INTERPRETATION (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Health (Mr Yeo Cheow Tong): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

This Bill seeks to amend the Interpretation Act (Chapter 1 of the 1997 Revised Edition) to provide criteria for determining when death occurs, and to make consequential amendments to the Human Organ Transplant Act (Chapter 131A of the 1988 Revised Edition) and the Medical (Therapy, Education and Research) Act (Chapter 175 of the 1985 Revised Edition).

Sir, traditionally, death is considered to have taken place when a person's heart beat and respiration cease. This is termed by the medical profession as "cardiac death". However, this concept of death can no longer be applied in every case nowadays because of advances in medical treatment and technology. In particular, resuscitative and life supportive technology has enabled a patient's heart beat and respiration to be maintained indefinitely, even when there is not the remotest possibility of the patient's brain ever functioning again. The result is a warm corpse with a beating heart.

For the last two to three decades, "brain death" has been accepted by the medical fraternity worldwide as a more precise determinant of death. The common law has accepted the concept of brain death. There is, however, no certainty in the common law on the criteria and tests to be applied before brain death can be certified. Therefore, when the Human Organ Transplant Act (HOTA) was enacted in 1987, death was defined according to the brain death criteria in the Act.

HOTA is currently the only legislation in Singapore which contains a definition of death. HOTA, however, has a limited scope of application. It is only applicable to non-Muslim Singaporeans, 21 to 60 years old, who had not objected to kidney donation and who died as a result of an accident. The brain death criteria as defined in HOTA have been applied for the past 10 years in Singapore and have gained public acceptance. It is therefore timely to legislate a definition of the criterion of death that would be applicable for all deaths. The main objective of this Bill is to provide a legal definition of death that would allow doctors to use either the cardiac death criteria or brain death criteria to determine when death occurs under any circumstances. This would allow for the determination of death to be made in a consistent fashion.

Let me briefly explain why there is a need to define precisely the time of death. Firstly, techniques have been developed for the prolonged maintenance of circulation, ventilation, alimentation, and excretion of the human body by artificial means. This makes possible the creation of a situation in which the bodily functions continue to operate while the brain is dead, and the person is for all purposes "dead".

Secondly, the increasing use of organs, such as kidney, liver and heart, for transplantation, requires an accurate and timely determination of when the donor has died so that the organs may be removed. In addition, numerous other legal and social considerations require a precise and definite decision that death has occurred. For example, the family of a brain dead person can be spared unnecessary anguish and financial burden if brain death is determined and the patient certified as legally dead.

Mr Speaker, Sir, I shall now highlight the major new provisions that are being introduced in this Bill.

Criteria for Determining Death

To provide for the criteria for determining death for all purposes, clause 2 inserts a new section 2A which states that a person has died when there has occurred either:

(a) irreversible cessation of circulation of blood and respiration in the body of a person (referred hereinafter as "cardiac death"); or

(b) total and irreversible cessation of all functions of the brain of a person (referred hereinafter as "brain death").

In about 95% of all cases, cardiac death precedes brain death and can be readily diagnosed without elaborate tests. As this is the simple means of certifying death, there is no need for a set of criteria to be prescribed by law. Only one doctor is necessary to certify cardiac death except where an organ is to be removed.

The determination of brain death on the other hand will be in accordance with the clinical criteria as prescribed in the regulations under the new section 2A. These criteria for the determination of brain death will be the same as those currently prescribed in the HOTA Regulations. These criteria are a refinement of the diagnostic criteria for establishing death which were unanimously adopted by the Royal Colleges and Faculties of the United Kingdom in 1976.

Because of the many criteria required for determining brain death and to ensure absolute certainty, all cases of brain death have to be certified in the prescribed form by two medical practitioners who possess prescribed postgraduate medical qualifications. Also, one of the two certifying doctors must not have been involved in the care or treatment of the person certified to be brain dead.

Additional Provisions in an Organ Donation Situation

There are additional provisions in the Interpretation Act where death is to be certified in a potential organ donor. This is to assure the family and the community that there are adequate safeguards to prevent untimely removal of the donor's organ. For deaths which result in the removal of organs for transplant purposes, two medical practitioners are required to certify the death in a prescribed form. The two doctors certifying cardiac or brain death should not have been involved in the care of the donor and in the selection of the proposed recipient. They should also not participate in the harvesting and transplant operations and after-care of the recipient. These requirements have been included to ensure independence of the determination of death and to guard against any conflict of interests.

Circumstances where Certification of Death would not be Possible

There are certain circumstances where it may not be possible to produce the corpse as physical evidence that a person has died. One example would be if a ship were to sink in such a manner as to make recovery of the bodies of the trapped crew not possible. These special circumstances have been addressed under existing laws. In order to avoid doubt, it is made clear that the new section 2A shall not affect the operation of section 110 of the Evidence Act which addresses the burden of proving that a person is alive who has not been heard of for seven years. It shall also not affect section 100 of the Women's Charter which addresses proceedings for decree nisi on presumption of death and divorce or any other written law relating to the presumption of death. It will also not prevent the certification or determination of death in a case where the body of a person is not found or recovered. Consequential Amendments

Sir, by having a definition of death for all purposes incorporated in the Interpretation Act, it will no longer be necessary to define death in any other legislation. The Bill proposes that the relevant section and subsection in HOTA will be repealed and deleted respectively. A minor change will be made to the Medical Therapy Act to ensure consistency with the Interpretation Act where determination of death is concerned.

Conclusion

Sir, doctors have been certifying death since time immemorial. The traditional common law definition of death is the cessation of circulatory and respiratory functions or cardiac death. We have had a decade of experience with the brain death definition since HOTA was implemented. The concept of brain death has gained general public acceptance. We should no longer limit the use of the brain death criteria as a definition of death just to organ donors under HOTA. The law must allow the doctors to certify death when a person's brain has ceased functioning totally and irreversibly, even though the heart is kept beating through artificial means. This will redress an anomalous situation created by medical science. When the Bill is passed it would allow for either brain death criteria or cardiac death criteria to be applied for all deaths including organ donors under HOTA and the Medical Therapy Act.

Sir, death is mentioned more than 1,200 times in the Singapore statutes, and yet it is only defined in HOTA. What is being proposed in this Bill is not a new way of determining death, but a legislative definition of death for all purposes which formalises what is the currently accepted medical practice. Even so, I propose to refer this Bill to a Select Committee to ensure that an opportunity be given for members of the public to express their views.

Sir, I beg to move.

Bill accordingly read a Second time.

Resolved,

That the Bill be committed to a Select Committee consisting of Mr Speaker as Chairman and seven Members to be nominated by the Committee of Selection. - [Mr Yeo Cheow Tong].