BILL 61
An Act to Amend the Human Tissue Gift Act
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Short title
1 This Act may be cited as Avery’s Law.
2 Section 1 of the Human Tissue Gift Act, chapter 113 of the Revised Statutes, 2014, is amended by adding the following definitions in alphabetical order:
“Minister” means the Minister of Health and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)
“Registry” means the Registry established or designated under section 4. (registre)
“substitute decision-maker”, in relation to a person, means a person who is authorized under section 1.1 to consent or refuse consent on behalf of the person. (mandataire spécial)
3 The Act is amended by adding after section 1 the following:
Substitute decision-maker
1.1( 1) A substitute decision-maker is, in relation to a person, a person determined in the following order of priority:
athe person’s spouse or common-law partner;
bif 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;
cif there are no children, or if none of the children is readily available, either one of the person’s parents;
dif there are no parents, or if no parent is readily available, any one of the person’s brothers or sisters;
eif 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
fif 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.
1.1( 2) For greater certainty, if two or more persons who are not described in the same paragraph of subsection (1) claim the authority to give or refuse consent under that subsection, the person under the paragraph occurring first in that subsection prevails.
1.1( 3) A person referred to in subsection (1) may not act as a substitute decision-maker unless the person
aexcepting a spouse, has been in personal contact with the person over the preceding 12-month period or has been granted a court order to shorten or waive the 12-month period;
bis willing to assume the responsibility for making the decision;
cknows of no person of a higher order of priority who is able and willing to make the decision; and
dmakes a statement in writing certifying the relationship to the person and the facts and beliefs set out in paragraphs (a) to (c).
4 The Act is amended by adding the heading “DONATION AFTER DEATH” before section 4.
5 The heading “Consent by person for use of body after death” preceding section 4 of the Act is repealed and the following is substituted:
Registry established or designated
6 Section 4 of the Act is repealed and the following is substituted:
4 The Minister shall establish or designate a Registry to record consents and refusals made under this Act respecting the use of a person’s body or a specified part or parts of a person’s body after death for therapeutic purposes.
7 The heading “Consent by others for use of body after death” preceding section 5 of the Act is repealed and the following is substituted:
Consent or refusal may be provided to Registry
8 Section 5 of the Act is repealed and the following is substituted:
5 A person may consent or refuse that the person’s body or a specified part or parts of the person’s body be used after death for therapeutic purposes by providing information respecting the consent or refusal to the Registry in the manner prescribed by regulation.
9 The Act is amended by adding after section 5 the following:
Effect of consent or refusal recorded in Registry
5.1( 1) Subject to section 5.7, on the death of a person who has given consent under section 5, 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 therapeutic purposes, except that no person shall act on a consent given under section 5
aif the person has reason to believe that the consent was subsequently withdrawn, or
bif 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.
5.1( 2) Subject to section 5.7, if a person has refused that the person’s body or a specified part or parts of the person’s body be used after death for therapeutic purposes under section 5, the person’s body or the specified part or parts of the body shall not be used for therapeutic purposes.
5.1( 3) A consent given under this Act before the coming into force of this section may be acted upon in accordance with this Act as it existed immediately before the coming into force of this section.
Medical practitioner to check Registry
5.2 A medical practitioner shall, before removing or using any part of the body of a deceased person for therapeutic purposes, check the Registry to determine whether a decision made under section 5 is on record in the Registry.
Deemed consent for use after death for therapeutic purposes
5.3( 1) Subject to sections 5.4 to 5.7, if a person has not made a consent or refusal under section 5, the person shall be deemed to consent to the use of the person’s body or the removal and use of any part or parts of the person’s body after death for therapeutic purposes.
5.3( 2) A deemed consent under subsection (1) is full authority for the use of the person’s body or the removal and use of any part or parts of the person’s body after death for therapeutic purposes.
Consent not deemed if person lacked capacity
5.4( 1) A person is not deemed to consent under section 5.3 if the person has died and for a significant period before dying lacked the capacity to make a decision respecting the use of the person’s body after death.
5.4( 2) For the purposes of subsection (1), “significant period” means a sufficiently long period as would lead a reasonable person to conclude that it would be inappropriate for consent to be deemed to have been given.
5.4( 3) Nothing in this section affects the ability of a substitute decision-maker to give consent on behalf of the person.
Consent not deemed if person not ordinarily resident
5.5( 1) A person is not deemed to consent under section 5.3 if the person has died and the person was not ordinarily resident in New Brunswick for a period of at least 12 months immediately before dying.
5.5( 2) Nothing in this section affects the ability of a substitute decision-maker to give consent on behalf of the person.
Consent not deemed if person under age of 19 years
5.6( 1) A person is not deemed to consent under section 5.3 if the person was under the age of 19 years at the time of death.
5.6( 2) Nothing in this section affects the ability of a substitute decision-maker to give consent on behalf of the person.
Consent or refusal by substitute decision-maker
5.7( 1) If a substitute decision-maker provides information that would lead a reasonable person to conclude that a person would have made a different decision respecting the use of the person’s body or a specified part or parts of the person’s body after death for therapeutic purposes than the decision recorded in the Registry or deemed under section 5.3, the substitute decision-maker may consent or refuse on behalf of the person in accordance with that information.
5.7( 2) A consent under subsection (1) 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 after death for therapeutic purposes, except that no person shall act on a consent given under this section if the person
ahas knowledge of an objection by the deceased person more recent than the information provided by the substitute decision-maker,
bhas knowledge of an objection by a person of the same or closer relationship to the deceased person than the person who gave consent, or
chas 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.
Consent for use after death for medical education or scientific research
5.8( 1) A person may consent that the person’s body or a specified part or parts of the person’s body be used after death for the purposes of medical education or scientific research
aby express personal consent, either
( i) in writing at any time, or
( ii) orally in the presence of at least two witnesses during the person’s last illness; or
bby consent given by a substitute decision-maker.
5.8( 2) For greater certainty, a deemed consent under section 5.3 does not include consent for the purposes of medical education or scientific research.
10 Section 6 of the Act is amended by adding “or deemed under section 5.3” after “obtained”.
11 Section 8 of the Act is amended
ain subsection (1) by striking out “for therapeutic purposes or”;
bin subsection (2)
( i) in paragraph (a) by striking out “for therapeutic purposes or”;
( ii) in paragraph (b) by striking out “for therapeutic purposes or”;
cin subsection (4) by striking out “Minister of Health” and substituting “Minister”.
12 Section 9 of the Act is repealed and the following is substituted:
9 If a gift after death under this Act cannot for any reason be used for any of the purposes specified in the consent or the deemed consent, the subject matter of the gift and the body to which it belongs shall be dealt with and disposed of as if no consent had been given or deemed to have been given.
13 The Act is amended by adding the heading “GENERAL” before section 10.
14 The Act is amended by adding after section 11 the following:
Regulations
12 The Lieutenant-Governor in Council may make regulations
arespecting the Registry, including
( i) the process for recording information in the Registry, and
( ii) who may access or edit information in the Registry;
brespecting the manner by which persons may provide information respecting consents or refusals to the Registry for the purposes of section 5.
Commencement
15 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.