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This is an unofficial version.
If you need an official copy, use the bilingual (PDF) version.

This version is current as of November 21, 2014.
It has been in effect since June 16, 2005.

Note: Earlier consolidated versions are not available online.


 

C.C.S.M. c. H180

The Human Tissue Gift Act

(Assented to July 17, 1987)

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

Definitions

1           In this Act,

"common-law partner" of a deceased or dying person means

(a) a person who, with the deceased or dying person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who is cohabiting or has cohabited with the deceased or dying person immediately before a direction is acted upon under section 3 or death occurs, or

(b) a person who, not being married to the deceased or dying person, is cohabiting or has cohabited with him or her in a conjugal relationship

(i)  for a period of at least one year immediately before a direction is acted upon under section 3 or death occurs, or

(ii)  for a period of less than one year immediately before a direction is acted upon under section 3 or death occurs, and they are together the parents of a child; (« conjoint de fait »)

"designated facility" means

(a) a hospital defined in The Health Services Insurance Act, and

(b) a health care facility that has been designated by regulation; (« établissement désigné »)

"human tissue gift agency" means

(a) the Lions Eye Bank of Manitoba and Northwest Ontario Inc.,

(b) the Winnipeg Regional Health Authority Tissue Bank Program,

(c) the Winnipeg Regional Health Authority Organ Donation Program, and

(d) any other entity that is designated by regulation as a human tissue gift agency; (« organisme chargé des dons de tissus humains »)

"Inspector of Anatomy" means the Inspector of Anatomy appointed under The Anatomy Act; (« inspecteur de l'Anatomie »)

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

"nearest relative" means

(a) a spouse, unless there is a common-law partner,

(a.1) a common-law partner, or

(b) if there is no spouse or common-law partner, or if the spouse or common-law partner is unavailable, a son or daughter at least 18 years of age; or

(c) if there is no son or daughter at least 18 years of age, or if any sons or daughters at least 18 years of age are unavailable, a parent or legal guardian; or

(d) if there is no parent or legal guardian, or if the parent or parents or the legal guardian or legal guardians is or are unavailable, a brother or sister at least 18 years of age who is not unavailable; (« le plus proche parent »)

"non-regenerative tissue" means tissue other than regenerative tissue; (« tissu non susceptible de régénération »)

"physician" means a duly qualified medical practitioner; (« médecin »)

"proxy" means a proxy appointed in a health care directive made in accordance with The Health Care Directives Act, but does not include a proxy to the extent he or she is restricted, by the terms of the directive, from making decisions that fall within the scope of this Act; (« mandataire »)

"regenerative tissue" means tissue that, after injury within or removal from the body of a living person, is replaced in the person's body by natural processes; (« tissu susceptible de régénération »)

"spouse" means a person to whom the person is married; (« conjoint »)

"therapeutic purposes" includes transplant purposes; (« fins thérapeutiques »)

"tissue" includes an organ, a part of a human body and a substance extracted from the human body or from a part of the human body, but does not include

(a) spermatozoa or ova, or

(b) an embryo or a fetus or a part of an embryo or a fetus, or

(c) blood or blood constituent, or

(d) a placenta; (« tissu »)

"transplant" means the removal of tissue from a human body, whether living or dead, and its implantation in another human body; (« transplantation »)

"unavailable" means unable to act because of death, physical or mental illness or incapacity, absence or other cause. (« non disponible »)

S.M. 1989-90, c. 28, s. 2; S.M. 1992, c. 33, s. 29; S.M. 2002, c. 24, s. 30; S.M. 2002, c. 48, s. 11; S.M. 2004, c. 40, s. 3; S.M. 2005, c. 42, s. 21.

Direction by adult before death

2(1)        A person who is 18 years of age or over may direct that the whole body of the person, or any tissue or specified tissue from the body, may be used after the person's death for therapeutic purposes or for purposes of medical education or scientific research.

Direction by minor before death

2(2)        A direction mentioned in subsection (1) may be given by a person who is under 18 but not under 16 years of age,

(a) where a parent or legal guardian of the person consents to the direction; or

(b) without the consent required under clause (a), where the parent or parents or the legal guardian or legal guardians of the person is or are unavailable.

Effect of direction

2(3)        Upon the death of a person who has given a direction under subsection (1) or (2), the direction is full authority for obtaining possession of the body, and the use of the body or the removal and use of any tissue or specified tissue from the body, as the case may be, for the purposes specified in the direction, but a person shall not act upon the direction where the person proposing to act has reason to believe

(a) that the person who gave the direction subsequently withdrew it; or

(b) that the person who gave the direction was not capable of understanding the nature and effect thereof; or

(c) that an inquiry or investigation under The Fatality Inquiries Act may be required to be held respecting the cause and manner of death, unless a medical examiner or the chief medical examiner appointed under that Act has no objection to the use of the body or the removal and use of the tissue.

Incorrect age

2(4)        A direction given

(a) under subsection (1) by a person who is under 18 years of age; or

(b) under subsection (2) by a person who is under 16 years of age;

that has been acted upon is deemed to be valid for the purposes of this section if the person who acted upon it had no reason to believe that the person who gave the direction was in fact under 18 years of age or under 16 years of age, as the case may be, at the time of giving the direction.

S.M. 2004, c. 40, s. 4.

Direction on behalf of deceased person

3(1)        Where a person who dies

(a) has not made a direction under section 2;

(b) has made a direction under section 2 that by virtue of clause 2(3)(b) cannot be acted upon; or

(c) is under 16 years of age;

a person described in subsection (1.1) may direct that the deceased person's whole body, or any tissue or specified tissue from the deceased person's body, may be used for therapeutic purposes or for purposes of medical education or scientific research.

Direction by proxy or nearest relative

3(1.1)      A direction may be given under subsection (1)

(a) by the deceased person's proxy, if the deceased person was 18 years of age or over at the time of death;

(b) if there is no proxy authorized to act or the proxy is unavailable, by the deceased person's nearest relative; or

(c) if there is no nearest relative or the nearest relative is unavailable, by the person lawfully in possession of the body or the Inspector of Anatomy, as the case may be.

Exceptions

3(2)        In subsection (1), the expression "person lawfully in possession of the body" does not include

(a) a medical examiner in possession of a body for the purpose of inquiry or investigation; or

(b) an embalmer or funeral director in possession of a body for the purpose of its burial, cremation or other disposal.

Direction on behalf of dying person

3(3)        Where a physician is of the opinion that a person

(a) who has not made a direction under section 2; or

(b) who has made a direction under section 2 that by virtue of clause 2(3)(b) cannot be acted upon;

is incapable of making a direction under section 2 and that the person's death is imminent and inevitable, a person described in subsection (3.1) may direct that the dying person's whole body, or any tissue or specified tissue from the dying person's body, may be used after death for therapeutic purposes or for purposes of medical education or scientific research.

Direction by proxy or nearest relative

3(3.1)      A direction may be given under subsection (3)

(a) by the dying person's proxy, if the dying person is 18 years of age or over; or

(b) if there is no proxy authorized to act or the proxy is unavailable, by the dying person's nearest relative.

Direction where person under 16

3(4)        Where a person is under 16 years of age and a physician is of the opinion that the person's death is imminent and inevitable, the person's nearest relative may direct that the whole body of the person, or any tissue or specified tissue from the body, may be used after the person's death for therapeutic purposes or for purposes of medical education or scientific research.

Effect of direction

3(5)        Upon the death of a person in respect of whom a direction is given under this section, the direction is full authority for obtaining possession of the body, and the use of the body or the removal and use of any tissue or specified tissue from the body, as the case may be, for the purposes specified in the direction, but a person shall not act upon the direction where the person proposing to act has reason to believe

(a) that the use of the body or the removal and use of tissue from the body after death would be contrary to the religious beliefs of the deceased person or that the deceased person, if living, would have objected thereto; or

(b) that an inquiry or investigation under The Fatality Inquiries Act may be required to be held respecting the cause and manner of death, unless a medical examiner or the chief medical examiner appointed under that Act has no objection to the use of the body or the removal and use of the tissue.

S.M. 1992, c. 33, s. 29; S.M. 2004, c. 40, s. 4.

Human tissue gift agency to be notified

4(1)        Subject to the requirements and circumstances established under subsection 4.2(1), a designated facility must notify the required human tissue gift agency when

(a) a patient at the facility dies;

(b) a physician at the facility advises that the death of a person at the facility is imminent and inevitable; or

(c) the facility receives a dead body.

Agency to determine if direction was made

4(2)        Upon receiving a notice described in subsection (1), the human tissue gift agency must ensure that reasonable efforts are made to determine whether the deceased or dying person made a direction under section 2.

If no direction found

4(3)        If a direction cannot be found promptly, the agency must decide whether the circumstances are appropriate to make a request under subsection (4).  In doing so, it must consider, in consultation with the designated facility,

(a) the emotional and physical condition of

(i) the person to be asked, and

(ii) in the case of a deceased person, his or her survivors; and

(b) the suitability of the body or its tissues, and the therapeutic purposes or medical education or scientific research purposes for which they may be used.

Request re direction

4(4)        If circumstances are appropriate, the agency must,

(a) in the case of a dying person, ask

(i) the person whether he or she wishes to make a direction under section 2, or

(ii) his or her proxy or nearest relative whether he or she wishes to make a direction under subsection 3(3); or

(b) in the case of a deceased person, ask the person's proxy or nearest relative, or the person lawfully in possession of the body or the Inspector of Anatomy, whether he or she wishes to make a direction under section 3.

When request not to be made

4(5)        A request must not be made under subsection (4) if the agency has reason to believe that

(a) the person actually objected — and the objection was not withdrawn — while living, to the use of his or her body or the removal and use of tissue from his or her body after death;

(b) the person would have objected, if living, to the use of his or her body or the removal and use of tissue from his or her body after death; or

(c) the use of the person's body or the removal and use of tissue from the person's body after death would be contrary to the person's religious beliefs.

S.M. 1992, c. 33, s. 29; S.M. 2004, c. 40, s. 5.

Agency may request assistance of facility

4.1         A human tissue gift agency may request the designated facility to ask for a direction on its behalf.  In that case, the facility must make reasonable efforts to ask for a direction in accordance with section 4.

S.M. 2004, c. 40, s. 5.

Requirements established by human tissue gift agencies

4.2(1)      The human tissue gift agencies may jointly establish

(a) requirements relating to a notice under subsection 4(1), including

(i) which human tissue gift agency is required to be notified,

(ii) the time period in which notification must be given, and

(iii) information, including personal information and personal health information, that is to be provided in respect of a deceased or dying person,

and a designated facility must comply with those requirements; and

(b) circumstances in which notification is not required and, despite subsection 4(1), a designated facility is not required to notify a human tissue gift agency in those circumstances.

Consultations

4.2(2)      In the course of preparing requirements under subsection (1), the human tissue gift agencies must consult with the operators of the designated facilities, and may consult with other persons and entities that the agencies consider appropriate.

S.M. 2004, c. 40, s. 5.

Where body or tissue not required

5(1)        Where a direction has been given under this Act for the use of a whole body, or the removal after death and use of any tissue or specified tissue from a body, for therapeutic purposes or for purposes of medical education or scientific research, and at the time of or immediately after the death there is no known request or knowledge of a reasonable possibility of a request for the body or tissue for the purposes set out in the direction, the body shall be dealt with as though no direction under this Act had been given.

Disposal of body after removal of tissue

5(2)        Where a direction is given under this Act for the removal of tissue from the body of a person, but not for the use of the whole body, after death, the body shall, forthwith after the removal of the tissue, be delivered to the custody and control of the person who would have had the custody and control if no direction had been given under this Act.

Custody of Inspector of Anatomy

5(3)        Where a direction is given under this Act for the use of the whole body of a person after death for medical education or scientific research, the body shall be delivered after death to the custody and control of the Inspector of Anatomy who shall deal with the body in accordance with the provisions of The Anatomy Act but subject always to the provisions of this Act and of the direction.

S.M. 2004, c. 40, s. 4.

Removal of pituitary gland

6(1)        Notwithstanding that no direction has been given under this or any other Act of the Legislature with respect to the use of the body after death or the removal of tissue from the body after death, any person lawfully performing a post mortem examination of a body may remove the pituitary gland from the body and cause it to be delivered to any person or agency designated by the Inspector of Anatomy for use in the treatment of persons with a growth hormone deficiency.

Where section does not apply

6(2)        This section does not apply where the person performing a post mortem examination of a body has reason to believe that

(a) the deceased, if living, would have objected; or

(b) the deceased's nearest relative objects;

to the removal of the pituitary gland from the body after death for the purpose mentioned in subsection (1).

7           Repealed.

S.M. 2004, c. 40, s. 6.

Determination of death

8(1)        Any determination of the occurrence of brain death within the meaning of The Vital Statistics Act, with circulation still intact, that may be necessary for the purposes of a successful transplant of tissue pursuant to this Act shall be made by at least two physicians and subject to subsections (2) and (3).

Independence of physicians

8(2)        A physician who has or has had an association with a proposed recipient of tissue by way of transplant pursuant to this Act, where the association is or was of such a nature that it is likely to influence the judgment of the physician, shall not participate in the making of a determination under subsection (1) of the death of the person from whose body the tissue is to be removed.

Participation in transplant prohibited

8(3)        A physician who participates in

(a) a determination of death under subsection (1); or

(b) the withdrawal or withholding of life-prolonging medical treatment in accordance with a health care directive made under The Health Care Directives Act;

in respect of a person from whose body tissue is to be removed for a proposed transplant shall not participate in the transplant operation.

S.M. 1992, c. 33, s. 29.

Donations by living persons

9(1)        A person who is

(a) 18 years of age or over; and

(b) able to make a free and informed decision;

may, subject to subsections (2), (3) and (4), consent to the removal of tissue specified in the consent, from the person's own body while living, for therapeutic purposes or for purposes of medical education or scientific research, as the consent may specify.

Regenerative and non-regenerative tissue

9(2)        A consent under subsection (1) for the removal and use of tissue for therapeutic purposes may be given in the case of both regenerative and non-regenerative tissue.

Regenerative tissue only

9(3)        A consent under subsection (1) for the removal and use of tissue for medical education or scientific research may be given only in the case of regenerative tissue.

Certification of physician

9(4)        A consent given under this section is not valid unless a physician who does not have and has never had an association with any person benefiting or likely to benefit from the consent certifies in writing that the person giving the consent has been advised of and understands the nature and effect of the procedure authorized by the consent.

Participation prohibited

9(5)        A physician who gives a certification under subsection (4) shall not participate in the removal or subsequent use of the tissue to which the certification relates.

S.M. 2004, c. 40, s. 4.

Donations by living minors

10(1)       A person who is under the age of 18 years but not under the age of 16 years may, subject to subsection (2), consent to the transplant of tissue specified in the consent from the person's own body while living to the body of another living person.

Conditions precedent

10(2)       A consent for the transplant of tissue under subsection (1) is not valid unless

(a) a physician who does not have and has never had an association with the proposed recipient of the tissue certifies in writing that the person giving the consent is, in the physician's opinion, capable of understanding and in fact understands the nature and effect of the procedure authorized by the consent;

(b) the person giving the consent is a member of the immediate family of the proposed recipient of the tissue; and

(c) a parent or legal guardian of the person giving the consent consents to the transplant of the tissue.

Participation in transplant prohibited

10(3)       A physician who under subsection (2) gives a certification in respect of a proposed transplant of tissue shall not participate in the transplant operation.

"Member of immediate family" defined

10(4)       For the purposes of subsection (2), the mother or father, or the step-mother or step-father, or the brother or sister, or the step-brother or step-sister, or the half-brother or half-sister, of a proposed recipient of tissue is a "member of the immediate family" of the proposed recipient.

Donations by living minors under 16

11(1)       In the case of a person who is under the age of 16 years, tissue from the body of the person while living may be transplanted to the body of another living person where, but only where,

(a) the person from whose body the tissue is to be removed consents thereto;

(b) the tissue is regenerative tissue;

(c) the proposed recipient of the tissue would likely die without the transplant;

(d) the risk to the life and health of the person giving the consent is relatively insubstantial;

(e) the person giving the consent is a member of the immediate family of the proposed recipient of the tissue;

(f) a parent or legal guardian of the person giving the consent consents to the transplant of the tissue;

(g) the transplant is recommended by a physician who does not have and has never had an association with the proposed recipient of the tissue; and

(h) the transplant is approved by the Court of Queen's Bench upon an application therefor.

Participation in transplant prohibited

11(2)       A physician who recommends a transplant of tissue under subsection (1) shall not participate in the transplant operation.

"Member of immediate family" defined

11(3)       For the purposes of subsection (1), the mother or father, or the step-mother or step-father, or the brother or sister, or the step-brother or step-sister, or the half-brother or half-sister, of a proposed recipient of tissue is a "member of the immediate family" of the proposed recipient.

Form of direction or consent

12          A direction or consent for the purposes of this Act respecting the use of the body of a deceased person or respecting the removal, before or after death, and the use of tissue from the body of a person, whether given by the person to whose body or tissue the direction or consent relates or by another person, may be given

(a) in writing; or

(b) by means of any type of recorded message; or

(c) orally in the presence of at least two witnesses; or

(d) by telephone to at least two witnesses.

13          Repealed.

S.M. 2004, c. 40, s. 7.

Information

13.1(1)     A human tissue gift agency may require a designated facility, or a physician who provides services in the facility, to provide it with information, including personal information and personal health information, in respect of a deceased or dying person that the agency considers reasonably necessary to permit it to determine the appropriateness of making a request under section 4.

Duty to provide information

13.1(2)     Anyone required to provide information under subsection (1) must do so.

Sharing of information

13.1(3)     A human tissue gift agency may share information it receives under this Act, including personal information and personal health information, with a person or another human tissue gift agency if doing so is reasonably necessary to facilitate the process whereby a transplant of human tissue is effected, or a human body or part or parts of a human body are prepared for use for therapeutic purposes or for purposes of medical education or scientific research.

S.M. 2004, c. 40, s. 8.

Protection from liability

14          No person shall be held liable for damages for anything done or omitted to be done, in good faith and without negligence, in the exercise or intended exercise of any power or authority conferred under this Act.

Sale etc. prohibited

15(1)       No person shall buy, sell, or otherwise deal in, directly or indirectly, for valuable consideration, any tissue for a transplant, or any body or parts of it other than blood or a blood constituent, for therapeutic purposes or for purposes of medical education or scientific research, and any such dealing is invalid as being contrary to public policy.

Exception for therapeutic purposes, medical and scientific research

15(2)       No person contravenes subsection (1) if the person receives reimbursement for reasonable expenses incurred in, or remuneration for, participating in or performing a service necessarily incidental to the process whereby a transplant of human tissue is effected, or a human body or part or parts of a human body are prepared for use for therapeutic purposes or for purposes of medical education or scientific research.

Offence and penalty

15(3)       A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine of not more than $10,000. or imprisonment for a term of not more than one year, or both.

Anatomy Act not affected

15(3.1)     Nothing in this Act affects the operation of The Anatomy Act or any other law.

Exception as to expenses

15(4)       Nothing in this section prohibits reimbursement, to the donor or recipient of a body or tissue from a body, or to the family or survivors of such a donor or recipient, or to any government or private medical or hospital plan, as the case may require, of reasonable expenses incurred in carrying out a direction or complying with a consent under this Act.

15(5)       Repealed, S.M. 2004, c. 40, s. 9.

S.M. 2004, c. 40, s. 9; S.M. 2005, c. 42, s. 21.

Regulations

15.1        The minister may make regulations

(a) for the purpose of the definition "designated facility" in section 1,

(i) defining the term "health care facility",

(ii) designating a health care facility as a designated facility,

(iii) establishing classes of health care facilities and designating one or more of those classes as designated facilities,

(iv) exempting a health care facility from a class of health care facilities designated under subclause (iii);

(b) designating an entity as a human tissue gift agency.

S.M. 2004, c. 40, s. 10.

Reference in Continuing Consolidation

16          This Act may be referred to as chapter H180 of the Continuing Consolidation of the Statutes of Manitoba.

Repeal

17          The Human Tissue Act, being chapter H180 of the Continuing Consolidation of the Statutes of Manitoba, is repealed.

Commencement of Act

18          This Act comes into force on the day it receives the royal assent.

 

 


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