Organ Donors and Related Matters Bill
As reported from the Health Committee
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Hon David Clark
Organ Donors and Related Matters Bill
The Parliament of New Zealand enacts as follows:
This Act is the Organ Donors and Related Matters Act 2019.
This Act comes into force on the earlier of—
a date appointed by the Governor-General by Order in Council; and
the date that is 2 years after the day on which
it receives the Royal assent.
Part 1 Amendments to Compensation for Live Organ Donors Act 2016
3 Amendments to Compensation for Live Organ Donors Act 2016
This Part amends the Compensation for Live Organ Donors Act 2016.
4 Section 4 amended (Interpretation)
In section 4, insert in their appropriate alphabetical order:
reduced hours, in relation to a qualifying donor, means the total hours of employment that the donor works over a week that are less than the donor’s usual hours
usual hours means
a qualifying donor’s average weekly hours of employment as at the application date
5 Section 9 amended (Who are qualifying donors)
After section 9(2), insert:
subsection (1)(b) and (c)
does not apply if the donor surgery is undertaken as part of an overseas organ exchange programme approved by regulations.
6 Section 10 amended (Qualifying donors entitled to earnings compensation for up to 12 weeks while recuperating)
In section 10(1)(b), replace
“his or her employment” with
“employment, or, if the donor returns to employment on reduced hours, the date that the donor resumes employment on usual hours”.
After section 10(4), insert:
Subsection (6) applies if, within the 12 weeks after the date of the donor surgery, the donor—
returns to employment on usual hours; and
is subsequently unable to continue working those hours because of the effects of the surgery; and
continues to work, but on reduced hours.
If this subsection applies, the Director-General must pay a qualifying donor earnings compensation for the period that the donor worked reduced hours within the 12 weeks after the date of the donor surgery.
7 Section 29 amended (Regulations)
In section 29(2), replace
“the recommendation” with
“a recommendation under subsection (1)”.
After section 29(2), insert:
The Governor-General may, by Order in Council made on the recommendation of the Minister of Health,
make regulations approving an overseas organ exchange programme.
making a recommendation under subsection (3), the Minister must be satisfied, for each overseas country participating in the programme, that—
the programme has been agreed between
2 or more central government agencies of the country; and
the country has ratified—
the United Nations Convention against Transnational Organized Crime; and
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.
8 Schedule 1 amended
In Schedule 1, after clause 5, insert:
Part 2 Provisions relating to Act as amended by Organ Donors and Related Matters Act 2019
Meaning of amendment Act in this Part
In this Part,—
amendment Act means the Organ Donors and Related Matters Act 2019
former section 10 means section 10 of this Act immediately before it was amended by the amendment Act
new section 10 means section 10 of this Act as amended by the amendment Act.
7 Application of new section 10 to previous qualifying donors
New section 10 applies to a person who,—
before the commencement
of the amendment Act, had received compensation under former section 10 as a qualifying donor; and
during the payment period,—
returned to employment on reduced hours; or
after returning to employment on usual hours, worked reduced hours because of the effects of the surgery.
The person may apply to the Director-General for additional compensation under new section 10 for the period during which the person worked those reduced hours.
9 Schedule 2 amended
In Schedule 2, clause 2(b), after
“clause 3”, insert
In Schedule 2, after clause 3, insert:
3A Discretion to decrease amount calculated
The Director-General may decrease the rate of earnings compensation for a qualifying donor if, during the payment period, the qualifying donor returns to employment on reduced hours.
In setting a rate under subclause (1), the Director-General must—
take into account the additional
income received by the qualifying donor as a result of the donor returning to employment on reduced hours; and
be satisfied that the qualifying donor’s
financial position is the same—
immediately before the start of the payment period; and
during the payment period; and
have regard to the evidence available of the donor’s earnings.
Amendment to New Zealand Public Health and Disability Act 2000
Amendment to New Zealand Public Health and Disability Act 2000
This Part amends the New Zealand Public Health and Disability Act 2000.
11 Section 55 amended (Functions of NZBS)
After section 55(1)(b), insert:
to provide oversight and clinical governance of the organ donation
and transplantation system and to manage any related or incidental matters, in accordance with its statement of intent (including the statement of forecast service performance) and (subject to section 65) any directions given under the Crown Entities Act 2004; and
13 March 2019
Introduction (Bill 117–1)
2 April 2019
First reading and referral to Health Committee
1 Ministry of Health, Increasing Deceased Organ Donation and Transplantation: A national strategy, June 2017.
The Health Committee has examined the Organ Donors and Related Matters Bill and recommends that it be passed with the amendments shown.
This is an omnibus bill that seeks to amend the Compensation for Live Donors Act 2016, the New Zealand Public Health and Disability Act 2000, and the Health Sector (Transfers) Act 1993. It aims to increase New Zealand’s organ donation and transplantation rates by enabling the implementation of a number of recommendations set out in the 2017 national strategy.1
The bill as introduced would create a national organ donation agency within an existing Crown entity. This national agency would oversee and lead the implementation of the strategy. It would have a role in:
raising the profile of organ donation
supporting clinical governance
co-ordinating donation and transplantation processes
providing advice and information.
This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.
The bill would amend the Compensation for Live Organ Donors Act 2016 in regards to earnings compensation for qualifying donors who are unable to work their usual hours as they recuperate from donor surgery.
As introduced, the bill would insert new subsections 5 and 6 in section 10 of the Act. These new subsections aim to encourage donors to transition to their usual hours of work by allowing compensation for lost earnings if they return to work at reduced hours.
We recommend amending the definition ofin clause 4 of the bill, which amends section 4 of the primary Act, to specify how a qualifying donor’s usual hours of work would be calculated. In the bill as introduced, this is defined as the average weekly hours of employment at the date of application. We consider that this is too vague and may not provide a fair representation of a donor’s usual hours.
We recommend including paragraphs (a) and (b) in the definition ofto specify that it would be defined as the donor’s hours per week as specified in their employment agreement. If this does not apply to the donor, for example if they are self-employed or a shareholder employee, then the donor’s usual hours would be calculated from the hours worked per week in the 12 weeks prior to the application date. We think this would provide a more fair and consistent approach to the calculation of a qualifying donor’s usual hours of work.
Compensation for overseas organ donors
Clause 5 of the bill would add subsection (3)(a) and (b) to section 9 of the Act. This would amend the Act to allow qualifying donors who donate through an approved overseas organ exchange programme to be eligible for earnings compensation under the Act. We believe the bill may inadvertently enable overseas-based donors to be eligible for earnings compensation when taking part in an overseas organ exchange programme.
We consider that the bill should ensure that overseas donors are not eligible for compensation under the Act if they already receive funding. We recommend including new section 9(3)(a) and (b) to ensure that overseas donors are not eligible for compensation if they are already eligible to receive earnings compensation from their own government.
Overseas organ donation programmes
We recommend including clause 9A in the bill to add a new Schedule 5 in the Act. New Schedule 5 would list the names and details of approved overseas organ exchange programmes.
We also recommend the addition of new section 29(3) in the Act, to set out what changes could be made to new Schedule 5 by an Order in Council issued by the Governor-General as recommended by the Minister of Health.
Australian and New Zealand Paired Kidney Exchange Program
We recommend including the Australian and New Zealand Paired Kidney Exchange Program (ANZKX) in new Schedule 5, as the programme has already commenced. We think this would be more practical than requiring a separate Order in Council to approve the ANZKX programme.
Compensation for ANZKX donors
Because the ANZKX programme has started, we recommend amending clause 2 to bring forward the commencement of Part 1 of the bill. This would allow for donors participating in the ANZKX programme to be eligible for compensation as soon as possible.
In addition, we recommend amending clause 8, which would insert new clauses 6 and 7 in Schedule 1 of the Act. Our amendment would insert a new clause 8 in Schedule 1. This would allow people who have donated under the ANZKX programme before the bill’s commencement to be eligible for compensation for loss of earnings.
New Zealand Blood and Organ Service
Part 2 of the bill would amend the New Zealand Public Health and Disability Act, with a consequential amendment to the Health Sector (Transfers) Act.
Clause 11 would expand the functions of the New Zealand Blood Service (NZBS) to include oversight and clinical governance of the organ donation and transplantation system.
We agree that the NZBS would be the most suitable Crown entity to take on functions as the national organ donation agency. However, because this would substantially change the functions of the NZBS, we consider that a change of name would be appropriate. We therefore recommend several amendments (new clauses 10A to 20) to establish a new statutory entity called the New Zealand Blood and Organ Service (NZBOS).
NZBOS would be responsible for the functions of the former NZBS. It would also be responsible for providing oversight and clinical governance of the organ donation system, and providing support to the transplantation system. Our proposed amendments include a number of minor changes to change references from NZBS to NZBOS.
The Organ Donors and Related Matters Bill was referred to the committee on 2 April 2019. The closing date for submissions was 16 May 2019. We received and considered 16 submissions from interested groups and individuals. We heard oral evidence from 5 submitters at hearings in Wellington.
We received advice from the Ministry of Health.
Louisa Wall (Chairperson)
Hon Maggie Barry (from 22 May 2019)
Dr Liz Craig
Hon Ruth Dyson (from 24 July 2019)
Dr Shane Reti
Hon Nicky Wagner (until 22 May 2019)
Angie Warren-Clark (until 24 July 2019)
Hon Michael Woodhouse