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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
Human Tissue Gift Act
 
Legislature :
55
Session :
1
Bill No. :
37
Member :
Hon. E. Robichaud
First Reading :
2004-4-2
Second Reading :
2004-4-6
Committee of the Whole :
2004-6-18
Amended :
Third Reading :
2004-6-22
Royal Assent :
2004-6-30
Download PDF :
  Bill 37         
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Text of Bill :
Chapter Outline



PART 1

INTERPRETATION

Definitions..... 1

common-law partner — conjoint de fait

person lawfully in possession of the body — personne légalement en possession du corps

regional health authority — régie régionale de la santé

spouse — conjoint

tissue — tissu

transplant — transplantation

PART 2

INTER VIVOS GIFTS FOR TRANSPLANTS

Transplants under Act are lawful.................... 2

Consent for transplant... 3

PART 3

POST-MORTEM GIFTS FOR TRANSPLANTS

Consent by person for use of body after death........... 4

Consent by others for use of body after death........... 5

Coroner's direction.... 6

Determination of death........... 7

Required request.................... 8

Where specified use fails...... 9

PART 4

GENERAL

Dealing in tissue or body parts prohibited 10

Liability........ 11

Transition..... 12

Consequential amendment to Coroners Act.................. 13

Repeal........... 14

Commencement.................. 15





Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



PART 1

INTERPRETATION

Definitions

1                           The 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)



PART 2

INTER VIVOS GIFTS FOR TRANSPLANTS

Transplants under Act are lawful

2                           A 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.



PART 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

6                              Where, 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 the post-mortem removal of a human body part or parts for implantation in a living human body, the fact of death must be determined by at least 2 medical practitioners in accordance with accepted medical practice.



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.



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 and Wellness such information, in such form, as the Minister may request for the purpose of monitoring compliance with this section.



Where specified use fails

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.



PART 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

11                        No 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

12                        An 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

13                              Subsection 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

14                        The Human Tissue Act, chapter H-12 of the Revised Statutes, 1973, is repealed.



Commencement

15                        This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.
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Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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