Acts and Regulations

H-12.5 - Human Tissue Gift Act

Table of contents
Full text
Repealed on 10 February 2015
CHAPTER H-12.5
Human Tissue Gift Act
Assented to June 30, 2004
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Repealed: R.S.N.B. 2014, Schedule A.
1
INTERPRETATION
Definitions
1The following definitions apply in this Act.
“common-law partner” means, in relation to any person, a person who, not being married to that person, is residing with, or was residing with immediately before death, that person and who has, or had immediately before death, cohabited continuously in a conjugal relationship with that person for at least one year. (conjoint de fait)
“person lawfully in possession of the body” does not include the coroner in possession of the body for the purposes of the Coroners Act, an embalmer or funeral director in possession of the body for the purpose of its burial, cremation or other disposition, or the superintendent of a crematorium in possession of the body for the purpose of its cremation. (personne légalement en possession du corps)
“regional health authority” means a regional health authority as defined in the Regional Health Authorities Act. (régie régionale de la santé)
“spouse” means, in relation to any person, a person who is married to and residing with, or who was married to and resided with, that person immediately before death. (conjoint)
“tissue” includes an organ, but does not include any skin, bone, blood, blood constituent or other tissue that is replaceable by natural process of repair. (tissu)
“transplant” means the removal of tissue from a human body and its implantation in a living human body. (transplantation)
2
INTER VIVOS GIFTS FOR TRANSPLANTS
Transplants under Act are lawful
2A transplant from one living human body to another living human body may be done in accordance with this Act, but not otherwise.
Consent for transplant
3(1)Any person who has attained the age of 19 years, is mentally competent to consent, and is able to make a free and informed decision may consent in writing, signed by him or her, to the removal from his or her body of tissue specified in the consent and its implantation in the body of another living person.
3(2)Notwithstanding subsection (1), a consent given by a person under this section who had not attained the age of 19 years, was not mentally competent to consent, or was not able to make a free and informed decision, is still 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 19 years, was not mentally competent to consent or was not able to make a free and informed decision, as the case may be.
3(3)A consent given under this section is full authority for any medical practitioner to
(a) make any examination necessary to assure medical acceptability of the tissue specified in the consent, and
(b) remove such tissue from the body of the person who gave the consent.
3
POST-MORTEM GIFTS FOR
TRANSPLANTS
Consent by person for use of body after death
4(1)Any person who has attained the age of 19 years may consent either
(a) in writing at any time, or
(b) orally in the presence of at least 2 witnesses during his or her last illness,
that his or her body or a specified part or parts of his or her body be used after his or her death for therapeutic purposes, or for the purposes of medical education or scientific research.
4(2)Notwithstanding subsection (1), a consent given by a person under this section who had not attained the age of 19 years is still valid if the person who acted upon it had no reason to believe that the person who gave it had not attained the age of 19 years.
4(3)Upon the death of a person who has given 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 of the body for the purposes specified, except that no person shall act upon a consent given under this section
(a) if the person has reason to believe that the consent was subsequently withdrawn, or
(b) if the person has reason to believe that an inquest may be required to be held into the death of the deceased person, unless a coroner gives a direction under section 6.
Consent by others for use of body after death
5(1)Where a person of any age who has not given a consent under section 4 dies or, in the opinion of a medical practitioner, is incapable of giving a consent by reason of injury or disease and the person’s death is imminent,
(a) the person’s spouse or common-law partner, or
(b) if there is no spouse or common-law partner, or if the spouse or common-law partner is not readily available, any one of the person’s children who has attained the age of 19 years, or
(c) if none, or if none is readily available, either one of the person’s parents, or
(d) if none, or if neither is readily available, any one of the person’s brothers or sisters, or
(e) if none, or if none is readily available, any other of the person’s next of kin who has attained the age of 19 years, or
(f) if none, or if none is readily available, the person lawfully in possession of the body other than, where the person died in hospital, the regional health authority,
may consent in writing, or orally in the presence of at least 2 witnesses, to the use of the body of the person or any specified part or parts of the body after death for therapeutic purposes, or for the purposes of medical education or scientific research.
5(2)No person shall give a consent under this section if the person has reason to believe that the person who died or whose death is imminent would have objected to the giving of the consent.
5(3)Upon the death of a person in respect of whom a consent was given under this section, the consent is binding and is full authority for the use of the person’s body or for the removal and use of the specified part or parts of the body for the purposes specified, except that no person shall act on a consent given under this section if the person
(a) has knowledge of an objection by the deceased person,
(b) has knowledge of an objection by a person of the same or closer relationship to the deceased person than the person who gave consent, or
(c) has reason to believe that an inquest may be required to be held into the death of the deceased person, unless a coroner gives a direction under section 6.
Coroner’s direction
6Where, in the opinion of a medical practitioner, the death of a person is imminent by reason of injury or disease and the medical practitioner has reason to believe that section 4 of the Coroners Act may apply when death does occur and a consent under this Act has been obtained for the post-mortem use of a specified part or parts from the body for therapeutic purposes or for the purposes of medical education or scientific research, a coroner having jurisdiction, despite the fact that death has not yet occurred, may give such directions as the coroner thinks proper respecting the removal of such part or parts of the body after the death of the person, and every such direction has the same force and effect as if it had been made after death under section 5 of the Coroners Act.
Determination of death
7(1)For the purposes of post-mortem removal of a human body part or parts for implantation in a living human body, the fact of death must be determined in accordance with accepted medical practice by
(a) at least 2 medical practitioners, when the fact of death is determined in accordance with neurological criteria, or
(b) one medical practitioner, when the fact of death is determined by other criteria.
7(2)No medical practitioner who has had any association with the proposed recipient that might influence his or her judgment shall take any part in the determination of the fact of the death of the donor.
7(3)No medical practitioner who took any part in the determination of the fact of death of the donor shall participate in any way in the removal or implantation procedures.
2006, c.22, s.1
Required request
8(1)Where a person dies in a hospital and a consent has not already been given under this Act, the regional health authority shall, as soon as practicable after the death of the person, request the consent of, or cause consent to be requested from, the person entitled to consent on behalf of the deceased under the Act to use the body of the deceased person or any specified part for therapeutic purposes or for the purposes of medical education or scientific research.
8(2)A request under subsection (1) shall not be made where a person designated for the purpose of this section by the regional health authority or a medical practitioner determines that
(a) the body or part of the body of the deceased person could not be used for therapeutic purposes or for the purposes of medical education or scientific research because of its condition,
(b) there is no need for the use of the body or part of the body of the deceased person for therapeutic purposes or for the purposes of medical education or scientific research, or
(c) the emotional and physical condition of the person to whom the request would be made makes the request inappropriate.
8(3)Where a person designated for the purpose of this section by the regional health authority or a medical practitioner makes a determination that a request should not be made, the reasons for the determination shall be placed in the medical record of the deceased person.
8(4)A regional health authority shall provide to the Minister of Health such information, in such form, as the Minister may request for the purpose of monitoring compliance with this section.
2006, c.16, s.88
Where specified use fails
9Where 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.
4
GENERAL
Dealing in tissue or body parts prohibited
10(1)No person shall buy, sell or otherwise deal in, directly or indirectly, for a valuable consideration, any human tissue for a transplant or any human body or part of any human body, other than blood or a blood constituent, for therapeutic purposes or for the purposes of medical education or scientific research.
10(2)A person who knowingly violates or fails to comply with subsection (1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category J offence.
10(3)No person commits an offence under subsection (2) where that person, for a valuable consideration, participates in, or performs a service necessarily incidental to, the process whereby a transplant of human tissue is effected or a human body or part of the body is prepared for use for therapeutic purposes or for the purposes of medical education or scientific research.
Liability
11No action for damages or other proceeding 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.
Transition
12An authorization given under the Human Tissue Act before this Act comes into force may be acted upon in accordance with that Act, notwithstanding its repeal.
Consequential amendment to the Coroners Act
13Subsection 5(1) of the Coroners Act, chapter C-23 of the Revised Statutes, 1973, is amended by adding “or remove any part from the body of the deceased for the purposes of the Human Tissue Gift Act” after “deceased”.
Repeal
14The Human Tissue Act, chapter H-12 of the Revised Statutes, 1973, is repealed.
Repealed
15Repealed: 2006, c.22, s.2
2006, c.22, s.2
N.B. Sections 1-6, subsections 7(2) and (3) and sections 8-14 of this Act were proclaimed and came into force April 29, 2005.
N.B. This Act is consolidated to February 9, 2015.