The following definitions apply in this Act. 2004, c.H-12.5, s.1
“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)
A transplant from one living human body to another living human body may be done in accordance with this Act, but not otherwise. 2004, c.H-12.5, s.2
2004, c.H-12.5, s.3
A 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.
Despite 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.
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 that tissue from the body of the person who gave the consent.
2004, c.H-12.5, s.4
A person who has attained the age of 19 years may consent 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, either
(a) in writing at any time, or
(b) orally in the presence of at least two witnesses during his or her last illness.
Despite subsection (1), a consent given under this section by a person who had not attained the age of 19 years is still valid if the person who acted on it had no reason to believe that the person who gave it had not attained the age of 19 years.
On 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 on 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.
2004, c.H-12.5, s.5
If 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, the following persons may consent in writing, or orally in the presence of at least two 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:
(a) the person’s spouse or common-law partner;
(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;
(c) if there are no children, or if none of the children is readily available, either one of the person’s parents;
(d) if there are no parents, or if no parent is readily available, any one of the person’s brothers or sisters;
(e) if there are no brothers or sisters, or none of the brothers or sisters is readily available, any other of the person’s next of kin who has attained the age of 19 years; or
(f) if there is no next of kin, or if no next of kin is readily available, the person lawfully in possession of the body other than, if the person died in hospital, the regional health authority.
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.
On 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.
If, 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 the directions that the coroner thinks proper respecting the removal of part or parts of the body after the death of the person, and every direction has the same force and effect as if it had been made after death under section 5 of the Coroners Act. 2004, c.H-12.5, s.6
2004, c.H-12.5, s.7; 2006, c.22, s.1
For the purposes of post-mortem removal of a human body part or parts for implantation in a living human body, the fact of death must be determined in accordance with accepted medical practice by
(a) at least two medical practitioners, when the fact of death is determined in accordance with neurological criteria, or
(b) one medical practitioner, when the fact of death is determined by other criteria.
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.
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.
2004, c.H-12.5, s.8; 2006, c.16, s.88
If 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.
A request under subsection (1) shall not be made if 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.
If 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.
A regional health authority shall provide to the Minister of Health the information in the form that the Minister may request for the purpose of monitoring compliance with this section.
2004, c.H-12.5, s.10
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.
A person who knowingly violates or fails to comply with subsection (1) commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category J offence.
No person commits an offence under subsection (2) if that person, for a valuable consideration, participates in, or performs a service necessarily incidental to, the process by which 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.
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. 2004, c.H-12.5, s.11