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The Testing of Bodily Fluids and Disclosure Act
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C.C.S.M. c. T55

The Testing of Bodily Fluids and Disclosure Act

(Assented to June 12, 2008)

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

DEFINITIONS

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 »)

"bodily fluid" means a natural bodily fluid or secretion. (« fluide corporel »)

"communicable disease" means a disease or condition designated as a communicable disease by regulation. (« maladie transmissible »)

"court" means the Court of Queen's Bench of Manitoba. (« tribunal »)

"drawing facility" means a facility or a class of facilities designated by regulation where samples of bodily fluids may be taken under the authority of a testing order. (« établissement chargé des prélèvements »)

"expedited testing order" means a testing order made by a judicial justice of the peace under section 6. (« ordonnance de dépistage accélérée »)

"judicial justice of the peace" means a person appointed as a judicial justice of the peace under The Provincial Court Act. (« juge de paix judiciaire »)

"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 »)

"notice of objection" means a notice of objection referred to in section 7. (« avis d'opposition »)

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

"standard testing order" means a testing order made by the court under section 13. (« ordonnance de dépistage type »)

"telecommunication" includes the use of a telephone, e-mail or fax. (« télécommunication »)

"testing facility" means a facility designated by regulation for the testing of bodily fluids taken under the authority of a testing order. (« établissement chargé des analyses »)

"testing order" means an order made under section 6 or 13 requiring a source individual to provide a sample of a bodily fluid for testing purposes. (« ordonnance de dépistage »)

APPLYING FOR A TESTING ORDER

When application may be made

2(1)        A person may apply for a testing order if he or she has come into contact with a bodily fluid of another person

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

(b) while providing emergency health services or first aid;

(c) while performing his or her duties as a firefighter, emergency medical response technician or peace officer; or

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

Application on behalf of another person

2(2)        If the person who came into contact with the bodily fluid is not able to make the application, another person may make the application on behalf of that person.

Application requirements

3           An application for a testing order must

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

(b) give as much detail as possible respecting the contact with the bodily fluid, including the area of the applicant's body where the contact occurred and any other relevant information, such as whether the applicant's skin was cut or punctured at the point of contact;

(c) include the name and address of the applicant's physician, if the applicant wants the test results to be sent to his or her physician; and

(d) meet any other requirements prescribed by regulation.

EXPEDITED TESTING ORDERS

Application without notice

4(1)         An application for an expedited testing order is to be made to a judicial justice of the peace, without notice, in the manner prescribed by regulation.

Submitting application

4(2)         An application for an expedited testing order may be submitted in person or by telecommunication in accordance with section 5.

Evidence under oath

4(3)         Evidence adduced in support of an application for an expedited testing order must be given under oath.

Telecommunication of sworn documents

5(1)         When applying by telecommunication for an expedited testing order, a person must

(a) have in his or her possession any document that is to be used in support of the application;

(b) communicate the content of the document to the judicial justice of the peace in a manner satisfactory to the justice; and

(c) transmit the document to the judicial justice of the peace as soon as practicable in the manner prescribed by regulation.

Evidence received by telephone

5(2)        The judicial justice of the peace may administer an oath to a person and receive the person's evidence by telephone if the oath and evidence are recorded verbatim.

No requirement to wait for documents

5(3)         A judicial justice of the peace does not need to wait for the transmission of a document under clause (1)(c) before deciding whether to make the order.

When expedited testing order may be made

6(1)        A judicial justice of the peace may make an expedited testing order if he or she is satisfied

(a) that the applicant came into contact with a bodily fluid of the source individual in one of the circumstances set out in subsection 2(1); and

(b) based on criteria prescribed by regulation, that the specific nature of the applicant's contact with the bodily fluid involved a risk of exposure to a micro-organism or pathogen causing a communicable disease that warrants the making of an expedited testing order.

Contents of expedited testing order

6(2)        An expedited testing order must be in a form approved by the Minister of Justice and must

(a) require the source individual to

(i) go to a drawing facility, from a list of facilities set out in the order, within 48 hours after being served with the order or by a later deadline specified in the order,

(ii) give the order or a copy of it to staff at the drawing facility,

(iii) allow staff at the drawing facility to take a sample of a specified bodily fluid from the source individual, and

(iv) give staff at the drawing facility the name and address of his or her physician if the source individual wants the test results to be sent to that physician,

(b) require staff at the drawing facility to ensure that

(i) a qualified staff member takes a sample of the bodily fluid specified in the order from the source individual, and

(ii) the sample and a copy of the order are sent to the testing facility specified in the order; and

(c) require staff at the testing facility to perform the tests specified in the order on the sample and to send the results of the tests, along with a copy of the testing order, to

(i) the physician for the applicant and the physician for the source individual, if known, and

(ii) when the physician for the applicant or source individual is not known, to a medical officer of health.

Preparing notice of objection

7           A judicial justice of the peace who makes an expedited testing order must also arrange for the preparation of a notice of objection that

(a) is in a form approved by the Minister of Justice;

(b) contains statements to the following effect in bold print:

(i) the order will become invalid if the source individual, or a person acting on his or her behalf, registers an objection to the order within 24 hours after the order is served, or by a later deadline specified in the notice of objection,

(ii) a person may register an objection to the order by telephoning a number contained in the notice, or by appearing in person at an office of the Provincial Court and indicating to court staff that he or she objects to the order,

(iii) the order will be binding and cannot be challenged or appealed if no objection to it is registered within 24 hours after the order is served, or by a later deadline specified in the notice of objection;

(c) sets out the penalties that may be imposed for failing to comply with the order; and

(d) contains any other information prescribed by regulation.

S.M. 2010, c. 33, s. 67.

Order and notice of objection to be served

8(1)         The expedited testing order and notice of objection must be served on the source individual in accordance with the regulations.

Filing information re service

8(2)        The applicant or the person who served the documents referred to in subsection (1) must file in the Provincial Court information about the service prescribed by regulation.

When expedited testing order effective

9(1)        Subject to subsection (2), an expedited testing order takes effect 24 hours after it is served on the source individual.

Service of expedited testing order

9(2)        The applicant must use his or her best efforts to serve the order on the source individual as soon as possible after the order is made.

Deadline for service

9(3)        An expedited testing order must be served on the source individual within 21 days after it was made. An expedited testing order that is served after that period is invalid.

Registering objection invalidates order

10          An expedited testing order becomes invalid if an objection to the order is registered within 24 hours after the order is served, or by a later deadline specified in the notice of objection.

STANDARD TESTING ORDERS

Who may apply for a standard testing order

11(1)       The following persons may apply to the court for a standard testing order:

(a) a person who obtained an expedited testing order that became invalid because the source individual registered an objection to the order within 24 hours after being served with it, or because the order was not served before the deadline set out in subsection 9(3);

(b) a person whose application for an expedited testing order was denied;

(c) a person who

(i) has come into contact with a bodily fluid of another person, and

(ii) has not applied for an expedited testing order in respect of that contact.

Hearing on urgent basis

11(2)       The court must hear an application for a standard testing order on an urgent basis.

Service on source individual

11(3)       Subject to subsection (4), the applicant must serve the notice of application on the source individual at least four days before the court is to hear the application.

Application without notice

11(4)       An applicant may apply for a standard testing order without notice to the source individual if the applicant satisfies the court that giving notice to the source individual is impossible or impractical.

New hearing

12(1)       The hearing of an application for a standard testing order is a new hearing, even if a judicial justice of the peace has already dealt with the same contact with the bodily fluid in an application for an expedited testing order.

Submissions

12(2)       At the hearing of an application for a standard testing order, the court may hear evidence and submissions on behalf of the applicant and source individual as to whether a standard testing order should be made.

Applicant to provide physician's report

12(3)       The applicant must submit a report from a physician who met with the applicant after the applicant came into contact with the bodily fluid.  The physician's report must

(a) include an assessment of the risks posed to the applicant's health as a result of contact with the bodily fluid;

(b) include an assessment of whether analysis of the applicant's own bodily fluids would accurately determine, in a timely manner, whether the applicant is infected with a communicable disease;

(c) assess whether a testing order would provide information that would enable the applicant to take measures to decrease or eliminate the risk to his or her health as a result of contact with the bodily fluid; and

(d) meet any other requirements prescribed by regulation.

Evidence from source individual

12(4)       If the source individual takes the position that taking a sample of his or her bodily fluid would cause a significant risk to his or her physical or mental health, the source individual must provide the court with evidence from a physician or other health professional specifying the nature of that risk.

When court may make standard testing order

13(1)       Subject to subsection (2), the court may make a standard testing order if it is satisfied

(a) that the applicant came into contact with a bodily fluid of the source individual in one of the circumstances set out in subsection 2(1);

(b) that there are reasonable grounds to believe that the applicant may have become infected with a micro-organism or pathogen that causes a communicable disease as a result of the contact;

(c) that an analysis of the applicant's bodily fluids would not accurately determine, in a timely manner, whether the applicant is infected with a micro-organism or pathogen that causes a communicable disease;

(d) that the information to be obtained from the proposed testing order cannot reasonably be obtained in any other manner; and

(e) having regard to the medical evidence submitted at the hearing, that a testing order would provide information that would enable the applicant to take measures to decrease or eliminate the risk to his or her health as a result of contact with the bodily fluid.

When no order may be made

13(2)       The court must not make a standard testing order if the source individual contests the application and satisfies the court that taking a sample of his or her bodily fluid would pose a significant risk to his or her physical or mental health.

Content of standard testing order

13(3)       A standard testing order must contain all the provisions set out in subsection 6(2), as well as any other terms that the court considers necessary.

Standard testing order effective on service

13(4)       A standard testing order takes effect when it is served on the source individual.

Appeal with leave on contested application

14(1)       The decision of the court on a contested application for a standard testing order may be appealed by the applicant or the source individual to the Court of Appeal, with leave granted by a judge of that court.

Appeal on uncontested application

14(2)       The decision of the court on an uncontested application for a standard testing order may be appealed to the Court of Appeal

(a) by the applicant, with leave granted by a judge of that court; or

(b) by the source individual, without leave.

Appeal acts as stay

14(3)       The filing of an appeal by the source individual operates as a stay of the order until leave is refused or until the making of the order is confirmed on appeal.

TAKING AND TESTING SAMPLES

Responsibilities of staff taking sample

15          Staff at the drawing facility where a source individual goes to have a sample of his or her bodily fluid taken under the authority of a testing order

(a) must not use or deal with the sample except as permitted or required by the testing order; and

(b) must send the sample and a copy of the testing order to the testing facility specified in the testing order.

Responsibilities of staff at testing facility

16          When a testing facility receives a sample of a bodily fluid taken under the authority of a testing order, its staff must

(a) conduct the tests specified in the order;

(b) ensure that the sample is not used for any purpose other than the testing required by the testing order;

(c) ensure that the sample is retained for the prescribed period;

(d) not disclose the test results except in accordance with this Act or The Public Health Act; and

(e) send the test results and a copy of the testing order to

(i) the physicians for the applicant and the source individual, if known, and

(ii) a medical officer of health, if the physician for the applicant or source individual is not known.

DISCLOSING TEST RESULTS

Providing test results

17          As soon as reasonably possible after receiving the test results from the testing facility,

(a) the physician for the applicant and the physician for the source individual must each communicate the test results to their patient; and

(b) the medical officer of health must communicate the test results to the applicant or source individual whose physician is not known;

in accordance with approved medical practice.

Results not admissible

18          The test results of a sample of a bodily fluid obtained under the authority of a testing order are not admissible as evidence in any legal proceeding, except in accordance with this Act.

Confidentiality of information

19(1)       Except when permitted under this Act, no person shall use or disclose any information about an applicant or a source individual that comes to the person's knowledge under this Act .

Permitted disclosure of information

19(2)       A person may disclose information described in subsection (1) if the disclosure is

(a) required to administer this Act;

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

(c) required by law;

(d) requested or approved by the person whom the information is about;

(e) made on a need-to-know basis

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

(ii) between solicitor and client,

(iii) in the case of information pertaining to a person who is under 16 years of age, to a parent or guardian of that person, or

(iv) in circumstances prescribed by regulation.

Disclosure of information in legal proceedings

19(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 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 that 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 whom the information is about.

MISCELLANEOUS PROVISIONS

Offence and penalty

20(1)       Every person who contravenes a provision of this Act or a testing order is guilty of an offence and is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $10,000, or imprisonment for a term of not more than six months, or both; and

(b) in the case of a corporation, to a fine of not more than $25,000.

Contravention continues

20(2)       When a contravention continues for more than one day, the person is guilty of a separate offence for each day the offence continues.

Limitation

20(3)       A prosecution under this Act may be commenced not later than two years after the day the alleged offence was committed.

Defences to breach of expedited testing order

21          It is a defence in a prosecution for failing to comply with an expedited testing order if the accused establishes

(a) that he or she was unable to register an objection to the expedited testing order within 24 hours after being served due to physical or mental incapacity; or

(b) that he or she was unable to comply with the expedited testing order due to physical or mental incapacity.

Costs

22          The minister is not responsible for any costs of the applicant or source individual unless otherwise provided for in the regulations.

Act prevails

23(1)       If a provision of this Act is inconsistent or in conflict with a provision of The Freedom of Information and Protection of Privacy Act, The Personal Health Information Act or any other enactment, the provision of this Act prevails.

No access under Freedom of Information Act

23(2)       No person has a right of access under Part 2 of The Freedom of Information and Protection of Privacy Act to any record or information created, obtained or maintained under this Act.

Protection from liability

24          No action or proceeding may be brought against a person acting under the authority of this Act for anything done or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act.

Regulations

25          The Lieutenant Governor in Council may make regulations

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

(b) designating facilities or classes of facilities as drawing facilities and testing facilities;

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

(d) respecting applications for testing orders, including the transmission of documents when an application for an expedited testing order is made by telecommunication;

(e) prescribing criteria respecting exposures to bodily fluids that warrant the making of an expedited testing order;

(f) respecting the taking and analysis of samples of bodily fluids obtained under the authority of a testing order;

(g) prescribing information to be contained in a notice of objection;

(h) respecting the registration of objections to expedited testing orders;

(i) respecting the service of documents under this Act, including information that must be filed in the Provincial Court for the purpose of subsection 8(2);

(j) respecting the physician's report required by subsection 12(3), including prescribing

(i) the examination and testing, including base line testing, that a physician must or may conduct in order to prepare the report, and

(ii) the counselling or treatment that must or may be provided by the physician preparing the report;

(k) respecting when the applicant or source individual may not be required to pay costs arising out of an application for a testing order;

(l) respecting the handling, retention and destruction of samples of bodily fluids;

(m) prescribing circumstances when confidential information under this Act may be disclosed;

(n) defining words and phrases that are used but not defined in this Act;

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

C.C.S.M. reference

26          This Act may be referred to as chapter T55 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

27          This Act comes into force on a day to be fixed by proclamation.

NOTE: S.M. 2008, c. 19, was proclaimed in force September 15, 2009.