Anatomical Examinations Act 2006

Anatomical Examinations Act 2006

An Act to make provision for and in relation to anatomical examinations of the bodies of deceased persons, to ensure that such examinations are undertaken with due regard to the dignity of deceased persons and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Anatomical Examinations Act 2006 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

(1)  In this Act, unless the contrary intention appears –

anatomical examination means an examination of the body of a deceased person for the purpose of the study or practice of anatomy;

approved means approved by the Head of Faculty;

authorised officer means –

(a) the Secretary; and

(b) a person appointed under section 21 as an authorised officer;

body includes any part of a body;

consent form means –

(a) a form completed by a deceased person under section 6 before his or her death; or

(b) a form completed by a next of kin of a deceased person under section 7 ; or

(c) a form, completed under a corresponding law, that corresponds to a form referred to in paragraph (a) or (b) ;

corresponding law means a law of the Commonwealth, another State or a Territory that –

(a) corresponds to this Act; or

(b) is prescribed as being a corresponding law;

[Section 3 Subsection (1) amended by S.R. 2017, No. 5, Applied:22 Feb 2017]

[Section 3 Subsection (1) amended by S.R. 2017, No. 5, Applied:22 Feb 2017] Faculty means the Faculty of Health in the University of Tasmania;

general authorisation means an authorisation issued for a class of persons in accordance with section 10 ;

Head of Faculty means the person for the time being in charge of the Faculty;

individual authorisation means an authorisation issued to a natural person in accordance with section 9 ;

medical certificate of death means –

(a) a certificate given to the Registrar under section 35(3) of the Births, Deaths and Marriages Registration Act 1999 in respect of a deceased person; or

(b) a certificate that is issued under a law of the Commonwealth, another State or a Territory and corresponds to a certificate of the kind specified in paragraph (a) ;

next of kin, of a deceased person, means –

(a) if the deceased person, immediately before his or her death, was married or in a significant relationship within the meaning of the Relationships Act 2003 , the person who was then his or her spouse or partner in the significant relationship; or

(b) if a person referred to in paragraph (a) is unavailable, a son or daughter of the deceased person who has attained the age of 18 years; or

(c) if a person referred to in paragraph (a) or (b) is unavailable, a parent of the deceased person; or

(d) if a person referred to in paragraph (a) , (b) or (c) is unavailable, a brother or sister of the deceased person who has attained the age of 18 years; or

(e) if a person referred to in paragraph (a) , (b) , (c) or (d) is unavailable and the deceased person is an Aboriginal person within the meaning of the Aboriginal and Torres Strait Islander Commission Act 1989 of the Commonwealth, a person who is an appropriate person according to the customs and the tradition of the community or group that the deceased person belonged to; or

(f) if a person referred to in paragraph (a) , (b) , (c) , (d) or (e) is unavailable, the executor or administrator of the deceased person's estate;

register means the register kept by the Head of Faculty for the purposes of Part 4 ;

Registrar means the Registrar of Births, Deaths and Marriages appointed or employed under section 4 of the Births, Deaths and Marriages Registration Act 1999 ;

regulations means regulations made and in force under this Act;

Secretary means the Secretary of the Department;

transferred body means the body of a deceased person that has been transferred to the Head of Faculty in accordance with a provision of a corresponding law that corresponds to section 14 ;

undertake, in relation to an anatomical examination, includes –

(a) observe the anatomical examination; and

(b) participate in the anatomical examination.

(2)  For the purposes of the definition of next of kin in subsection (1) , a person is taken to be unavailable if the person –

(a) cannot be contacted; or

(b) has declined to act as next of kin; or

(c) is unable to perform adequately or competently the duties of a next of kin.

4.   Delegation by Head of Faculty

The Head of Faculty may delegate any of his or her powers or functions under this Act, other than this power of delegation.

5.   Deceased persons to be treated with dignity

In the undertaking of an anatomical examination under this Act, regard is to be had to the dignity of the deceased person.

PART 2 - Consent to Anatomical Examinations

6.   Personal consents

(1)  A person may consent to his or her body being anatomically examined after his or her death.

(2)  The consent must be –

(a) in an approved form; and

(b) given to the Head of Faculty.

(3)  The person may, by oral or written notice given to the Head of Faculty, withdraw the consent at any time.

(4)  If the person withdraws the consent, the Head of Faculty is to give the person written acknowledgment of that withdrawal as soon as practicable after receiving the notice under subsection (3) .

(5)  The withdrawal of the consent, if given orally, is not effective until the acknowledgment is given.

7.   Consents of next of kin

(1)  A deceased person's next of kin may consent to the body of the deceased person being anatomically examined if the deceased person –

(a) during his or her lifetime, gave informal consent for the examination; and

(b) never withdrew that consent.

(2)  The consent of the next of kin must be –

(a) in the approved form; and

(b) accompanied by a copy of the deceased person's informal consent; and

(c) given to the Head of Faculty.

(3)  The Head of Faculty may request the next of kin to provide further evidence or information in relation to the consent.

(4)  If more than one next of kin is entitled to consent to the anatomical examination, each next of kin so entitled must give the consent jointly.

(5)  In this section –

informal consent means written consent other than in accordance with section 6(2) .

8.   Access to medical records

(1)  The Head of Faculty may request access to the medical records of any deceased person for whom the Head of Faculty holds a valid consent form.

(2)  The request may be made of any person who the Head of Faculty believes may hold medical records of the deceased person.

(3)  The request is authority for its recipient to provide the Head of Faculty with –

(a) access to the medical records of the deceased person; and

(b) if the request so stipulates, copies of the medical records of the deceased person.

(4)  It is the duty of the recipient of the request to comply with it as far and as soon as practicable.

(5)  If the Head of Faculty makes the request orally and it is complied with to any degree, the Head of Faculty is to confirm the request in writing as soon as practicable.

(6)  If the recipient of the request incurs costs in complying with it, the Head of Faculty is to reimburse the recipient for those costs to such extent as the Head of Faculty considers reasonable in the circumstances.

PART 3 - Authorisations

9.   Individual authorisations to undertake anatomical examinations

(1)  A natural person may apply to the Head of Faculty for authorisation to undertake an anatomical examination.

(2)  The application must be –

(a) in writing; and

(b) in an approved form; and

(c) supported by such evidence or information as the Head of Faculty requires; and

(d) accompanied by the prescribed fee, if any.

(3)  The prescribed fee is payable to, and may be retained by, the University of Tasmania.

(4)  On receiving the application, the Head of Faculty may issue the individual authorisation if satisfied that –

(a) the applicant has appropriate qualifications to undertake the anatomical examination; and

(b) the applicant has a valid reason for wanting to undertake the anatomical examination; and

(c) the anatomical examination will be undertaken with proper regard to the requirements of section 5 .

(5)  The individual authorisation is to be issued on –

(a) the prescribed conditions, if any; and

(b) such other conditions as the Head of Faculty thinks fit.

(6)  The individual authorisation –

(a) is to be in writing; and

(b) is to specify the conditions of the authorisation, if any; and

(c) takes effect on –

(i) the day on which the authorisation is issued; or

(ii) such later day as may be specified in the authorisation; and

(d) has effect –

(i) for such period not exceeding 12 months as is specified in the authorisation; or

(ii) if no period is specified in the authorisation, for a period of 12 months commencing on the day on which the authorisation takes effect.

(7)  If a person is aggrieved by refusal of the Head of Faculty to issue to the person an individual authorisation, he or she may apply to the Magistrates Court (Administrative Appeals Division) for a review of that decision.

10.   General authorisations to undertake anatomical examinations

(1)  The Head of Faculty may issue a general authorisation for persons of a particular class to undertake anatomical examinations for a purpose specified in the authorisation.

(2)  The general authorisation is to be issued on –

(a) the prescribed conditions, if any; and

(b) such other conditions as the Head of Faculty thinks fit.

(3)  The general authorisation –

(a) is to be in writing; and

(b) is to specify the conditions of the authorisation, if any; and

(c) takes effect on –

(i) the day on which the authorisation is issued; or

(ii) such later day as may be specified in the authorisation; and

(d) has effect –

(i) for such period as is specified in the authorisation; or

(ii) if no period is specified in the authorisation, until it is revoked by the Head of Faculty.

11.   Amendment and revocation of individual authorisations

(1)  The Head of Faculty may amend or revoke an individual authorisation at any time.

(2)  The amendment or revocation is to be effected by means of a notice given to the holder of the individual authorisation.

(3)  The notice –

(a) is to be in writing; and

(b) takes effect on –

(i) the day on which it is given; or

(ii) such later day as is specified in the notice; and

(c) is to advise of the right of review under subsection (5) .

(4)  If the notice is to effect an amendment of the individual authorisation, the amendment may involve all or any of the following:

(a) the placement of a new condition on the authorisation;

(b) the alteration of an existing condition of the authorisation;

(c) the omission of an existing condition from the authorisation.

(5)  If the holder of the individual authorisation is aggrieved by the decision to amend or revoke the authorisation, he or she may apply to the Magistrates Court (Administrative Appeals Division) for a review of that decision.

12.   Amendment and revocation of general authorisations

(1)  The Head of Faculty may, by instrument in writing, amend or revoke a general authorisation at any time.

(2)  The amendment or revocation takes effect on –

(a) the day on which the instrument is executed; or

(b) such later day as is specified in the instrument.

(3)  If the instrument is to effect an amendment of the general authorisation, the amendment may involve all or any of the following:

(a) the placement of a new condition on the authorisation;

(b) the alteration of an existing condition of the authorisation;

(c) the omission of an existing condition from the authorisation.

13.   Record of authorisations

(1)  The Head of Faculty is to keep a record of each individual authorisation and general authorisation issued under this Part, and of the amendment or revocation of any such authorisation.

(2)  On payment of the prescribed fee, if any, a person may –

(a) inspect a record kept under subsection (1) relating to a general authorisation; or

(b) obtain a copy of, or extract from, a record relating to a general authorisation.

(3)  The Head of Faculty may waive all or part of a prescribed fee under this section.

(4)  A prescribed fee under this section is payable to, and may be retained by, the University of Tasmania.

PART 4 - Undertaking Anatomical Examinations

14.   Acceptance of bodies for anatomical examination

(1)  The Head of Faculty may accept, for anatomical examination, a body of a deceased person for which there is a valid consent form.

(2)  The Head of Faculty accepts the body of a deceased person for anatomical examination by –

(a) entering prescribed particulars about the deceased person in a register that the Head of Faculty keeps for the purpose; and

(b) filing in the register one copy of the medical certificate of death for the deceased person.

(3)  The Head of Faculty must not accept the body of a deceased person for anatomical examination unless –

(a) the Head of Faculty holds, or receives together with the body –

(i) the consent form for the deceased person; and

(ii) a copy of the medical certificate of death for the deceased person; and

(b) in the case of a transferred body, evidence that the deceased person's death has been registered in the jurisdiction in which he or she died.

(4)  After accepting the body of a deceased person under this section, the Head of Faculty may request a certified copy of the medical certificate of death from the Registrar.

15.   Duty of Head of Faculty to register certain deaths

(1)  This section applies if –

(a) the Head of Faculty accepts the body of a deceased person under section 14 ; and

(b) the deceased person's death has not been registered under the Births, Deaths and Marriages Registration Act 1999 or under a law of the Commonwealth, another State or a Territory corresponding to that Act.

(2)  As soon as practicable after accepting the body, the Head of Faculty must register the death of the deceased person in accordance with the Births, Deaths and Marriages Registration Act 1999 .

Penalty:  Fine not exceeding 10 penalty units.

16.   Release or provision of bodies

(1)  After accepting the body of a deceased person under section 14 , the Head of Faculty may –

(a) release it to the holder of an individual authorisation for the purpose of anatomical examination; or

(b) provide it for anatomical examination conducted pursuant to a general authorisation.

(2)  The release of the body under subsection (1) does not relieve the Head of Faculty of his or her duties under this Act, or under any other Act, in respect of the body.

17.   Return of bodies

The holder of the individual authorisation to whom the body is released under section 16 must return it to the Head of Faculty as soon as practicable after the earlier of the following events:

(a) the anatomical examination for which the individual authorisation has been issued is completed;

(b) the individual authorisation ceases to have effect.

Penalty:  Fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding 1 penalty unit for each day during which the offence continues.

18.   Transfer of bodies

(1)  The Head of Faculty may transfer a body of a deceased person that has been accepted under section 14 to a person who is in charge of anatomical examinations at any place outside Tasmania if the Head of Faculty is satisfied that –

(a) the person is authorised by a corresponding law to accept the body; and

(b) the transfer would not be contrary to the wishes of the deceased person or the deceased person's next of kin.

(2)  On transferring the body, the Head of Faculty must ensure that the transferee is provided with –

(a) a copy of the relevant consent form; and

(b) a copy of the relevant medical certificate of death; and

(c) evidence that the death of the deceased person has been registered in Tasmania; and

(d) a copy of the entry in the register for the deceased person; and

(e) such other evidence or information as may be prescribed.

(3)  After transferring the body, the Head of Faculty must enter the following particulars in the register:

(a) the fact that the body has been transferred;

(b) the name and address of the person to whom the body has been transferred;

(c) the date of the transfer;

(d) such other particulars as may be prescribed.

(4)  Once the transfer of the body has been completed and subsection (3) has been complied with, the Head of Faculty is relieved of his or her duties under this Act, and under all other Acts, in respect of the body.

(5)  For the purposes of this section, the transfer of the body is completed once the transferee has physical possession of the body.

PART 5 - Retention and Disposal of Bodies

19.   Period that body may be retained for anatomical examination

(1)  A body of a deceased person that has been accepted for anatomical examination under section 14 may be retained for –

(a) if the consent form does not indicate a period, 5 years after the day on which the Head of Faculty accepts the body; or

(b) if the consent form indicates a specific period, that specific period; or

(c) if the consent form indicates an indefinite period, an indefinite period.

(2)  A period referred to in subsection (1)(a) or (b) may be extended either for a fixed or indefinite period, if –

(a) the Head of Faculty and the next of kin of the deceased person, by instrument in writing, jointly consent to the extension; or

(b) the Secretary, by instrument in writing, consents to the extension.

(3)  However, the Secretary may only consent under subsection (2)(b) if, after making reasonable inquiries, he or she is satisfied that –

(a) the deceased person had no next of kin; or

(b) a next of kin of the deceased person cannot be found.

(4)  If the period for which a body may be retained is extended under subsection (2) , the Head of Faculty is to enter particulars of the extension in the register.

20.   Burial or cremation

(1)  The next of kin of a deceased person whose body has been accepted for anatomical examination under section 14 may request that, once it is no longer required for that purpose, it be released to a prescribed business for burial or cremation in accordance with the Burial and Cremation Act 2002 .

(2)  A request under subsection (1) is to be –

(a) made in writing; and

(b) given to the Head of Faculty.

(3)  The Head of Faculty may request the next of kin to provide further evidence or information in relation to a request under subsection (1) .

(4)  Once a body that has been accepted for anatomical examination under section 14 is no longer required for that purpose, the Head of Faculty must ensure that –

(a) if a request under subsection (1) has been made, the body is released for burial or cremation in accordance with that request; or

(b) if a request under subsection (1) has not been made, the body is buried or cremated in accordance with the regulations, if any, and the Burial and Cremation Act 2002 .

Penalty:  Fine not exceeding 10 penalty units.

(5)  For the purposes of this section, a body is taken to be no longer required for anatomical examination when –

(a) in the case of retention for a fixed period –

(i) the fixed period expires; or

(ii) the Head of Faculty sooner determines that the body is no longer required for anatomical examination; or

(b) in the case of retention for an indefinite period, the Head of Faculty determines that the body is no longer required for anatomical examination.

(6)  Once a body has been released under this section, the Head of Faculty is to enter prescribed particulars of the release, if any, in the register.

(7)  In this section –

prescribed business has the same meaning as in the Burial and Cremation Act 2002 .

PART 6 - Authorised Officers

21.   Authorised officers

The Secretary may appoint a State Service officer or State Service employee to be an authorised officer for the purpose of this Act and that officer or employee may hold that office in conjunction with State Service employment.

22.   Powers and duties of authorised officers

(1)  An authorised officer may do any or all of the following:

(a) at any time, without advance notice to the Head of Faculty, visit and inspect any part of the Faculty where bodies of deceased persons are held, anatomical examinations are undertaken or records relating to anatomical examinations are kept;

(b) during any visit to, or inspection of, the Faculty –

(i) search for, examine, take possession of, make copies of or take extracts from any document that may be held by the Faculty; and

(ii) require any person who apparently is in charge of, or employed at, the Faculty to open any container; and

(iii) require any person who apparently is in charge of, or employed at, the Faculty to answer any question; and

(iv) take notes, photographs, films, audio recordings or video recordings;

(c) at any time, request that a document, copies of a document or extracts of a document that may be held by, or at, the Faculty be delivered to an authorised officer as specified in the request.

(2)  An authorised officer may, at any time –

(a) in accordance with the Births, Deaths and Marriages Registration Act 1999 , access, without charge, any document given to the Registrar for the purposes of this Act; and

(b) request that the Registrar answer any question that the authorised officer considers relevant to the administration of this Act.

(3)  The authorised officer is to notify the Secretary of any contravention of the Act, or possible contravention of the Act, as soon as practicable after the authorised officer becomes aware of the contravention or possible contravention.

PART 7 - Miscellaneous

23.   Offences

(1)  A person must not undertake an anatomical examination unless –

(a) the person holds an individual authorisation and the body being anatomically examined has been released to the person by the Head of Faculty in accordance with this Act; or

(b) the person belongs to a class of persons for whom a general authorisation is in effect and the body being anatomically examined has been provided by the Head of Faculty in accordance with this Act.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 6 months, or both.

(2)  A person who is authorised to undertake an anatomical examination under section 9 or 10 must comply with the conditions, if any, of the authorisation.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a term not exceeding one month, or both.

24.   Service of notices and other documents

A notice or other document is effectively given to or served on a person under this Act if –

(a) in the case of a natural person, it is –

(i) handed to the person; or

(ii) left at, or sent by post to, the person's postal or residential address or place of business or employment last known to the giver or server of the notice or document; or

(iii) faxed to the person's fax number; or

(iv) emailed to the person's email address; and

(b) in the case of any other person, it is –

(i) left at, or sent by post to, the person's principal or registered office or principal place of business; or

(ii) faxed to the person's fax number; or

(iii) emailed to the person's email address.

25.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) provide for fees and charges payable in respect of any matter under this Act; and

(b) prescribe the conditions of individual authorisations and general authorisations; and

(c) provide for other matters relating to an authorisation or consent given under this Act; and

(d) prescribe what is to be included in the register and any other records or documents to be kept or maintained under this Act; and

(e) provide how the register and any other records, or documents, required under this Act are to be kept and maintained; and

(f) provide for other matters relating to the burial or cremation of a body of a deceased person that was accepted for anatomical examination under this Act; and

(g) provide for other matters relating to the handling, treatment, storage or transportation of a body of a deceased person; and

(h) prescribe any further powers or obligations of authorised officers in relation to this Act.

(3)  The regulations may be made so as to apply differently according to such factors as are specified in the regulations.

(4)  The regulations may adopt, either wholly or in part and with or without modification, and either specifically or by reference, any standards, rules, codes or specifications whether or not the standards, rules, codes or specifications are published or issued before or after the commencement of this Act.

(5)  A reference in subsection (4) to standards, rules, codes or specifications includes a reference to an amendment of those standards, rules, codes or specifications, whether the amendment is published or issued before or after the commencement of this Act.

26.   Amendment of Act

(1)  If the Faculty of Health Science in the University of Tasmania changes its name, the Governor, by order, may omit the definition of Faculty in section 3(1) and substitute a definition containing the Faculty's new name.

(2)  If the Faculty of Health Science in the University of Tasmania ceases to be the body responsible for anatomical examinations in this State, the Governor, by order, may –

(a) omit the definition of Faculty in section 3(1) and substitute a definition containing the name of the body that has assumed responsibility for anatomical examinations in this State; and

(b) if necessary, consequentially amend or substitute the definition of Head of Faculty in section 3(1) ; and

(c) if necessary, consequentially amend any other provision of this Act, including this section.

(3)  An order under this section is a statutory rule for the purposes of the Rules Publication Act 1953 .

27.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Health and Human Services; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Health and Human Services.

28.   Savings and transitionals

The savings and transitional provisions set out in Schedule 1 have effect.

29.   

See Schedule 2 .

30.   

See Schedule 3 .

SCHEDULE 1 - Savings and Transitionals

Section 28

1.   Interpretation

In this Schedule –

commencement day means the day on which this Act commences;

consent under the former Act, in relation to an anatomical examination, means –

(a) a request under section 9(1)(a) of the former Act for an anatomical examination to be made; and

(b) a nomination under section 9(1)(b) of the former Act for a specific person to make an anatomical examination; and

(c) an authorisation under section 9(2) of the former Act of a person to make an anatomical examination;

former Act means the Anatomy Act 1964 as in force immediately before the commencement day;

school of anatomy means a school that, immediately before the commencement day, was an authorized school of anatomy under the former Act;

written consent under the former Act, in relation to an anatomical examination, means –

(a) a written request under section 9(1)(a) of the former Act for an anatomical examination to be made; and

(b) a written nomination under section 9(1)(b) of the former Act for a specific person to make an anatomical examination.

2.   Certain authorisations, &c., cease to have effect

The following matters under the former Act cease to have effect on the commencement day:

(a) a declaration of a person as a chief executive officer in accordance with the definition of "chief executive officer" in section 3 of the former Act;

(b) an authority issued for a school of anatomy under section 5 of the former Act;

(c) a licence granted under section 6 of the former Act;

(d) an appointment as an inspector under section 7 of the former Act;

(e) a request under section 11 of the former Act for the performance of a post-mortem examination.

3.   Consent to anatomical examination under former Act

(1) A body of a deceased person that was the subject of a consent under the former Act immediately before the commencement day is taken to have been accepted for anatomical examination under section 14 of this Act, and that acceptance is taken to have occurred when the body was received by a school of anatomy for anatomical examination under the former Act.

(2) A body that, by virtue of subclause (1) , is taken to have been accepted for anatomical examination under section 14 of this Act may be retained for –

(a) the period that was specified when the consent under the former Act was given; or

(b) if no such period was specified, a period not exceeding 30 months after the day on which the body is taken to have been accepted by virtue of subclause (1) .

(3) The period for which a body may be retained under subclause (2) may be extended under section 19(2) of this Act as if that period were a fixed period.

4.   Written consent to be consent form

A written consent under the former Act that had not been revoked immediately before the commencement day is taken to be a valid consent form for the purposes of this Act.

SCHEDULE 2 - Consequential Amendments

The amendments effected by Section 29 and this Schedule have been incorporated into authorised versions of the following Acts:

(a) Anatomy Act 1964 ;

(b) Burial and Cremation Act 2002 ;

(c) Human Tissue Act 1985 .

SCHEDULE 3 - Legislation repealed

The amendments effected by Section 30 and this Schedule have been incorporated into the authorised version of the Anatomy Act 1964 .