Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Subject to this
section, in an AIDS related action against —
(a) the
Society or a hospital it is a defence that —
(i)
the Society or the hospital, as the case
requires —
(A) obtained from the donor of the relevant
blood within the prescribed period immediately preceding the donation of that
blood a donor declaration; and
(B) caused, before the relevant blood was
supplied to be administered to a person, or to be used in the preparation of a
blood product to be administered to a person, a sample of that blood to be
tested, using approved equipment and in accordance with an approved method,
for the presence of AIDS, and a certificate in an approved form purporting to
be signed or initialled by an approved person and stating that the result of
that test was negative was attached to the container in which the relevant
blood or blood product was contained;
and
(ii)
neither the Society nor the hospital, as the case
requires, nor any employee of, or person working without payment for, the
Society or the hospital nor any other person who took blood from a donor on
behalf of the Society or the hospital was guilty of any negligence or wilful
misconduct in respect of the taking, testing or certification of the relevant
blood or of the storage, preparation, processing, handling, supplying,
labelling or other documenting, or administering of that blood or of the
relevant blood product derived from that blood, as the case requires;
or
(b) an
employee or person referred to in paragraph (a)(ii) it is a defence that
that employee or person was not guilty of any negligence or wilful misconduct
in respect of the taking, testing or certification of the relevant blood or of
the storage, preparation, processing, handling, supplying, labelling or other
documenting, or administering of that blood or of the relevant blood product
derived from that blood, as the case requires.
(2)
Subsection (1) does not apply to or in relation to an AIDS related action
against —
(a) the
Society or a hospital if, after the Society or the hospital, as the case
requires, had taken blood to be supplied for the purposes of being
administered to a person or used in the preparation of a blood product to be
administered to a person, the Society or the hospital had reasonable grounds
for believing that —
(i)
a statement in the donor declaration made by the donor of
that blood might be false or misleading; or
(ii)
that blood or blood product might contain AIDS,
and the Society or the
hospital did not take all reasonable steps to ensure that that blood or blood
product was not administered to a person; or
(b) any
employee or person referred to in subsection (1)(a)(ii) if, after the
Society or the hospital concerned or that employee or person had taken blood
to be supplied for the purpose of being administered to a person or used in
the preparation of a blood product to be administered to a person, that
employee or person had reasonable grounds for believing
that —
(i)
a statement in the donor declaration made by the donor of
that blood might be false or misleading; or
(ii)
that blood or blood product might contain AIDS,
and that employee or
person did not —
(iii)
report those grounds to the Society or that hospital; and
(iv)
take all reasonable steps to ensure that that blood or
blood product was not administered to a person.
(3) Notwithstanding
anything in this section, if in the opinion of not less than 2 medical
practitioners —
(a) the
condition of a person was such that he was likely to die unless blood or blood
products was or were administered to him; and
(b) it
was not reasonably practicable in the circumstances to obtain all or any
of —
(i)
the blood required for administration to the person
referred to in paragraph (a) from blood in respect of which the testing
referred to in subsection (1)(a)(i)(B) had been carried out with a
negative result; or
(ii)
the blood products required for administration to the
person referred to in paragraph (a) from blood
products —
(A) to the containers or outer containers
of which were attached labels endorsed in accordance with
section 10(1)(c); or
(B) in respect of which the testing
referred to in subsection (1)(a)(i)(B) had been carried out with a
negative result,
the administration to
the person referred to in paragraph (a) of the blood or blood products to
the containers or outer containers of which were not attached labels endorsed
in accordance with section 10(1)(c) or in respect of which the testing
referred to in subsection (1)(a)(i)(B) had not been carried out, as the
case requires, does not by itself defeat a defence provided by
subsection (1).