chapter 26
An Act to require the taking and analysing of blood samples to protect victims of crime, emergency service workers, good Samaritans and other persons and to make consequential amendments to the Health Care Consent Act, 1996 and the Health Protection and Promotion Act
Assented to December 20, 2006
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Definitions
1. In this Act,
“analyst” means a medical laboratory technologist at the Ministry of Health and Long-Term Care’s Central Public Health Laboratory; (“analyste”)
“applicant” means a person who applies to a medical officer of health under section 2; (“requérant”)
“Board” means the Consent and Capacity Board continued under the Health Care Consent Act, 1996; (“Commission”)
“listed communicable disease” means,
(a) Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome (HIV/AIDS),
(b) Hepatitis B,
(c) Hepatitis C, or
(d) a prescribed disease; (“maladie transmissible désignée”)
“physician” means a member of the College of Physicians and Surgeons of Ontario; (“médecin”)
“prescribed” means prescribed by regulations made under this Act; (“prescrit”)
“regulations” means regulations made under this Act; (“règlements”)
“respondent” means the person who the applicant identifies as a person with whose bodily substance the applicant came into contact. (“intimé”)
Application for blood sample and analysis
2. Any person may apply to a medical officer of health to have a blood sample of another person analysed if the applicant came into contact with a bodily substance of the other person in any of the following circumstances:
1. As a result of being the victim of a crime.
2. While providing emergency health care services or emergency first aid to the person, if the person was ill, injured or unconscious as a result of an accident or other emergency.
3. In the course of his or her duties, if the person belongs to a prescribed class.
4. While being involved in a prescribed circumstance or while carrying out a prescribed activity.
Request for voluntary blood sample and analysis
3. (1) Upon the receipt of an application by a person under section 2 that meets the requirements of the regulations, the medical officer of health shall attempt to contact the respondent and request that the respondent provide either,
(a) a blood sample for the purpose of having it analysed in accordance with the regulations; or
(b) other evidence of his or her seropositivity respecting the listed communicable diseases that is in accordance with the regulations.
Notice of possible referral to Board
(2) Where the medical officer of health contacts the respondent under subsection (1), the medical officer of health shall advise the respondent that if he or she fails to provide a blood sample or other evidence voluntarily, the application will be referred to the Board and that an order to provide a blood sample may be made.
Failure to obtain sample
(3) If the respondent fails to provide a blood sample or other evidence as requested by the medical officer of health by the end of the second day after the medical officer of health received the application, or if, despite reasonable efforts, the respondent cannot be located in that time, the medical officer of health shall refer the application to the Board.
Time extended
(4) If the deadline under subsection (3) falls on a Saturday or a Sunday or other holiday, the deadline shall be extended by one day.
Hearing by Board
4. (1) Upon the referral of an application under section 3, the Board shall hold a hearing to determine whether the respondent should be ordered to provide a blood sample for analysis.
Parties
(2) The parties to the hearing are the applicant, the respondent and any other persons specified by the Board.
Timing of hearing
(3) Subject to subsection (4) and despite subsection 75 (2) of the Health Care Consent Act, 1996, the Board shall commence and conclude the hearing within seven days after it receives the referral of the application.
Extension
(4) The Board may commence or conclude the hearing within a longer period than the seven days required by subsection (3) if all the parties to the hearing consent to the extension.
Decision of Board
5. (1) Upon the conclusion of the hearing, the Board shall decide whether the respondent should be ordered to provide a blood sample for analysis and it may decide that the respondent should be so ordered only if the Board believes, on reasonable and probable grounds, that,
(a) the applicant came into contact with a bodily substance of the respondent in a circumstance described in section 2;
(b) the applicant may have become infected with a virus that causes a listed communicable disease as a result of coming into contact with the bodily substance;
(c) by reason of the lengthy incubation periods for the listed communicable diseases and the methods available for ascertaining the presence in the human body of the viruses that cause them, an analysis of the applicant’s blood would not accurately determine, in a timely manner, whether the applicant had become infected with a virus that causes the listed communicable disease as a result of coming into contact with the bodily substance;
(d) taking a blood sample from the respondent would not endanger his or her life or health;
(e) the applicant has submitted to the medical officer of health a physician report, made within seven days after the applicant came into contact with the bodily substance of the respondent, that assesses the risk to the health of the applicant as a result of that contact; and
(f) having regard to the physician report required by clause (e), the taking and analysis of a blood sample from the respondent is necessary to decrease or eliminate the risk to the health of the applicant as a result of the applicant’s having come into contact with the bodily substance.
Order
(2) If the Board decides that the respondent should be ordered to provide a blood sample for analysis, the Board shall, at the same time as it makes its decision, make an order,
(a) requiring the respondent to allow a physician named in the order or a person belonging to a prescribed class of persons to take a blood sample from the respondent, by the date or within the time specified in the order;
(b) requiring the physician or other person to whom the respondent goes for the taking of a blood sample to take the blood sample and to deal with it in the manner specified in the regulations and the order, including to deliver it to an analyst; and
(c) requiring the analyst to whom the sample is delivered,
(i) to analyse the blood sample and report on the results of the analysis in accordance with the regulations and the requirements specified in the order,
(ii) to make reasonable attempts to deliver the report on the results of the analysis to the applicant’s physician,
(iii) to make reasonable attempts to deliver the report on the results of the analysis to the respondent’s physician, if requested by the respondent,
(iv) to make reasonable attempts to deliver to the applicant,
(A) a notice that the analyst delivered the report on the results of the analysis to the applicant’s physician or made reasonable attempts to do so, and
(B) a recommendation that the applicant consult his or her physician for a proper interpretation of the results of the analysis, and
(v) if the respondent requested that the report on the results of the analysis be delivered to his or her physician, to make reasonable attempts to deliver to the respondent,
(A) a notice that the analyst delivered the report on the results of the analysis to the respondent’s physician or made reasonable attempts to do so, and
(B) a recommendation that the respondent consult his or her physician for a proper interpretation of the results of the analysis.
When decision to be made
(3) Despite subsection 75 (3) of the Health Care Consent Act, 1996, the Board shall make its decision within one day after the day the hearing ends, but if that day falls on a Saturday or a Sunday or other holiday, the deadline shall be extended by one day.
Notice of decision, order
(4) The Board shall, within the time provided in subsection (3), provide each party or the party’s counsel or agent and the medical officer of health who referred the application to the Board with a copy of the Board’s decision and of any order made by the Board.
Decision final
(5) Despite section 80 of the Health Care Consent Act, 1996, the decision of the Board is final.
Court order for compliance
6. If a respondent does not comply with an order made by the Board under section 5 by the date or within the time specified in the order, the applicant may apply to a judge of the Superior Court of Justice for an order requiring the respondent to,
(a) comply with the order of the Board within the time specified in the order of the court; and
(b) take whatever other action the court considers appropriate in the circumstances.
Obligations re taking and analysing sample
7. (1) A person who takes a blood sample pursuant to a request made by a medical officer of health under section 3 or an order of the Board under section 5 shall not use it in any way except as permitted by the regulations or required by the order.
Same
(2) An analyst who receives a blood sample for analysis from a medical officer of health under section 3 or pursuant to an order of the Board under section 5,
(a) shall ensure that the sample is not used for any purpose other than its analysis in accordance with the regulations and the reporting of results as required by and in accordance with the regulations and as described in clause 5 (2) (c);
(b) shall not release the sample to any person other than in accordance with the regulations, or for the purpose of having a person acting on behalf of the analyst retain the sample as long as no person other than the analyst has access to the sample; and
(c) despite the Personal Health Information Protection Act, 2004, shall not disclose the results of the analysis of the blood sample to any person other than in accordance the regulations and the order.
Application of Health Care Consent Act, 1996
(3) The Health Care Consent Act, 1996 does not apply to the taking of a blood sample pursuant to an order of the Board.
Results of analysis not admissible in criminal proceeding
8. The results of an analysis done pursuant to a request made by a medical officer of health under section 3 or an order of the Board under section 5 are not admissible in evidence in a criminal proceeding.
Protection from personal liability
9. (1) No action or other proceeding for damages or otherwise shall be instituted against a medical officer of health, an associate medical officer of health or an acting medical officer of health for any act done in good faith in the execution or the intended execution of any duty or power under this Act or for any alleged neglect or default in the execution in good faith of any such duty or power.
Exception
(2) Subsection (1) does not apply to prevent an application for judicial review.
Board of health not relieved of liability
(3) Subsection (1) does not relieve a board of health from liability for damage caused by the negligence of, or action without authority by, a person referred to in subsection (1), and a board of health is liable for such damage in the same manner as if subsection (1) had not been enacted.
Protection from liability for complying with order to take or analyse sample, etc.
(4) No action or other proceeding for damages or otherwise shall be instituted against a person for any act done in good faith in compliance with an order under clause 5 (2) (b) or (c).
Protection from liability for reports
(5) No action or other proceeding shall be instituted against a person for making, in good faith, a physician report for the purposes of clause 5 (1) (e) or any other report referred to or required by this Act or the regulations.
No physician-patient relationship
(6) Nothing in this Act and nothing done under this Act creates a physician-patient relationship or other relationship of trust between a medical officer of health and an applicant or respondent.
Offence
10. (1) Every person who fails to obey an order of the Board made under this Act is guilty of an offence.
Same
(2) Every person who contravenes or fails to comply with a requirement of this Act or of a regulation made under this Act is guilty of an offence.
Penalty
(3) Every person who is guilty of an offence under this Act is liable on conviction to a fine of not more than $5,000 for every day or part of a day on which the offence occurs or continues.
Regulations
11. (1) The Minister of Community Safety and Correctional Services may make regulations,
(a) prescribing diseases that are listed communicable diseases for the purposes of this Act;
(b) defining “victim of a crime” for the purpose of paragraph 1 of section 2;
(c) prescribing classes of persons for the purpose of paragraph 3 of section 2;
(d) prescribing circumstances and activities for the purpose of paragraph 4 of section 2;
(e) governing an application to a medical officer of health under section 2 and the actions taken by a medical officer of health pursuant to an application;
(f) prescribing other evidence of seropositivity respecting the listed communicable diseases that may be provided pursuant to a request made by a medical officer of health under section 3 and governing the obtaining and provision of that evidence;
(g) governing the taking and analysis of blood samples pursuant to a request made by a medical officer of health under section 3 or an order of the Board under section 5, including requiring reports on the taking of blood samples and on the analysis and governing the reports;
(h) governing the physician report required by clause 5 (1) (e), including prescribing the classes of physicians or qualifications of physicians who may prepare the report, prescribing the examination and testing, including base line testing, and counselling and treatment that the physician must or may conduct to prepare the report and prescribing the information that the report must or may contain;
(i) prescribing classes of persons for the purpose of clause 5 (2) (a);
(j) governing the reports and notices required pursuant to an analysis of a blood sample obtained under section 3 or pursuant to an order of the Board under section 5, including prescribing the information that such reports and notices must or may contain;
(k) specifying restrictions or conditions on the use that any person may make of the blood sample provided pursuant to a request made by a medical officer of health under section 3 or an order of the Board under section 5, on the release of the blood sample and on the use or disclosure of any information derived from the blood sample;
(l) prescribing rules governing when an application is deemed to be received by a medical officer of health or the Board;
(m) prescribing the maximum time period within which a respondent must comply with an order made under section 5 and that may be specified by the Board in such an order.
Classes
(2) A regulation may apply differently to different classes of persons, circumstances or listed communicable diseases.
Forms
12. The Minister of Community Safety and Correctional Services may require that physician reports, the order made by the Board and other reports, notices and documents required by this Act or the regulations be in the forms approved by him or her.
Transition
13. (1) An order that was made by a medical officer of health under section 22.1 of the Health Protection and Promotion Act before this section comes into force remains effective after this section comes into force.
Same
(2) An application made to a medical officer of health under section 22.1 of the Health Protection and Promotion Act before this section comes into force is deemed to have been made to a medical officer of health under section 2 of this Act on the day this section comes into force if the medical officer of health did not make an order or commence a hearing under section 22.1 of the Health Protection and Promotion Act before this section comes into force.
Same
(3) An application made to a medical officer of health under section 22.1 of the Health Protection and Promotion Act before this section comes into force shall be dealt with as provided in section 22.1 of the Health Protection and Promotion Act, as it read immediately before this section comes into force, if the medical officer of health commenced a hearing into the application under that Act before this section comes into force.
Same
(4) The Health Protection and Promotion Act and the regulations made under it, as they read immediately before this section comes into force, apply in respect of an order made by a medical officer of health,
(a) under section 22.1 of the Health Protection and Promotion Act before this section comes into force; or
(b) under section 22.1 of the Health Protection and Promotion Act, after this section comes into force, pursuant to subsection (3).
Amendments to Health Care Consent Act, 1996
14. (1) Subsection 71 (3) of the Health Care Consent Act, 1996 is amended by striking out “clause 73 (2) (d)” and substituting “clause 73 (2) (d) or (2.1) (b)”.
(2) Section 73 of the Act is amended by adding the following subsection:
Same
(2.1) Despite subsection (2), in the case of an application referred to the Board under the Mandatory Blood Testing Act, 2006, a member of the Board may be assigned to sit alone to deal with the application if,
(a) he or she has expertise, in the opinion of the chair, in blood-borne pathogens; and
(b) he or she meets all of the other qualifications specified by the chair under subsection 71 (3).
Amendments to Health Protection and Promotion Act
15. (1) Section 22.1 of the Health Protection and Promotion Act is repealed.
(2) Clause 96 (1) (a) of the Act is repealed and the following substituted:
(a) prescribing any matter referred to in this Act as prescribed by the regulations;
(3) Clauses 97 (b), (c), (d), (e) and (f) of the Act are repealed.
Commencement
16. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.
Same
(2) Sections 1 to 15 come into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
17. The short title of this Act is the Mandatory Blood Testing Act, 2006.