of body tissue by invasive processes e.g. collection of blood samples;
The administration of any trial medication (including placebo) by any means (injection, orally,
etc);
The exposure of the person to any form of radiation, gas or noxious stimuli (smells, strobe lights,
etc);
Any bodily restraint of the person or confinement or detention;
Any deprivation of food or water for a period sufficient to cause significant discomfort or possibly
injury to health;
Interviews or questionnaires involving matters of a potentially disturbing nature e.g. questions
relating to sexual behaviour, illegal use of drugs or other unlawful behaviour.

Relevant Legislation

Guardianship & Administration Act 1986.

Medical Treatment Act 1988.
Mental Health Act 1986.
National Health & Medical Research Council Act 1992.
Intellectually Disabled Persons Services Act 1986.
Health Act 1956.

Guideline Statement
OPA does not normally receive a copy of the research proposal. The Registrar of the Guardianship List
will forward a list of research proposals to the Manager, Advocacy and Guardianship, East and to
members of the OPA research committee on at least a quarterly basis.
Section 42B of the Act specifies that the Tribunal must give notice of 'an application, the hearing of an
application and any order, directions or advisory opinion of the Tribunal,' in respect of an application for
a special procedure, to the Public Advocate. However the OPA will not have a role in the monitoring and
checking of applications, this will be the role of the VCAT. In most instances the research itself will have
been approved by the appropriate Health & Human Research Ethics Committee for the institution
concerned, prior to an application to the VCAT.
The Deputy President of the Guardianship List, or the member hearing the application for consent to the
research proposal is able to refer documents relating to the research proposal to the OPA should they
consider that there is a need for the OPA to review the application. Similarly, after a brief review of the
list, the OPA will seek further information and documentation considering any research proposal should a
member of the OPA Committee believe that there is a need to consider further aspects of the application
further.

However the OPA does not consider that there is a proactive role for the office in over sighting
applications to the V.C.A.T. for consent to medical research and will only intervene in matters involving
contentious medical research that are brought to its attention.
Where there are concerns raised about a specific medical research project, the concerns will be discussed
with the manager or deputy manager of either region to determine whether a more through investigation
is required
Should the office undertake an investigation, the investigator will contact the principal researcher/s for
further information and inform them that the office has some concerns about the research. VCAT will
also be alerted to concerns of OPA and appropriate action to be agreed upon. This action could include
intervening in the hearing or referral to an Advocate/Guardian for further investigation and report.
Storage of information:
OPA to have a systemic file: Special Procedures/Medical Research
File to reference:
Institution concerned,
Person on whom special procedures to take place (including name, address, whereabouts
and date of birth to assist cross reference) as sent by VCAT;
Name and detail of researcher.

Other Guidelines Related To Special Procedures

As indicated above the following are important related guidelines;
Special Procedures
Consent to Medical and Dental Treatment

Other Relevant References

Declaration of Helsinki.
National Statement on Ethical Conduct in Research Involving Humans 1999.
NHMRC Guidelines.

Termination of Pregnancy
Status: Adopted
Date reviewed: June 2005
Date due for review: June 2008

Relevant Legislation

Guardianship and Administration Act 1986 (the Act), sections 3, 38, 39 & 42E
Crimes Act 1958, section 65 (see transcribed section below)

Policy
Termination of pregnancy is defined as a special procedure in section 3 of the Act. As such, consent to
termination of pregnancy for a woman with a disability who is a patient, incapable of giving consent,
within the section 36 definition in the Act, must be given by the Victorian Civil and Administrative
Tribunal (the Tribunal). See sections 39 and 42E of the Act.
Whilst the Tribunal may consent to a special procedure termination of pregnancy, in practice this
implies the co-operation of the woman at the very least. Only in the most exceptional circumstances
would OPA recommend that the Tribunal consent to the termination of a pregnancy if the woman was
actively opposed to the termination. The Public Advocate is not aware of having recommended
termination of pregnancy in such situations and any such recommendation should be discussed with the
Manager before the report is submitted. Serious consideration would need to be given by the Tribunal as
to how the termination could be performed in these circumstances.
OPA may have a role in providing advice or advocacy prior to an application for a special procedure, and
also in investigation, advocacy and preparation of reports at the request of the Tribunal. On occasion, the
Public Advocate may be appointed as a guardian to consent to ongoing health care for the woman
subsequent to Tribunal consent to the procedure.
OPAs policy is that a request or application for termination of pregnancy should be dealt with
expeditiously and thoroughly, focusing on the best interests of the pregnant woman.
An advocate/guardian who has an ethical or conflict of interest issue with the termination of a pregnancy
should return the file to the manager for re-allocation.

Menhennit Rules
Under section 65 of the Crimes Act 1958 it is an offence to unlawfully procure or attempt to procure an
abortion. It was Justice Menhennitt in R v Davidson [1969] VR 667 who ruled that the relevant law in
relation to unlawfulness is as follows:
Evidence must be presented that a medical practitioner believes on reasonable grounds that the
termination of pregnancy will be (a) necessary to preserve the woman from serious danger to her life or her physical or mental health
(not being merely the normal dangers of pregnancy or childbirth) which the continuance of
pregnancy would entail; and
(b) in the circumstances not out of proportion to the danger to be averted.
The phrase physical or mental health has not been further explored at law.

Key Issues
In investigating an application to the Tribunal the following issues should be considered and, time
permitting, written reports provided. It is essential to establish the timelines within which a decision is
required and this is related to factors such as the progress of the pregnancy, the risk to the womans health
and the need for professional counselling to occur prior to the procedure. Often matters are referred to
OPA when a decision is required within a few days of the recommended time limit for the procedure
being implemented. Lack of time therefore does not always allow for a full written report by OPA to be
prepared for the hearing and OPA staff can give oral presentations to the Tribunal if need be. However,
written medical reports from doctors and specialists should always be provided as well as other reports
where indicated as necessary and available. The investigator may consider whether a second opinion is
needed (on the basis of the adequacy or clarity of the medical opinion submitted with the application)
It is imperative to quickly establish that all parties, including medical professionals, are aware of the
application to the Tribunal and understand the law in relation to consent for a special procedure.

The Womans Capacity To Give Or Not Give Consent.

Because a woman has a disability and an application has been made to the Tribunal, the advocate should
not assume that the woman does not have capacity to make a decision about this specific issue.
Applications may be made in haste by case managers or other professionals without seeking proper
assessment by trained medical personnel and/or counselors. Where there is doubt, second opinions
should always be sought from individuals or agencies with expertise in this area such as Family Planning
Victoria or Centre for Developmental Disability Health Victoria.

Best Interests
In making a referral for investigation of an application, the Tribunal particularly requires that the
advocate address Section 38 of the Act relating to best interests of the woman, namely:
The wishes of the woman to continue or terminate the pregnancy. (What are her past and/or present
expressed wishes? How strong is her desire to continue or terminate the pregnancy? Has she been
presented with all information in order to make an informed decision? Has she been fully informed of
any potential medical complications to the foetus through drug therapy and the like? Does she
understand the implications of the pregnancy, birth and caring for a child? Have there been any
previous pregnancies and what were the outcomes?)
The wishes of the nearest relative or any other family members (Explore whether the PRP prefers not to
inform particular relatives (this is particularly pertinent if the woman is later found to have capacity to
consent to the procedure). Is there a person responsible willing and available to act under Section 42F of
the legislation if the Tribunal confers authority to consent to continuing or further special procedure?)
The consequences to the patient if the termination is not carried out. (Is the womans life in danger or
will her health be seriously endangered if the pregnancy is to continue? Will the womans psychological
well-being or mental state be compromised if the pregnancy continues?)
Any other alternative treatment available
The nature and degree of any significant risks associated with the termination or any alternative
treatment

Whether the termination to be carried out is only to promote and maintain the health and well-being of the
patient
Any other matters prescribed by regulation.
In addition it is recommended that the report also seek to answer:
Does the woman have views based on religion or culture which are relevant to the termination of
pregnancy?
Whether the doctor would recommend the termination if the patient did not have a disability

Menhennit Rules
Where OPA is involved, it should specifically address these Rules in both the investigation and report to
the Tribunal, even though in practice, these rules appear to be liberally interpreted by the medical
profession. While it may seem reasonable to presume that, if the doctor is proposing the termination, s/he
has considered these issues, the advocate needs to specifically address them in the report.
Thus it can be pointed out to the doctor that it is the Tribunal that will ultimately decide whether it is in
the womans best interests for her to have a termination of pregnancy and that, in its deliberations, the
Tribunal will need to know that the doctor considers this procedure to be lawful. In order to report the
doctors advice on this to the Tribunal, ask the doctor to address the following questions:

do you believe that this termination is necessary to preserve Ms A. from a serious danger to her
life or physical or mental health (not being the normal dangers of pregnancy and childbirth)?
do you believe that this proposed termination is not out of proportion to the danger posed to Ms.
As life or physical or mental health?

Notification Of Parties By Vcat

VCAT should be advised in the report of any need to urgently fax the Order made to relevant
clinics/medical professionals as time constraints are often critical in these situations. Also include advice
if the PRP is requesting that certain parties not be advised by VCAT. OPA reports, whether written or
oral, should always be as comprehensive as possible, particularly in a situation where no formal Hearing
occurs and the voice of the PRP may be solely represented by the advocates report.

After The Consent Has Been Given

It is the responsibility of the case manager to ensure that the patient is fully supported through the
procedure and that medical professionals are aware of and sensitive to the circumstances of a woman with
a disability undergoing a termination of pregnancy. This includes arranging any follow-up counseling
which would be beneficial to her. If the Public Advocate has been appointed as health care guardian,
these arrangements should be made in conjunction with the guardian.
It is essential that medical and nursing staff understand the meaning of the order which has been made by
VCAT, that they respect it and are capable of managing the patient and her needs as a disabled person.
The case manager and/or guardian should be conscious of, and prepared for, difficulties which may arise
and assist the medical professionals to carry out their role effectively.

Other Relevant Policies

Special Procedures

Other Relevant References

Sample OPA Report on G drive under Practice Resources in the Report Writing Kit.
Crimes Act 1958, section 56
Whosoever being a woman with child with intent to procure her own miscarriage unlawfully
administers to herself any poison or other noxious thing or unlawfully uses any instrument or
other means, and whosoever with intent to procure the miscarriage of any woman whether she is
or is not with child unlawfully administers to her or causes to be taken by her any poison or other
noxious thing, or unlawfully uses any instrument or other means with the like intent, shall be
guilty of an indictable offence, and shall be liable to level 5 imprisonment (10 years maximum).

Removal of Tissue for the Purpose of Transplantation to Another

Person
Status: Adopted
Date reviewed: March 2005
Date due for review: March 2008

Relevant Legislation

Guardianship and Administration Act 1986 (the Act), sections 3, 38, 39 & 42E
Human Tissue Act 1982, Part 2.
Infertility Treatment Act 1995

Policy
People who have capacity are able to donate human tissue if done so in accordance with the provisions of
the Human Tissue Act 1982. The Act sets out a regime for providing consent in Part 2. Human tissue in
this Part of the Human Tissue Act does not include the donation of sperm, foetal tissue or ova.
Where a person is incapable of giving consent to the removal of tissue for the purpose of transplantation,
VCAT may provide such consent in its role to consent to special procedures. OPA may be requested to
provide a report to VCAT in relation to the application.
It is likely that consent to this special procedure will be in relation to:
Kidney donation
Blood donation
Bone marrow donation
Sperm donation.
Applications for the removal of tissue for transplantation are rare. In 2004 there were applications for the
donation of sperm from the husband of the applicant. The husband was on life support and would die
when life support was discontinued. Bone marrow was sought from a woman with an intellectual
disability for her sister who had cancer.
OPA has taken the view that there are many reasons why a person with a disability may wish to consider
tissue donation and they should be able to donate tissue in the same way as people who do not have a
disability.
It is unlikely that such a request would originate from the person with a disability wishing to donate tissue
for altruistic reasons. It is more likely that the request would be made by the another person seeking the
tissue donation on behalf of the recipient of the tissue donation.
In investigating such an application to the Tribunal the following issues should be considered. Written
medical reports should always be provided, and reports should canvas these issues -

The reason for the proposed tissue donation.

Whether the donor is aware of the proposed tissue donation and able to understand the
implications of such a tissue donation. If so, whether they are willing for the special procedure to
take place.

Whether the person with a disability is the only person who can make this donation.

Whether testing has taken place to the extent that it is known whether tissue donation will match
the recipient of the tissue donation.

What are the risks to the proposed donor.

Whether there any medical contra-indications for the person with a disability after the donation
has been given.

What are the benefits to the proposed recipient of the tissue donation.
In relation to the donation of sperm, oocyte or an embryo, regard should be had to the Infertility
Treatment Act 1995. This Act governs the donation of these tissue. The Act establishes the Infertility
Treatment Authority who can provide helpful information regarding legal and ethical requirements of
such donations. For example, at the time of writing this policy the sperm of a dead man cannot be used in
fertility treatment, however, there is some movement to change this law.

Other Relevant Policies

None

Other Relevant References

None

Office of the Public Advocate

Level 5, 436 Lonsdale Street, Melbourne, Victoria 3000
PO Box 13175 Law Courts, Victoria 8010. DX 210293
Tel: 1300 309 337 Fax: 1300 787 510
www.publicadvocate.vic.gov.au