CHAPTER 215
OF THE
REVISED STATUTES, 1989
1 This Act may be cited as the Human Tissue Gift Act. R.S., c. 215, s. 1.
(a) "consent" means a consent given under this Act;
(b) "physician" means a qualified medical practitioner registered under the Medical Act;
(c) "tissue" includes an organ, but does not include any skin, bone, blood, blood constituent or other tissue that is replaceable by natural processes of repair;
(d) "transplant" means the removal of tissue from a human body, whether living or dead, and its implantation in a living human body;
(e) "writing" for the purposes of Part II includes a will and any other testamentary instrument, whether or not probate has been applied for or granted and whether or not the will or other testamentary instrument is valid. R.S., c. 215, s. 2.
3 A transplant from one living human body to another living human body may be done in accordance with this Act, but not otherwise. R.S., c. 215, s. 3.
(a) has attained the age of majority;
(b) is mentally competent to consent; and
(c) is able to make a free and informed decision,
may in a writing signed by him consent to the removal forthwith from his body of the tissue specified in the consent and its implantation in the body of another living person.
(2) Notwithstanding subsection (1), a consent given thereunder by a person, who had not attained the age of majority, was not mentally competent to consent or was not able to make a free and informed decision, is valid for the purposes of this Act if the person who acted upon it had no reason to believe that the person who gave it had not attained the age of majority, was not mentally competent to consent and was not able to make a free and informed decision, as the case may be.
(3) A consent given under this Section is full authority for any physician to
(a) make any examination necessary to assure medical acceptability of the tissue specified therein; and
(b) remove forthwith such tissue from the body of the person who gave the consent.
(4) If for any reason the tissue specified in the consent is not removed in the circumstances to which the consent relates, the consent is void. R.S., c. 215, s. 4.
5 (1) Any person who has attained the age of majority may consent
(a) in a writing signed by him at any time; or
(b) orally in the presence of at least two witnesses during his last illness,
that his body or the part of parts thereof specified in the consent be used after his death for therapeutic purposes, medical education or scientific research.
(2) Notwithstanding subsection (1), a consent given by a person who had not attained the age of majority is valid for the purposes of this Act if the person who acted upon it had no reason to believe that the person who gave it had not attained the age of majority.
(3) Upon the death of a person who has given a consent under this Section, the consent is binding and is full authority for the use of the body or the removal and use of the specified part or parts for the purpose specified, except that no person shall act upon a consent given under this Section if he has reason to believe that it was subsequently withdrawn. R.S., c. 215, s. 5.
6 (1) In subsection (2), "person lawfully in possession of the body" does not include
(a) the chief medical examiner or medical examiner in possession of the body for the purposes of the Fatality Investigations Act;
(b) the Public Trustee in possession of the body for the purpose of its burial under the Public Trustee Act;
(c) an embalmer or funeral director in possession of the body for the purpose of its burial, cremation or other disposition; or
(d) the superintendent of a crematorium in possession of the body for the purpose of its cremation.
(2) Where a person of any age, who has not given a consent under Section 5, dies or, in the opinion of a physician, is incapable of giving a consent by reason of injury or disease and his death is imminent,
(b) if none or if his spouse is not readily available, any one of his children who has attained the age of majority;
(c) if none or if none is readily available, any one of his parents of any age;
(d) if none or if neither is readily available, any one of his brothers or sisters who has attained the age of majority;
(e) if none or if none is readily available, any other of his next of kin who has attained the age of majority; or
(f) if none or if none is readily available, the person lawfully in possession of the body other than, where he died in hospital, the administrative head of the hospital,
(g) in a writing signed by the spouse, relative or other person;
(h) orally by the spouse, relative or other person in the presence of at least two witnesses; or
(i) by the telegraphic, recorded telephonic or other recorded message of the spouse, relative or other person,
to the body or the part or parts thereof specified in the consent being used after death for therapeutic purposes, medical education or scientific research.
(3) No person shall give a consent under this Section if he has reason to believe that the person who died or whose death is imminent would have objected thereto.
(4) Upon the death of a person in respect of whom a consent was given under this Section, the consent is binding and is, subject to Section 7, full authority for the use of the body or for the removal and use of the specified part or parts for the purpose specified except that no person shall act on a consent given under this Section if he has actual knowledge of an objection thereto by the person in respect of whom the consent was given or by a person of the same or closer relationship to the person in respect of whom the consent was given than the person who gave the consent. R.S., c. 215, s. 6; 2001, c. 31, s. 45.
6A (1) Where a person dies in a hospital and a consent has not been given pursuant to Section 5 or 6, the hospital shall, as soon as practicable after the death of the person, request permission or cause permission to be requested from the person entitled to consent pursuant to Section 6 to remove tissue from the body of the deceased person to be used for transplant purposes.
(2) Permission shall not be requested pursuant to subsection (1) where a person designated for the purpose of this subsection by the hospital or where a physician determines that
(a) no tissue could be used for transplant purposes because of the condition of the body of the deceased person and of the tissue thereof;
(b) there is no need for the use of any tissue from the body of the deceased person for transplant purposes; or
(c) the emotional and physical condition of the person from whom permission is required to be requested makes the request inappropriate.
(3) Where a person designated for the purpose of subsection (2) by the hospital or where a physician makes a determination pursuant to subsection (2), the reasons for the determination shall be placed in the medical record of the deceased person and a report shall be made to the administrator of the hospital.
(4) A hospital shall provide to the Minister of Health and Fitness such information, and in such form, as the Minister may request for the purpose of monitoring compliance with this Section. 1991, c. 13, s. 1.
7 Where, in the opinion of a physician the death of a person is imminent by reason of injury or disease and the physician has reason to believe that Sections 9 to 12 of the Fatality Investigations Act may apply when death does occur and a consent under this Part has been obtained for a post-mortem transplant of tissue from the body, the chief medical examiner, notwithstanding that death has not yet occurred, may give such directions as he thinks proper respecting the removal of such tissue after the death of the person. R.S., c. 215, s. 7; 2001, c. 31, s. 45.
8 (1) For the purposes of a post-mortem transplant, the fact of death shall be determined by at least two physicians in accordance with accepted medical practice.
(2) No physician, who has had any association with the proposed recipient that might influence his judgement, shall take any part in the determination of the fact of death of the donor.
(3) No physician, who took any part in the determination of the fact of death of the donor, shall participate in any way in the transplant procedures.
(4) Nothing in this Section in any way affects a physician in the removal of eyes for cornea transplants. R.S., c. 215, s. 8.
9 Where a gift under this Part cannot for any reason be used for any of the purposes specified in the consent, the subject-matter of the gift and the body to which it belongs shall be dealt with and disposed of as if no consent had been given. R.S., c. 215, s. 9.
10 No action or other proceeding for damages lies against any person for any act done in good faith and without negligence in the exercise or intended exercise of any authority conferred by this Act. R.S., c. 215, s. 10.
11 No person shall buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any tissue for a transplant or any body or part or parts thereof, other than blood or a blood constituent, for therapeutic purposes, medical education or scientific research, and any such dealing is invalid as being contrary to public policy. R.S., c. 215, s. 11.
12 (1) Except where legally required, no person shall disclose or give to any other person any information or document whereby the identity of any person
(a) who has given or refused to give a consent;
(b) with respect to whom a consent has been given; or
(c) into whose body tissue has been, is being or may be transplanted,
(2) Where the information or document disclosed or given pertains only to the person who disclosed or gave the information or document, subsection (1) does not apply. R.S., c. 215, s. 12.
13 Nothing in this Act makes unlawful any dealing with a body or part or parts thereof of a person that would be lawful if this Act had not been passed. R.S., c. 215, s. 13.
14 Every person who knowingly contravenes any provision of this Act is guilty of an offence and on summary conviction is liable to a fine of not more than one thousand dollars or to imprisonment for a term of not more than six months, or to both. R.S., c. 215, s. 14.
15 Except as provided in Section 7, nothing in this Act affects the operation of the Fatality Inquiries Act [Fatality Investigations Act]. R.S., c. 215, s. 15.
16 An authority given or a request made under the former Human Tissue Act before the sixth day of April, 1973, may be acted upon in accordance with that Act notwithstanding the repeal of that Act by Chapter 9 of the Acts of 1973. R.S., c. 215, s. 16.
