To the Editor: The National Health and Medical Research Council’s National statement on ethical conduct in research involving humans1 recognises that prisoners can participate in research, but categorises them as “persons in dependent or unequal relationships”. They have limited capacity to provide informed consent.

Responding to the high levels of transmission of bloodborne viruses in Australian prisons,2 the Australian Red Cross Blood Service excludes prisoners from donating blood and ex-prisoners are excluded for 12 months after they have been released from prison.3

The New South Wales Human Tissue Act 1983 is silent on whether prisoners can donate organs.

We report here the case of a prisoner organ donor, highlighting the administrative, legal and operational hurdles that needed to be overcome.

A 53-year-old male prisoner was a suitable living kidney donor for his first cousin. He provided consent willingly and without coercion.

At initial assessment, the prisoner’s classification required that he be escorted to hospital and that constant surveillance by prison officers be maintained — at a cost of $1000 per day, for at least 7 days. These costs would have been borne by the family. Furthermore, as Australian prisoners are ineligible for Medicare under the Australian Constitution, the donor, as an uninsured patient, and his family would have been required to pay for all pre-, peri- and postoperative care.

The donation was deferred for 14 months while these two administrative hurdles were overcome to permit the donation to proceed:

1. The Commissioner for the Department of Corrective Services gave approval for the prisoner to be reclassified to the lowest security classification, thus removing the need for surveillance while in hospital; and

2. A rarely used provision within the NSW Crimes (Administration of Sentences) Act 1999 was applied. Section 26(1) of the Act allows the Commissioner to issue a permit

This allowed the prisoner to be temporarily reinstated to receive Medicare entitlements.

The nephrectomy and transplantation were successfully performed. The donor returned to prison on the seventh postoperative day. The donor organ is functioning 4 months after the operation.

Prisoners have a right to participate in organ donor programs; however, their precarious position to provide informed consent needs to be protected.