A A A

First Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 215

THE MANDATORY TESTING FOR PATHOGENS ACT


Table of Contents Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           The following definitions apply in this Act.

"applicant" means a person who applies for a testing order, or on whose behalf such an application is made. (« requérant »)

"chief medical officer of health" means the person appointed as chief medical officer of health under The Public Health Act. (« médecin hygiéniste en chef »)

"medical officer of health" means a person appointed or designated as a medical officer of health under The Public Health Act. (« médecin hygiéniste »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)

"pathogen" means a pathogen that causes a communicable disease designated by regulation. (« agent pathogène »)

"physician's report" means a report described in clause 2(2)(c). (« rapport de médecin »)

"source individual" means an individual from whom a sample of a bodily substance is sought for testing purposes under this Act. (« personne source »)

"testing order" means an order under section 3 or 4 for the obtaining of a sample of a bodily substance for testing purposes. (« ordre de dépistage »)

Application for testing order

2(1)        An individual who has come into contact with a bodily substance of another individual

(a) as a result of being a victim of crime;

(b) while providing emergency assistance to the individual, if the individual is ill, injured or unconscious as a result of an accident or other emergency;

(c) while performing duties as a firefighter, paramedic or peace officer; or

(d) while involved in an activity or circumstance prescribed by regulation;

may apply to a medical officer of health for a testing order under section 3.

Application requirements

2(2)        The application must

(a) set out the circumstances in which the applicant came into contact with the bodily substance of the source individual;

(b) state what attempts have been made to determine if the source individual is infected with a pathogen;

(c) be accompanied by a physician's report that

(i) was made by a physician within seven days after the applicant came into contact with the bodily substance,

(ii) assesses the risk to the health of the applicant as a result of the applicant having come into contact with the bodily substance,

(iii) assesses whether a testing order is necessary to decrease or eliminate the risk to the health of the applicant or others as a result of the contact, or to manage or treat the health of the applicant, and

(iv) meets any additional requirements prescribed by regulation;

(d) subject to the regulations, be made within 30 days after the applicant came into contact with the bodily substance;

(e) set out the addresses for service of the following persons:

(i) the applicant and his or her physician,

(ii) if known by the applicant, the source individual; and

(f) meet any additional requirements prescribed by regulation.

Application by another person

2(3)        If the individual who came into contact with the bodily substance is not able to make the application, any person may make the application on the individual's behalf.

Physician may require testing, counselling or treatment of applicant

2(4)        The physician preparing the report referred to in clause (2)(c) may, for the purpose of that report, require the applicant to submit to an examination, base line testing, counselling or treatment.

Medical officer may make testing order

3(1)        Upon application, a medical officer of health may make an order as described in subsection (2) if he or she is satisfied that

(a) the applicant came into contact with a bodily substance of another individual in any of the circumstances referred to in subsection 2(1);

(b) the application satisfies the requirements of section 2;

(c) there are reasonable grounds to believe that, because of the contact, the applicant might have become infected with a pathogen;

(d) having regard to

(i) the physician's report,

(ii) the incubation periods for communicable diseases, and

(iii) the methods available for ascertaining the presence of pathogens in the human body,

an analysis of the applicant's bodily substances would not accurately determine, in a timely manner, whether the applicant has become infected with a pathogen as a result of the contact;

(e) the information to be obtained under the proposed testing order cannot reasonably be obtained in any other manner;

(f) carrying out the proposed order would not endanger the life of the source individual; and

(g) having regard to the physician's report, the information that is likely to be obtained from testing the sample sought to be obtained is necessary for the proper treatment or management of the applicant's health.

Contents of order

3(2)        An order under subsection (1) must

(a) designate a physician or qualified health professional, or a class of such persons, to take or be available to take a sample of a bodily substance from the source individual;

(b) designate an analyst or class of analysts to analyze the sample;

(c) require the source individual, within the time specified in the order, to allow the designated physician or other professional, or a member of the designated class, as the case may be, to take a sample of a bodily substance as specified in the order to determine whether the individual is infected with a pathogen;

(d) require a parent or guardian of the source individual, if the source individual is under 16 years of age, to take all reasonable steps to ensure that the individual complies with the order;

(e) require the designated physician or other professional, or the member of the designated class to whom the source individual goes for the taking of the sample,

(i) to take the sample in the manner specified in the order,

(ii) to provide the sample to the designated analyst or to a member of the designated class of analysts, as the case may be, and

(iii) to provide the applicable analyst with the addresses for service of the source individual and his or her physician, if known by the physician or other professional who took the sample; and

(f) require the analyst to whom the sample is provided

(i) to perform the tests and analysis specified in the order and prepare a report setting out the results,

(ii) to make a reasonable attempt to deliver the report to the source individual's physician and, if successful, make a reasonable attempt to notify the source individual that the report was delivered to that physician,

(iii) to make a reasonable attempt to deliver the report to the applicant's physician, and

(iv) to make a reasonable attempt to deliver to the applicant

(A) a written notice of the delivery or attempted delivery of the report to the applicant's physician, and

(B) a written recommendation that the applicant consult his or her physician for a proper interpretation of that report.

Medical officer may hold hearing

3(3)        Before making the order, the medical officer of health may hold a hearing of all persons who may be affected by the order, but is not required to do so.

Medical officer to provide addresses

3(4)        After making the order, the medical officer of health must provide the address for service of the applicant and the applicant's physician

(a) to the designated analyst; or

(b) if the order designated a class of analysts, to the analyst to whom the sample was provided, upon the request of that analyst.

Appeal to chief medical officer if no order made

4(1)        If a medical officer of health to whom an application is made under section 2 refuses to make an order under section 3,

(a) the medical officer of health must notify the applicant of that decision; and

(b) the applicant may appeal that decision to the chief medical officer of health in the manner and within the time prescribed by the regulations.

Chief medical officer's response

4(2)        Upon receipt of an appeal under subsection (1), the chief medical officer of health may

(a) confirm the decision of the medical officer of health;

(b) refer the matter back to the medical officer of health for reconsideration, along with any directions that the chief medical officer of health considers appropriate; or

(c) make any order that the medical officer of health could have made under section 3.

Court order for compliance

5           If a person does not comply with a testing order within the time specified in the order, the chief medical officer of health or the minister may apply to the Court of Queen's Bench for an order requiring the person

(a) to comply with the testing order within the time specified by the court; and

(b) to take any other action the court considers appropriate in the circumstances to protect the interests of the applicant for the testing order.

Obligation of person taking sample

6           A person who takes a sample of a bodily substance as required by a testing order must not use or deal with the sample except as permitted or required by the order.

Obligation of analyst

7           An analyst who receives a sample of a bodily substance for analysis under a testing order

(a) must ensure that the sample is not used for any purpose other than the analysis and the reporting of that analysis as required by the order;

(b) must not release the sample to any person for any purpose other than

(i) to carry out the testing and analysis as required by the order, or

(ii) to retain the sample for the testing and analysis, as long as no person other than the analyst has access to the sample while it is being retained; and

(c) must not disclose the results of the analysis to any person except as required or permitted by the order, this Act or The Public Health Act.

Results not admissible as evidence

8           The results of an analysis of a sample of a bodily substance obtained under a testing order are not admissible as evidence in a criminal or civil proceeding, other than in accordance with this Act or The Public Health Act.

Confidentiality

9(1)        Subject to subsection (2), no person shall use or disclose any information about an applicant or a source individual that comes to the person's knowledge in the course of carrying out any responsibility under this Act or the regulations.

Permitted disclosure

9(2)        A person may disclose information described in subsection (1) if the disclosure is

(a) required to administer this Act or the regulations;

(b) required to carry out a duty imposed, or to exercise a power conferred, by or under this Act or the regulations;

(c) required by law;

(d) requested or approved by the individual who is the subject of the information;

(e) ordered by the minister for the purpose of protecting the public health; or

(f) made on a need-to-know basis

(i) in the course of a professional consultation between health professionals,

(ii) between solicitor and client,

(iii) to a parent or guardian of the individual who is the subject of the information, if that individual is a minor, or

(iv) in prescribed circumstances.

Disclosure in legal proceeding

9(3)        No person who is subpoenaed or otherwise compelled to give evidence in a legal proceeding is required or allowed to answer a question or to produce a document that reveals information described in subsection (1), unless the judge or other person presiding over the proceeding first examines the information, with the public excluded, and determines whether the information should be disclosed having regard to

(a) the probative value of the information;

(b) the relevance of the information to the proceeding; and

(c) the effect of the disclosure on the privacy of the person who is the subject of the information.

Protection from liability

10          No action or proceeding may be brought

(a) against a medical officer of health or the chief medical officer of health for making an order or refusing to make an order under this Act, unless he or she was acting in bad faith;

(b) against a physician or other qualified health professional for taking a sample of a bodily substance from an individual as required by an order under this Act; or

(c) against any person for disclosing information as required or permitted by this Act.

Regulations

11          The Lieutenant Governor in Council may make regulations

(a) designating communicable diseases for the purposes of this Act;

(b) prescribing activities or circumstances for the purpose of clause 2(1)(d);

(c) governing applications for testing orders;

(d) governing the information to be included in a physician's report, and the form in which it is to be provided;

(e) governing appeals under section 4;

(f) prescribing circumstances in which confidential information under this Act may be disclosed;

(g) respecting the handling, retention and destruction of samples of bodily substances;

(h) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Offence and penalty

12(1)       Every person who contravenes a provision of this Act or the regulations or an order made under this Act is guilty of an offence and is liable on summary conviction

(a) for a first offence, to a fine not greater than $5,000. plus $500. for each day or part of a day that the offence continues; and

(b) for a second or subsequent offence, to a fine not greater than $10,000. plus $1,000. for each day or part of a day that the offence continues.

Limitation

12(2)       A prosecution for an alleged offence under this Act may be commenced not later than two years after the day the alleged offence was committed.

Act prevails

13          In the event of a conflict between a provision of this Act and a provision of The Freedom of Information and Protection of Privacy Act or The Personal Health Information Act, the provision of this Act prevails.  But nothing in this section shall be construed to limit or deny a person's right to access his or her own personal information.

Amendments effective when Public Health Act replaced

14(1)       Section 1 of this Act is amended

(a) by repealing the definition "chief medical officer of health"; and

(b) by adding the following definition:

"chief public health officer" means the chief provincial public health officer appointed under section 10 of The Public Health Act. (« médecin hygiéniste en chef »)

14(2)       Subsection 4(1) of the English version of this Act is amended

(a) in the section heading, by striking out "chief medical officer" and substituting "chief public health officer"; and

(b) in clause (b), by striking out "chief medical officer of health" and substituting "chief public health officer".

14(3)       Subsection 4(2) of the English version of this Act is amended

(a) in the section heading, by striking out "Chief medical officer's" and substituting "Chief public health officer's"; and

(b) in the part before clause (a) and in clause (b), by striking out "chief medical officer of health" and substituting "chief public health officer".

14(4)       Section 5 of the English version of this Act is amended in the part before clause (a) by striking out "chief medical officer of health" and substituting "chief public health officer".

14(5)       Clause 10(a) of the English version of this Act is amended by striking out "chief medical officer of health" and substituting "chief public health officer".

C.C.S.M. reference

15          This Act may be referred to as chapter M25 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

16(1)       This Act, except section 14, comes into force on a day to be fixed by proclamation.

Coming into force: section 14

16(2)       Section 14 comes into force on the day that The Public Health Act, S.M. 2006, c. 14, comes into force.

Explanatory Note

An individual who comes into contact with a bodily substance of another person who might be infected with a communicable disease may be at risk of contracting the disease.  This Bill enables such an individual, in certain circumstances, to apply to a medical officer of health for an order requiring the other person to provide a sample of a bodily substance for testing and analysis.

Such orders can be made if

  • the applicant is a victim of a crime and the contact occurred in connection with that crime;
  • the contact occurred while the applicant was providing emergency assistance to the person in the context of an accident or emergency; or
  • the contact occurred while the applicant was performing his or her duties as a firefighter, paramedic or peace officer;

or in other circumstances prescribed by regulation.

A sample obtained under a testing order will have to be tested and analyzed in accordance with the order, and a report of the results will have to be provided to the applicant's physician.  The results cannot be used as evidence in a civil or criminal proceeding.