Health Law

Middle of Life Issues

Blood Donations and Transfusions

Who can donate blood?

Under the Transplantation and Anatomy Act 1978 (ACT), an adult of sound mind can donate blood (s 20). For the purposes of this Act, an adult is a person who is 16 or over or who is married. If a doctor advises that the donation of blood by a child is unlikely to be harmful to the child's health and the child agrees to the donation, a parent may give written consent to the donation on behalf of the child.

You can donate blood at the Red Cross Building near Canberra Hospital on the corner of Hindmarsh Drive and Palmer Street or can contact them on (02) 6206 6006. If you have any questions as to whether you are able to donate blood, or the impact your blood donation may have on activities you have for the following days, you can contact the Red Cross Blood Service on 13 14 95.

Blood transfusions to children

In some circumstances, it is lawful for doctors to give blood transfusions to children, even where the consent of a parent or legal guardian has not been obtained or has been refused. It must be the doctor's opinion (and that of at least one other medical practitioner) that, without the compatible transfusion, the child is in danger of dying (Transplantation and Anatomy Act 1978 (ACT) s 23).

If the child is in a hospital, the consent of the chief executive officer (CEO), medical superintendent, or emergency sub committee of the clinical ethics committee should also be obtained.

Organ Donation by Living Persons

What Sort of Human Tissue can be Donated?

The Transplantation and Anatomy Act 1978 (ACT) states that adults may donate specified "regenerative tissue" and "non-regenerative tissue" (ss 8-9). Regenerative tissue is human tissue that, after injury or removal, is replaced in the body of a living person by natural processes (for example, bone marrow). Regenerative tissue can be donated for transplantation to another person or for therapeutic, medical or scientific purposes. Non-regenerative tissue, such as a kidney, can only be donated for transplantation purposes.

Generally, only adults may donate tissue. However, a parent of a child may give written consent to the donation of regenerative tissue by the child for the purposes of the transplantation of the tissue to another member of the family of the child (ss 13-14).

Transplantation of non-regenerative tissue from the body of a child can only occur in very restricted circumstances, such as where a family member is in danger of dying, all parties understand and a specially appointed committee agrees (s 14).

This Act will be subject to change when a collective review of the Human Tissue Act in each jurisdiction is completed. In it's place will be national, uniform legislation governing human tissue donations.

If you have any questions, referrals or concerns about organ donation you can contact the Canberra Hospital on 6244 2222 (24 hours) and request the organ donation co-ordinator. You can also register your (yes/no) intentions on the Australian Organ Donor Register 1800 777 203 (Free call), visit your local Medicare office, or register online. Registrations received from people under 16 will not be recorded on the Donor Register. If a patient is 16 or 17 at the time they are declared "brain dead", their intention or objection to an organ donation may be discussed with a family member at the time of death.

Public Health Legislation

Public health legislation involves a wide variety of laws designed to ensure that the public is protected from health threats such as polluted air, water, food or land, as well as infectious disease outbreaks and other hazardous behaviour (smoking, drug use, etc).

Food and water quality

The Food Act 2001 (ACT) which deals with food labelling (use by and best before dates, percentage labelling) also creates a system for its supervision. The legislation also explains the seriousness of the offences relating to the 'knowingly' unsafe handling or sale of food and well as misrepresentation. The Act ensures ACTEW-AGL's compliance with the Australian Drinking Water Guidelines and also checks on compliance with the Australian Recreational Water Guidelines. Lake Burley Griffin, however, is under Commonwealth, not ACT, jurisdiction and its water quality is monitored by the National Capital Authority. The ACT Health Protection Service has no jurisdiction over Commonwealth buildings and standards there are somewhat mysterious and difficult to ascertain or describe.

Smoking

The Tobacco Act 1927 (ACT) restricts outlets in relation to selling and advertising tobacco. Among other restrictions it limits the sale of cigarette's to people over 18 years and sets out the penalties for sale of cigarettes to a minor or purchase for a minor. The Smoke-Free Areas (Enclosed Public Places) Act 1994 (ACT) requires that public enclosed spaces apply for an exemption before smoking is permitted over a proportion of the premises usually after an upgrade of the air-conditioning system.

Recent amendments to the Tobacco Act 1927 by the Tobacco Amendment Act 2008, which had fully commenced by 28 February 2009, prohibit point of sale displays, remove the ministerial exemption for tobacco advertising and sponsorship, amend the definition of vending machine, ban rewards for smoking product purchases, ban flavoured cigarettes and split packets. The amendments were designed to further minimise tobacco use and exposure by removing displays from view and obliging licensees to store products out of view, for example under the counter or in drawers so that packets and cartons cannot be seen. The new laws exclude tobacco products from fly buys and discount petrol voucher schemes so they don't create an incentive for people to spend more on bulk smoking product purchases to gain a reward.

Asbestos

The Building Act 2004 (ACT) sets out the requirements for building and construction. This includes guidelines where work involves asbestos.

Sexually transmitted and notifiable diseases

The Minister has designated sexually transmitted diseases to include the following: Gonorrhoea, Syphilis, Chancroid, Chlaymydia disease, Genital herpes, Donovanosis (granuloma inguinale), Lymphogranuloma Venereum, SARS. These sexually transmitted diseases are listed in the Public Health Act 1997 (ACT) and the Sexually Transmitted Disease Act 1956 (ACT).

Section 5A of the Sexually Transmitted Diseases Act 1956 (ACT) obliges a doctor to notify the Chief Medical Officer if, on reasonable grounds, they believe that the patient may or has a sexually transmitted disease. Section 6(1) also requires the medical practitioner to notify the Chief Health Officer if the patient fails to have to required treatment. (See also s 100 of the Public Health Act 1997). The pathology testing laboratory is also required to notify if the following diseases are detected (ss 6A and 103 respectively): pertussis, measles, mumps, rubella, campylobacter, cholera, cryptosporidium giardia, salmonella, shigella, typhoid, food poisoning, yersiniosis, hepatitis A, B and C, barmah forest virus, leptosporidiosis, listeriosis, hydatid disease, dengue fever, legionnaire's disease, leprosy, malaria, meningococcal infection, ornithosis, Q fever, Ross River, tuberculosis and other mycobacterium. The Public Health (Infectious and Notifiable Diseases) Regulations 1983 (ACT)made AIDS (and presumably HIV) a notifiable disease in the ACT. This regulation is now repealed but an extensive list of notifiable diseases can be found in the Public Health Notifiable Conditions Determination 2005.

The Sexually Transmitted Diseases Act 1956 (ACT) authorises the ACT Chief Health Officer to require a person suspected of having an STD to submit to a medical examination, s 8 authorises apprehension by the police, and s 9 authorises a Magistrate to order attendance and compulsory detention (s 12) if necessary at a hospital. These requirements do not apply to the military (s 19).

Section 18 of the Public Health Act 1997 (ACT) allows the ACT Health Minister to make a declaration that some conduct is a "public health risk activity." Section 112 creates an obligation on members of the public to report a public health hazard. Section 108 allows authorised notification of carriers of notifiable diseases.

Section 4 of the Blood Donation (AIDS) Act 1987 (ACT) creates a defence if a person receives HIV from a transfusion if the appropriate certificate was on the container.

Prostitution

The Prostitution Act 1992 (ACT)creates liability in a brothel owner for failing to take reasonable steps to stop one of his workers spreading an STD (s 24) or using taking a medical examination as an excuse for falsely representing the worker has no STD (s 26). Prophylactics must be used in legal commercial sex in the ACT (s 27).

Tattoos

The Public Health Act 1997 (ACT) requires everyone involved in skin penetration procedures (including doctors) to pay for and display an annual business licence assuring patients that the practice meets current infection control standards. The definition of "skin penetration procedure" is set out in the Public Health (Risk Activities) Declaration 2005 (No 1):

skin penetration procedure means any process that involves the piercing, cutting, puncturing or tearing of a living human body but does not include the cutting, shaving or dying of a person's hair or closed ear piercing or the use of test equipment.

closed ear piercing means a process of ear piercing that is carried out on the lower lobe of the ear by means of an apparatus that does not come into contact with the skin and can be operated only by the use of sealed and pre-sterilised disposable fittings.

test equipment means lancets, needles and other similar single-use devices used in the testing of glucose or cholesterol levels.

Drugs

The Drugs of Dependence Act 1989 (ACT)requires records and safekeeping of drugs of dependence, which include amongst others: morphine, codeine, dexamphetamine, pethidine, methadone and fentanyl.

Health Promotion and health administration

The Health Promotion Act 1995 (ACT) establishes a board to fund activities related to the promotion of good health, safety and the prevention and early detection of disease.

Section 6 of the Health Act 1993 (ACT) provides that the following guidelines shall govern delivery of public hospital services in the ACT:

• patients must be given the choice to receive public hospital services free of charge;
• access to public hospital services is to be on the basis of clinical need;
• to the maximum practicable extent, the ACT will ensure the provision of public hospital services equitably regardless of patients' geographical location;
• the Commonwealth and ACT Governments must make available information on the public hospital services patients can expect to receive;
• the Commonwealth and ACT Governments are committed to making improvements in the efficiency, effectiveness and quality of hospital service delivery.

Enforcement

Notification or complaints about public health problems (drinking water quality, food sold to the public, sewer chokes (overflowing), animals in backyards, notifiable diseases, pharmaceutical problems) can be made to the Health Protection Service on 6205 1700. The complaint may ultimately make its way to the Chief Health Officer of ACT Health who reports to Chief Executive then to ACT Health Minister. The office also connects with the ACT Government analytical laboratory. Response time can vary from "10 minutes to 10 years" depending on the nature of the complaint.

Mental Health Legislation

The Mental Health (Treatment and Care) Act 1994 (ACT) provides that, if a mentally ill or mentally dysfunctional person requires and refuses treatment necessary for their own health or safety or the safety of the public, that person may be taken by a doctor or the police to an approved health facility (s 37). Reasonable force and assistance may be used (s 38) and the person must be examined within four hours of detention at the health facility (s 40). The examining doctor may then, if satisfied that the person is mentally dysfunctional or mentally ill and immediate treatment and care is necessary, authorise detention for a further three days in an approved mental health facility (s 41). Within twelve hours of such admission, the Community Advocate and the ACT Civil and Administrative Tribunal (ACAT) must be notified (s 42). The person must be given a proper physical and psychiatric examination within 24 hours (s 43). The Tribunal may extend the involuntary detention by a further seven days on application by a psychiatrist (s 41 (2)). If a seven day extension is granted, the treating doctors determine whether the person meets the criteria for further applications to the Tribunal for extended mental health orders authorising involuntary treatment, care or support. The further mental health orders may authorize detention including authorisation for involuntary treatment, care and support to be provided to the person where they ordinarily live and without restricting their access to the community other than the time required to comply with the order. (Psychiatric Treatment Order, Community Care Order, or Restriction Order).

The ACT Supreme Court has held that an order for involuntary detention should only be made when facts demonstrating the necessity for it have been established by clear and persuasive evidence and the person concerned has been given an opportunity to be heard (Burnett v Mental Health Tribunal (1997).

In addition to mental health orders, the ACAT and the Supreme Court may make other determinations or orders authorizing restricted involuntary treatment under the Mental Health (Treatment and Care) Act 1994 (ACT) for persons who are mentally ill.

For general information, you can call Mental Health on 1800 629 354.

Being a Subject in Medical Research

Assisting medical research is an altruistic act, but should not cause personal detriment to the volunteer. Before consenting to be part of a research project (often a randomised control trial), you should be fully informed of and understand the nature of what is proposed as well as the reasonably likely risks and those of particular concern to you. The doctors involved should declare any conflicts of interest (that is, any financial gain they may obtain from the research). You should be told what will happen to the information obtained and how your privacy will be protected. You should be given the option of leaving the research project at any stage without detriment to your ongoing medical care. These ethical principles of research are included in a variety of international and national guidelines including the international statement of research ethics known as the Declaration of Helsinki and those specific guidelines produced by the NHMRC.