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The Human Tissue Act

S.M. 1987-88, c. 39

The Human Tissue 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,

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

"nearest relative" means

(a) a spouse; or

(b) if there is no spouse, or if the spouse 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")

"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")

"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")

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 medical 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 consents 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.

Direction after death by nearest relative.

3(1)

Where 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; or

(c) who is under 16 years of age; dies, the person's nearest relative or, if there is no nearest relative or the nearest relative is unavailable, the person lawfully in possession of the body or the Inspector of Anatomy, as the case may be, may direct that the whole body, or any tissue or specified tissue from the body, may be used for therapeutic purposes or for purposes of medical education or medical research.

"Person lawfully in possession" defined.

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 where death imminent and inevitable.

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 as described in section 2 and 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 medical research.

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 medical 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 consents to the use of the body or the removal and use of the tissue.

Consideration by physician.

4(1)

Upon the death of a person in respect of whom no direction has been given under section 2 or 3 or in respect of whom a direction has been given under section 2 but cannot be acted upon by virtue of clause 2(3)(b), the last physician to attend the deceased person before death shall, subject to subsection (3), consider whether

(a) the condition of the body of the deceased person and of the tissue thereof;

(b) the need for the use of the body of the deceased person or any tissue from the body for therapeutic purposes; and

(c) the emotional and physical condition of the survivors of the deceased person; are such that it is appropriate to request permission, in accordance with subsection (2), to use the body of the deceased person for therapeutic purposes or to remove tissue from the body to be used for therapeutic purposes.

Request after consideration.

4(2)

A physician who upon consideration in accordance with subsection (1) in respect of a deceased person determines that it is appropriate to do so shall, as soon as practicable after the death of the person but subject to subsection (3), request permission or cause permission to be requested from the deceased person's nearest relative to use the body of the deceased person for therapeutic purposes or to remove tissue from the body to be used for therapeutic purposes.

Exception.

4(3)

This section does not apply where the last physician to attend a person before death has reason to believe

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

(b) that ah 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 consents to the request and the proposed use of the body or the proposed removal of tissue under subsection (2).

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 medical 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 medical 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.

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).

Notification of post mortem.

7(1)

Where under The Fatality Inquiries Act a medical examiner or other person directs that the body of a deceased person be given a post mortem examination that will require the opening and examination of all the cavities of the body, the medical examiner or other person shall forthwith cause a representative of the eye bank to be notified of the direction.

Removal of eye tissue.

7(2)

Where a representative of the eye bank who has received a notification under subsection (1) is satisfied that

(a) eye tissue of the deceased is suitable for therapeutic purposes; and

(b) there is a reasonable possibility that the eye tissue, if removed, will be used for therapeutic purposes; the representative may, subject to subsection (3), cause the eye tissue to be removed from the body and used for therapeutic purposes.

Restrictions on removal and use.

7(3)

The authority under this section to cause the removal and use of eye tissue from a body applies 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, but the representative of the eye bank shall not cause the removal and use of eye tissue under this section where the representative has reason to believe

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

(b) that the nearest relative of the deceased objects thereto.

Locating nearest relative.

7(4)

For the purpose of determining whether or not the nearest relative of a deceased person objects to the removal and use of eye tissue within the meaning of clause (3)(b), the representative of the eye bank shall make a reasonable effort to locate the nearest relative, but a failure to locate the nearest relative after such a reasonable effort does not prevent the exercise of the authority to cause the removal and use of the eye tissue under this section.

"Eye bank" defined.

7(5)

In this section, "eye bank" means the Lions Eye Bank of Manitoba and Northwest Ontario Inc.

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 the making of a determination of death under subsection (1) in respect of a proposed transplant of tissue shall not participate in the transplant operation.

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 medical 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 medical 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.

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 stepsister, 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 stepsister, 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.

Disclosure prohibited.

13

No person shall disclose the identity of another person

(a) who has given or refused to give a direction or consent under this Act; or

(b) with respect to whom a direction or consent has been given or refused under this Act; or

(c) who is a recipient or potential recipient of tissue by way of transplant under this Act; unless that other person consents to the disclosure, or the disclosure is required by law or is made for the purposes of hospital administration or bona fide medical research.

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.

Prohibited disposal or acquisition.

15(1)

Subject to subsection (2), no person shall, for any purpose, dispose of or acquire any dead human body, or any tissue from a human body whether living or dead, except in accordance with this Act or The Anatomy Act or as otherwise provided by law.

Sale, purchase, trafficking prohibited.

15(2)

No person shall, for any purpose,

(a) sell or buy any dead human body, or any tissue from a human body whether living or dead; or

(b) traffic in dead human bodies or tissue from human bodies whether living or dead; notwithstanding that the selling or buying or trafficking, as the case may be, is otherwise in accordance with this Act or The Anatomy Act or any other law.

Exception as to remuneration.

15(3)

Nothing in this section prohibits the payment of reasonable remuneration to a physician or other health professional for services rendered for the purpose of carrying out a direction or complying with a consent under this Act.

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.

Offence and penalty.

15(5)

Any person who contravenes or fails to observe a provision of this section is guilty of an offence and liable on summary conviction to a fine of not more than $5, 000. or to imprisonment for a term of not more than six months or to both.

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.