District Health Board’s processes regarding informed consent for assisted reproductive procedure not unreasonable

Ombudsmen Act 1975
Related legislation:
Status of Children Amendment Act 1987
Legislation display text:
Ombudsmen Act 1975: Status of Children Amendment Act 1987
District Health Board
Dame Beverley Wakem
Case number(s):
Issue date:

Whether a District Health Board (DHB) failed to ensure the complainant received adequate professional advice before being required to sign a legal document surrendering substantial legal rights—whether that document was ‘informed consent’—Ombudsman concluded DHB had not acted unreasonably in this matter

The complainant claimed that in discussion with a DHB she was told to sign a consent form. The complainant advised that she had asked if she needed a solicitor to do so and was advised that she did not. The complainant noted that she was not given a copy of the consent form before or after it was signed and that she was not aware that by signing the consent form, she was surrendering certain legal rights. She advised that the statute cited on the consent form (the Status of Children Amendment Act 1987) was no longer in force, having been repealed in 2004. In the complainant’s opinion, the DHB had an obligation to ensure that her legal position was explained by a competent person, or that the DHB should have recommended she seek legal advice, notwithstanding that this did not become a requirement in the guidelines approved by the Advisory Committee on Assisted Reproductive Technology (ACART) until November 2008, some 5 months after consent for embryo donation was signed.

The Ombudsman concluded that the DHB’s processes to ensure that the complainant was fully informed of the implications of signing consent to the donation of her frozen embryos to another couple were reasonable. It was noted that there was a dispute in the facts between the agency and the complainant. In these circumstances, the Ombudsman could not make a finding as to which version of events is ‘right’ – this is a matter for a court to resolve. The Ombudsman’s role is to consider whether, on the basis of the established facts, the DHB appears to have acted reasonably and lawfully in its dealings with the complainant.

All the documentation was considered and the Ombudsman considered that the documentation made it clear, that the couple receiving the embryo are the legal parents of any child born to them as a result of the procedure and have the same parental rights as would have been the case had they been the genetic parents of the child. The documentation also established that any subsequent right of contact with the donors rests with the child (once he or she reaches maturity) rather than the donors. While the NECAHR guidelines require the report for the joint counselling session to confirm that ‘the expectations and plans of all parties regarding ongoing contact and information sharing’ has been ‘discussed and, in the professional assessment of the counsellors, [has] been adequately understood’, the Ombudsman could find nothing in the guidelines to suggest that such contact can be a condition of donation. It was also noted that the complainant had advised the DHB prior to signing the consent form, that she expressed pleasure at being able to help the recipient couple ‘create their family’, and that the complainant hoped there would be contact in the future. The Ombudsman advised that it seemed reasonable to infer from the complainant’s comments that she understood contact was a matter for the recipient couple to decide.

The Ombudsman noted that the current ACART ‘Guidelines on Embryo Donation for Reproductive Purposes’ require ECART to determine that ‘Donor(s) and recipient(s) have received independent legal advice’, and that ‘Legal reports indicate that the parties understand the legal issues associated with embryo donation’. It is also a matter of fact that these guidelines were under discussion by the Ethical Committee on Assisted Reproductive Technology (ECART) at the time the complainant consented to donate her embryos. However, as noted, it was not until 5 months later that the guidelines received final approval and were issued. The Ombudsman considered that in the meantime, agency staff were entitled to rely on the NECAHR guidelines, which did not require the provision of legal advice to prospective donors. The Ombudsman found that the consent form was worded in simple and unambiguous terms and, in her opinion, the DHB was reasonably entitled to expect that, as with any legal document, the complainant would have read it through carefully before signing it. In signing the consent form, the complainant acknowledged that under the Status of Children Amendment Act 1987, she ‘had no rights and incur no liabilities in respect of any children resulting from [y]our donation’. The Ombudsman agreed that it was unfortunate that the wording of the consent form had not been updated to show the correct legislation that was in force at the time. However, the Ombudsman could not see how this could affect the validity of the acknowledgement the complainant signed, as the replacement provisions (in the Status of Children Amendment Act 2004) appear identical in their effect.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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