Human Transplantation and Anatomy (Jersey) Law 2018
A LAW to make provision concerning the
storage, removal and use of the body, or relevant material from, the body of a
deceased person for transplantation, teaching of anatomy, medical education or
research and therapeutic purposes, and for related matters.
Commencement
[see endnotes]
1 Interpretation
(1) In this Law unless the
context otherwise requires –
“embryo” means a live human embryo where fertilisation
is complete, and references to an embryo include an egg in the process of
fertilisation, and, for this purpose, fertilisation is not complete until the
appearance of a 2 cell zygote;
“excepted person” has the meaning given by Article 5(3);
“excluded material” means relevant material of a type
specified to be excluded material by an Order made by the Minister under
Article 7(1);
“express consent” has the meaning given –
(a) in
the case of an adult, by Article 4(4);
(b) in
the case of an excepted person, by Article 5(5);
(c) in
the case of a young person, by Article 6(3); or
(d) in
the case of a specified activity involving the removal of excluded material, by
Article 7(3) or (4);
“gametes” means live human gametes, but do not include
eggs in the process of fertilization;
“adult” means a person who is 18 years of age or
over;
“Minister” means the Minister for Health and Social
Services;
“parental responsibility” has the meaning given by
Article 1(1) of the Children (Jersey) Law 2002;
“prescribed” means prescribed by Order made by the
Minister;
“registered medical practitioner” has the meaning given
by Article 1(1) of the Medical Practitioners (Registration) (Jersey)
Law 1960;
“relevant material” means material, other than gametes,
which consist of or includes human cells but does not include embryos outside
the human body or hair and nail from the body of a living person;
“specified activity” has the meaning given by Article 2(2);
“transplantation activity” has the meaning given by
Article 2(1);
“young person” means a person who is under 18 years
of age.
(2) For the purposes of
this Law –
(a) a
young person is competent to deal with the issue of consent if the young person
is 16 years of age or over and it would appear to a reasonable person that
the young person has sufficient understanding to make an informed decision on
that issue; and
(b) a
young person is not competent to deal with the issue of consent if the young
person is under 16 years of age.
(3) For the purposes of
this Law, the following are qualifying relationships –
(a) spouse,
civil partner or cohabiting partner;
(b) parent
or child;
(c) brother
or sister;
(d) grandparent
or grandchild;
(e) child
of a brother or sister;
(f) stepfather
or stepmother;
(g) half-brother
or half-sister;
(h) in
the case of a person in respect of whom a care order is made under Article 24(1)(a)
of the Children (Jersey)
Law 2002, the Minister; or
(i) friend
of long standing.
(4) In this Law, a
reference to transplantation is to transplantation to a human body and includes
transfusion.
(5) For the purposes of
this Law, material is not to be regarded as from a human body if it is created
outside the human body.
(6) For the purposes of
this Law –
(a) references
to material from the body of a living person are to material from the body of a
person who is alive at the point of separation of the material;
(b) references
to material from the body of a deceased person are to material from the body of
a person who is not alive at the point of separation of the material.
(7) For the purposes of
this Law, a person is a cohabiting partner of another person if those
2 persons are living together as if they were spouses or civil partners
for a continuous period of 6 months and neither of them are married to, or
in a civil partnership, with any other person.
2 Transplantation
activity and other specified activity
(1) In this Law “transplantation
activity” means –
(a) storing
the body of a deceased person for the purpose of transplantation;
(b) carrying
out tests and investigations to determine whether relevant material is suitable
for the purpose of transplantation;
(c) removing
from the body of a deceased person, for the purpose of transplantation, any
relevant material of which the body consists or which it contains;
(d) storing
for the purpose of transplantation any relevant material which has come from the
body of a deceased person; or
(e) using
for the purpose of transplantation any relevant material which has come from the
body of a deceased person.
(2) In
this Law “specified activity” means –
(a) any
transplantation activity;
(b) the
removal of the body of a deceased person for use in –
(i) the teaching of
anatomy,
(ii) medical
education or research,
(iii) therapeutic
purposes; or
(c) any
other activity specified in Regulations made by the States.
3 Authorisation
of specified activities
(1) Subject to paragraph (2)
and Article 10, a person may carry on a specified activity if carried out
in Jersey –
(a) with
express consent in accordance with Article 4, 5, 6 or 7, as the case may
be; or
(b) otherwise
with consent deemed to be given in accordance with Article 4 or 9.
(2) A transplantation
activity within Article 2(1)(d) or (e) shall be lawful without the need
for consent if it is carried out in Jersey and –
(a) the
relevant material has been lawfully imported into Jersey; or
(b) the
removal of the relevant material from the person’s body took place
lawfully outside Jersey.
4 Consent –
adults
(1) This Article does not
apply in relation to consent for a specified activity involving the removal of
excluded material.
(2) Consent is deemed to be
given for a specified activity involving the body, or relevant material from
the body, of an adult who is not an excepted person unless –
(a) a
decision of the adult not to consent to the specified activity was in force
immediately before his or her death;
(b) the
case is one for which express consent is required in accordance with paragraph (3);
or
(c) the
case is not one for which express consent is required in accordance with
paragraph (3) and –
(i) a person who
stood in a qualifying relation to the deceased person objects to the specified
activity on the basis of views held by the deceased, and
(ii) a
reasonable person would conclude that the person who stood in a qualifying
relationship to the deceased person knows that the view most recently held by
the deceased person before his or her death on consent for transplantation
activities was that the deceased person opposed consent being given.
(3) Express consent is
required for a specified activity involving the body, or relevant material from
the body, of an adult who is not an excepted person in each case mentioned in
the first column of Table 1 in paragraph (4).
(4) For each case mentioned
in the first column of the following Table 1, the meaning of express
consent in relation to a specified activity involving the body, or relevant
material from the body, of an adult who is not an excepted person is as
provided in the second column of that table –
TABLE 1
|
Case
|
Meaning of express consent
|
|
1.
|
The adult is alive.
|
The adult’s consent.
|
|
2.
|
The adult has died and a decision of the adult as to consent, to
the specified activity was in force immediately before his or her death.
|
The adult’s consent.
|
|
3.
|
The adult has died, case 2 does not apply and the adult had
appointed one or more persons under Article 8 to deal with the issue of
consent in relation to the specified activity and such a person is available
to give consent under the appointment.
|
Consent of the person or persons appointed.
|
|
4.
|
The adult has died, case 2 does not apply and the adult had
appointed one or more persons to deal with the issue of consent in relation
to the specified activity, but no such person is available to give consent
under the appointment.
|
Consent of a person who stood in a qualifying relationship to the
adult immediately before death.
|
5 Consent –
excepted persons
(1) This Article does not
apply in relation to consent for a specified activity involving removal of
excluded material.
(2) Express consent is
required for a specified activity involving the body, or relevant material from
the body, of an excepted person.
(3) An excepted person
is –
(a) an
adult who has died and who had not been ordinarily resident in Jersey for a
period of at least 12 months immediately before dying; or
(b) an
adult who has died and for a significant period before dying lacked capacity to
understand the notion that consent to a specified activity can be deemed to
have been given.
(4) For the purpose of
paragraph (3), “significant period” means a sufficiently long
period as to lead a reasonable person to conclude that it would be
inappropriate for consent to be given.
(5) For each case mentioned
in the first column of the following Table 2, the meaning of express
consent in relation to a specified activity involving the body, or relevant
material from the body, of an excepted person is as provided in the second
column of that table –
TABLE 2
|
Case
|
Meaning of express consent
|
|
1.
|
A decision of the excepted person as to consent to the specified
activity was in force immediately before the excepted person’s death.
|
The excepted person’s consent.
|
|
2.
|
Case 1 does not apply and the excepted person had appointed
one or more persons under Article 8 to deal with the issue of consent in
relation to the specified activity and such a person is available to give
consent under the appointment.
|
Consent of the person or persons appointed.
|
|
3.
|
Case 1 does not apply and the excepted person had appointed
one or more person under Article 8 to deal with the issue of consent in
relation to the specified activity, but no such person is available to give
consent under the appointment.
|
Consent of a person who stood in a qualifying relationship to the
excepted person immediately before death.
|
|
4.
|
Cases 1, 2 and 3 do not apply in relation to the excepted person.
|
Consent of a person who stood in a qualifying relationship to the
excepted person immediately before death.
|
6 Consent –
young persons
(1) This Article does not
apply in relation to consent for a specified activity involving the removal of
excluded material.
(2) Express consent is
required for a specified activity involving the body, or relevant material from
the body, of a young person.
(3) For each case mentioned
in the first column of the following Table 3, the meaning of express
consent in relation to a specified activity involving the body, or relevant material
from the body, of a young person is as provided in the second column of that
table –
TABLE 3
|
Case
|
Meaning of express consent
|
|
1.
|
The young person is alive and case 2 does not apply.
|
The young person’s consent.
|
|
2.
|
The young person is alive and no decision of the young person as to
consent to the specified activity is in force, and either the young person is
not competent to deal with the issue of consent or is competent to deal with
the issue but fails to do so.
|
Consent of a person who has parental responsibility for the young
person.
|
|
3.
|
The young person has died and a decision of the person as to
consent to the specified activity was in force immediately before the young
person’s death.
|
The consent of the young person.
|
|
4.
|
The young person has died, case 3 does not apply, the young
person had appointed one or more persons under Article 8 to deal with
the issue of consent in relation to the specified activity and such a person is
available to give consent under the appointment.
|
Consent of the person or persons appointed.
|
|
5.
|
The young person has died, case 3 does not apply and the
young person had appointed one or more persons under Article 8 to deal
with the issue of consent in relation to the specified activity, but no such
person is available to give consent under the appointment.
|
Consent of a person who has parental responsibility for the young
person immediately before the young person’s death, or where no such
person exists, the consent of a person in a qualifying relationship to the
young person at that time.
|
|
6.
|
The young person has died and cases 3, 4 and 5 do not apply in
relation to the young person.
|
Consent of a person who had parental responsibility for the young
person immediately before the young person died or where no such person exists,
the consent of a person in a qualifying relationship to the young person at
that time.
|
(4) In
this Article, a decision or appointment made by a young person is only valid
if, in accordance with Article 1(2), the young person was competent to
deal with the issue of consent when it was made.
7 Consent –
specified activities involving excluded material
(1) The Minister may by
Order specify relevant material that is excluded material for the purposes of
this Law.
(2) In the case of a
specified activity involving the removal of excluded material, express consent
is required, and such express consent must be specific to the removal of the
excluded material in question.
(3) For an adult, for each
case mentioned in the first column of the following Table 4, the meaning
of express consent in relation to a specified activity involving the removal of
excluded material is as provided in the second column of that
table –
TABLE 4
|
Case
|
Meaning of express consent
|
|
1.
|
The adult is alive.
|
The adult’s consent.
|
|
2.
|
The adult has died and a decision of the adult as to consent to
the specified activity was in force immediately before the adult’s
death.
|
The adult’s consent.
|
|
3.
|
The adult has died, case 2 does not apply, the adult had
appointed one or more persons under Article 8 to deal with the issue of
consent in relation to the specified activity, and such a person is available
to give consent under the appointment.
|
Consent of the person or persons appointed.
|
|
4.
|
The adult has died, case 2 does not apply and the adult had
appointed one or more persons under Article 8 to deal with the issue of
consent in relation to the specified activity, but no such person is available
to give consent under the appointment.
|
Consent of a person who stood in a qualifying relationship to the
adult immediately before the adult’s death.
|
|
5.
|
The adult has died and cases 1, 2, 3 and 4 do not apply in
relation to the adult.
|
Consent of a person who stood in a qualifying relationship to the
adult immediately before the adult’s death.
|
(4) For
a young person, for each case mentioned in the first column of the following
Table 5, the meaning of express consent in relation to a specified
activity involving the removal of excluded material is as provided in the
second column of that table –
TABLE 5
|
Case
|
Meaning of express consent
|
|
1.
|
The young person is alive and case 2 does not apply.
|
The young person’s consent.
|
|
2.
|
The young person is alive, no decision of the young person as to consent
to the specified activity is in force, and either the young person is not
competent to deal with the issue of consent or is competent to deal with the
issue but fails to do so.
|
Consent of a person who has parental responsibility for the young
person.
|
|
3.
|
The young person has died and a decision of the young person to as
to consent to the specified activity was in force immediately before the
young person’s death.
|
The young person’s consent.
|
|
4.
|
The young person has died, case 3 does not apply, the young
person had appointed one or more persons under Article 8 to deal with
the issue of consent in relation to the specified activity and such a person is
available to give consent under the appointment.
|
Consent of the person or persons appointed.
|
|
5.
|
The young person has died, case 3 does not apply and the
young person had appointed one or more persons under Article 8 to deal
with the issue of consent in relation to the specified activity, but no such
person is available to give consent under the appointment.
|
Consent of a person who has parental responsibility for the young
person immediately before the young person’s death, or where no such
person exists, the consent of a person in a qualifying relationship to the
young person at that time.
|
|
6.
|
The young person has died and of cases 3, 4, and 5 do not
apply in relation to the young person.
|
Consent of a person who had parental responsibility for the young
person immediately before the young person died or where no such person
exists, the consent of a person in a qualifying relationship to the young
person at that time.
|
(5) In
this Article, a decision or appointment made by a young person is only valid
if, in accordance with Article 1(2), the young person was competent to
deal with the issue of consent when it was made.
8 Appointed
persons
(1) A person may appoint
one or more persons to represent him or her after death in relation to express
consent for the purpose of this Law.
(2) An appointment under
this Article may be general or may limited to express consent in relation to
one or more specified activities as may be specified in the appointment.
(3) Subject to paragraph (4),
an appointment under paragraph (1) may be made orally or in writing.
(4) An oral appointment
under this Article is only valid if made in the presence of at least
2 witnesses present at the time the appointment is made.
(5) A written appointment
under this Article is only valid if –
(a) it is
signed by the person making it in the presence of at least one witness who
attests to the signature;
(b) it is
signed at the direction of the person making it, in his or her presence and in
the presence of at least one witness who attests to the signature; or
(c) it is
contained in the will of the person making it.
(6) Where a person appoints
2 or more persons in relation to the same specified activity, they are to be
regarded as appointed to act jointly and severally unless the appointment
provides that they are appointed to act jointly.
(7) An appointment under
this Article may be revoked at any time.
(8) Paragraphs (3),
(4), (5) and (6) apply to the revocation of an appointment under this Article
as they apply to making of such an appointment.
(9) A person appointed
under this Article may at any time renounce the appointment.
(10) A person may only act under
an appointment under this Article if the person –
(a) is an
adult; and
(b) is
not of a description prescribed.[1]
(11) For the purposes of Articles 4(4),
5(5), 6(3) and 7(3) or (4), if it is not reasonably practicable to communicate
with a person appointed under this Article, within the time available if consent
is to be acted upon, the person is to be treated as being not able to give
consent to an activity under the appointment.
(12) In this Article
“adult” means a person who is 18 years of age or older.
9 Activities
involving material from adults who lack capacity to consent
(1) This Article applies
where –
(a) a
transplantation activity under Article 2(1)(d) or (e) is carried out
involving relevant material from the body of a person who –
(i) is an adult, and
(ii) lacks
capacity to consent to the transplantation activity; and
(b) no
decision of the person to consent, or not to consent, to the transplantation
activity is in force.
(2) Where this Article
applies, the consent of the person referred to in paragraph (1) shall be
deemed to have been given if the transplantation activity is carried out in
circumstances of a kind specified in Regulations made under Article 18(3)(a).[2]
10 Other conditions
regarding removal and use of relevant material from the body or removal of a
body
(1) Subject to paragraph (3),
the removal and use of any relevant material from a body of a deceased person
for a specified activity shall not be effected except by –
(a) a
registered medical practitioner;
(b) a
person qualified for registration as a registered medical practitioner,
who must be satisfied by personal
examination of the body that life is extinct.
(2) In doing anything
permitted under paragraph (1), a person described in paragraph (1)(b)
does not thereby contravene Article 2 of the Medical Practitioners (Registration) (Jersey)
Law 1960.
(3) Where the removal of a body of a deceased person is for use in teaching of anatomy,
medical education or research, therapeutic purposes, no such removal shall be effected –
(a) until after the end of the period of 48 hours beginning with the
time of the person’s death;
(b) without a certificate of cause of death;
(c) without notice to the Medical Officer of Health;
(d) except
under the supervision of a registered medical practitioner, who must be
satisfied by personal examination of the body that life is extinct; and
(e) except
in a coffin or shell appropriate for such a removal,
and the person removing the body, or causing it to be removed, shall –
(i) make
arrangements for the body to be decently interred in consecrated ground or in
some public burial ground in use for persons of that religious persuasion to
which the person whose body was so removed belonged, or be to be cremated; and
(ii) transmit
a certificate of interment or cremation of such body to the Medical Officer of
Health within 2 years from the date of removal of the body.
(4) A person who
contravenes paragraphs (1) shall be guilty of an offence and liable to
imprisonment for a term of 2 years and to a fine.
(5) Subject to paragraph (6),
a person who contravenes paragraph (3) shall be guilty of an offence and
liable to a fine.
(6) Where a person removes the
body of a deceased person for use in the teaching of anatomy, for use in medical education or research or for
therapeutic purposes, the person shall not be guilty of an
offence if the person reasonably believes that 48 hours has passed since
the time of the person’s death.
11 Prohibition
of specified activity without consent
(1) Subject to paragraph (2),
a person who carries out specified activity in Jersey without consent shall be
guilty of an offence and liable to imprisonment for a term of 2 years and
to a fine.
(2) A person shall not be
guilty of an offence under paragraph (1) if the person reasonably believes
that –
(a) the
specified activity is carried out with consent; or
(b) the
activity carried out is not a specified activity.
(3) Subject to paragraph (4),
a person who makes a false or misleading representation to another person whom
he or she knows, or believes, intends to carry out a specified activity –
(a) that
there is a consent to the activity; or
(b) that
the activity is not a specified activity,
shall be guilty of an offence and liable to imprisonment for a term
of 2 years and to a fine.
(4) A person shall not be
guilty of an offence under paragraph (3), if the person did not know that
the representation was false or misleading or believed it to be true.
(5) No proceedings for an
offence under this Article may be instituted except by or with the consent of
the Attorney General.
12 Preservation
for transplantation
(1) Where relevant material
from the body of a deceased person lying in a hospital, nursing home or other
institution is or may be suitable for use for transplantation, the person
having the control or management of the institution may –
(a) take
steps for the purpose of preserving the body or relevant material from the body
for use for transplantation; and
(b) to
retain the body for purpose of paragraph (a).
(2) Paragraph (1)(a)
applies to permit only –
(a) the
taking of minimum steps necessary for the purpose mentioned in that
sub-paragraph; and
(b) the
use of the least invasive procedure.
(3) Paragraph (1)
ceases to apply once it has been established that express consent authorizing
the removal of relevant material from the body of the deceased has not been,
and will not be, given and that consent is not deemed to be given.
(4) An act done under
paragraph (1) shall be treated as being an activity to which Article 3
does not apply.
(5) In this Article “person having the control or management of the institution”
includes a person authorized by the person having management or control of the
institution to take the steps under paragraphs (1)(a) or to retain the
body under paragraph (1)(b).
13 Inquest
or post-mortem examination of a body by the Viscount
(1) Nothing in this Law
applies to anything done for the purposes of functions of the Viscount under
the Inquests and Post-Mortem Examinations (Jersey)
Law 1995.
(2) Where a person has
reason to believe that an inquest may be required to be held on a body or that
a post-mortem examination of a body may be required at the instance of the
Viscount, that person shall not, except with the consent of the
Viscount –
(a) give
consent under this Law in respect of the body; or
(b) act
on such consent given by any other person.
(3) A person who
contravenes paragraph (2) shall be guilty of an offence and liable to a
fine.
14 Other
lawful dealings with body
Nothing in this Law shall be construed as rendering unlawful any
dealing with the body, or with any part of the body, of a deceased person which
is lawful otherwise than under this Law.
15 False
or misleading information
(1) A person who makes, in
any document, material, evidence or information which is required to be
provided to any person entitled to the information under this Law, a statement
that –
(a) at
the time and in the light of the circumstances under which it is made, is false
or misleading with respect to any material fact; or
(b) omits
to state any material fact the omission of which makes the statement false or
misleading,
shall be guilty of an offence and liable to
a fine of level 3 on the standard scale.
(2) A person shall not be
guilty of an offence under paragraph (1) if the person did not know that
the statement was false or misleading or believed it to be true.
16 Criminal
liability of partners, directors and other officers
(1) Where an offence under
this Law committed by a limited liability partnership, a separate limited
partnership, any other partnership having separate legal personality or a body
corporate, is proved to have been committed with the consent or connivance of –
(a) a
person who is a partner of the partnership, or director, manager, secretary or
other similar officer of the body corporate; or
(b) any
person purporting to act in any such capacity,
the person is also guilty
of the offence and liable in the same manner as the partnership or body
corporate to the penalty provided for that offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
applies in relation to acts and defaults of a member in connection with the
member’s functions of management as if he or she were a director of the
body corporate.
17 Limitation
of liability
(1) A person
to whom this Article applies shall not be liable in damages for anything done
or omitted in the discharge or purported discharge of any function under, or
authorized by or under, this Law or any other enactment unless it is shown that
the act or omission was in bad faith or without due and reasonable care.
(2) This
Article applies to the States, any Minister or the Medical Officer of Health or any person who is acting as, an officer, employee
or agent in an administration of the States for which the Minister is assigned
responsibility.
(3) The limitation of
liability under this Article does not apply so as to prevent an award of
damages made in respect of an act on the ground that the act was unlawful as a
result of Article 7(1) of the Human Rights (Jersey) Law 2000.
18 Regulations
(1) The States shall by
Regulations make provision for the registration of express consent, or a
decision not to consent, to a specified activity.
(2) The States may by
Regulations make any provision as the States think fit for the purposes of
carrying this Law into effect.
(3) Without prejudice to
the generality of paragraph (2), Regulations made under this Article may –
(a) specify
circumstances in which a transplantation activity may be carried out for the
purpose of Article 9;
(b) provide
for the charging of fees for reports required under this Law or the Regulations
and for the amount of such fees;
(c) create
offences for contravention of the Regulations and specify penalties for such
offences not exceeding imprisonment for 2 years and a fine;
(d) make
such consequential, incidental, supplementary and transitional provisions as
may appear to be necessary or expedient, including provisions making amendments
to any other enactment as appear to the States to be expedient –
(i) for the general
purposes, or any particular purpose, of this Law,
(ii) in
consequence of any provision made by or under this Law, or
(iii) for
giving full effect to this Law or any provision of it.[3]
19 Orders
The Minister may by Order make provision prescribing any matter that
is to be prescribed under this Law.
20 Codes of practice
(1) The Minister may issue
codes of practice for the purposes of this Law and, in particular (but without
limitation) –
(a) for
the guidance of any person acting under this Law in connection with a
transplantation activity or other specified activity;
(b) with
respect to such other matters, arising out of this Law, as the Minister may
think fit.
(2) A person must have
regard to any relevant code of practice issued under paragraph (1) where
that person is acting under this Law.
(3) Paragraph (4)
applies where it appears to the Court or to the Tribunal, when conducting any
civil or criminal proceedings, that –
(a) a
provision of a code of practice issued under this Article; or
(b) a
failure to comply with a requirement of a code of practice issued under
paragraph (1),
is relevant to a question arising in those proceedings.
(4) Where this paragraph
applies, the relevant provision or failure must be taken into account in
determining the question, but a failure to comply with a code of practice
issued under paragraph (1) shall not of itself make a person liable to any
civil or criminal proceedings.
(5) The Minister may amend
a code of practice issued under paragraph (1) from time to time as the
Minister may see fit.
(6) A code of practice
issued under paragraph (1) may make, as respects any matter in relation to
which it makes provision –
(a) the same provision
for all cases, or different provision for different cases or classes of case,
or different provision for the same case or class of case for different
purposes; and
(b) any such provision
either unconditionally or subject to any specified conditions.
(7) Before issuing or
amending a code of practice issued under paragraph (1), the Minister must
consult such bodies as appear to the Minister to be concerned.
(8) The Minister must
publish any code of practice issued under paragraph (1) which is for the
time being in force in such manner as may appear to the Minister to be
appropriate for bringing it to the attention of persons likely to be concerned
with or affected by its provisions.
21 Rules
of Court
The power to make Rules
of Court under the Royal
Court (Jersey) Law 1948 shall include a power
to make Rules for the purposes of this Law.
22 [4]
23 Citation and commencement
This Law may be cited as
the Human Transplantation and Anatomy (Jersey) Law 2018 and shall come
into force on such day or days as the States may by Act appoint.