1 Definitions
2 Powers and duties
3 Application for testing order
4 Testing order
5 Authority of police officer
6 Appeal and stay of testing order
7 Physician’s report
8 Responsibilities of Chief Medical Officer of Health
9 Responsibilities of medical officers of health
10 Responsibilities of qualified health professionals
11 Source individual at risk
12 Responsibilities of qualified analysts
13 Results of analysis
14 Costs
15 Service of documents
16 Confidentiality
17 Protection from liability
18 Regulations
19 Offence and penalty
20 Amendment to definition
21 Repeal
22 Coming into force
HER MAJESTY, by and
with the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Definitions
1 In this Act,
(a) “applicant”
means an individual who applies for a testing order or in respect of whom an
application for a testing order is made;
(b) “bodily
substance” means a natural bodily fluid or secretion;
(c) “Chief
Medical Officer of Health” means the Chief Medical Officer of Health appointed
under the Public Health Act;
(d) “communicable
disease” means a disease prescribed as a communicable disease in the
regulations;
(e) “communicable
disease database” means a database prescribed in the regulations as a
communicable disease database;
(e.1) “dependent adult” means a person who is the
subject of a guardianship order made under the Dependent Adults Act;
(f) “firefighter”
means a person employed by or volunteering for a municipality or Metis
settlement who is assigned to fire protection and fire prevention duties and
whose duties may include the performance of emergency medical or rescue
services;
(g) “guardian” means a person
(i) who is or who is appointed a guardian of a
child under Part 2 of the Family Law Act,
(ii) who is a guardian of a child under an
agreement or order made pursuant to the Child, Youth and Family Enhancement
Act, or
(iii) who is the guardian of a dependent adult
under an order made under or by virtue of the operation of the Dependent
Adults Act,
as the
case requires;
(h) “medical
officer of health” means a medical officer of health appointed under the Public
Health Act;
(i) “Minister”
means the Minister determined under section 16 of the Government
Organization Act as the Minister responsible for this Act;
(j) “paramedic”
means a person who is registered as a member of the designated health
discipline of Emergency Medical Technicians under the Health Disciplines Act;
(k) “peace
officer” means a police officer and any other person employed for the
preservation and maintenance of the public peace;
(l) “physician’s
report” means a physician’s report required for the purposes of an application
made under section 3;
(m) “police
officer” means a police officer as defined in the Police Act and
includes a special constable who by the terms of his or her appointment is
authorized to enforce this Act;
(n) “qualified
analyst” means a person who holds the qualifications set out in the regulations
for conducting a type of analysis required by a testing order;
(o) “qualified
health professional” means a member in good standing of a health profession
prescribed in the regulations;
(p) “source
individual” means an individual from whom a sample of a bodily substance is
sought for the purposes of testing;
(q) “testing
order” means an order made by the Provincial Court that directs the Chief
Medical Officer of Health to search the communicable disease databases or that
directs a source individual to allow a qualified health professional to take a
sample of a bodily substance from the source individual for analysis, or both.
2006 cM‑3.5
s1;2007 c18 s4
Powers and duties
2(1) For
the purposes of this Act and the regulations, the Chief Medical Officer of
Health and medical officers of health have the powers and duties set out in the
Public Health Act and have any other powers provided for under the
regulations to carry out the requirements of a testing order.
(2) The
Chief Medical Officer of Health or medical officers of health may in writing
delegate to an employee under their direction any of the powers, duties and
functions conferred or imposed on the Chief Medical Officer of Health or
medical officers of health by this Act or the regulations.
Application for testing
order
3(1) An
individual may apply to the Provincial Court for a testing order if the
individual
(a) has
come into contact with a bodily substance of a source individual
(i) while providing emergency assistance to a source individual who
is ill, injured or unconscious as a result of an accident or other emergency,
(ii) while performing duties as a firefighter, paramedic or peace
officer, or
(iii) while being involved in a circumstance or activity described in
the regulations,
or
(b) is
a member of a class of individuals designated by the regulations that has come
into contact with a bodily substance of a source individual as set out in
clause (a).
(2) If an individual is unable to make
an application under subsection (1), any person may make an application under
subsection (1) on the individual’s behalf.
(3) An application under this section
must be by way of an originating notice.
(4) The originating notice and any other
documents provided for in the regulations must be served personally on the
source individual not less than 7 days before the application is to be heard by
the Provincial Court.
(5) If the source individual is a minor,
the originating notice and any other documents provided for in the regulations
must be served personally on the parent or guardian of the source individual
and, if the source individual is 14 years of age or older, on the source
individual, not less than 7 days before the application is to be heard by the
Provincial Court.
(6) If the source individual is a
dependent adult, the originating notice and any other documents provided for in
the regulations must be served personally on the source individual and on the
guardian of the source individual not less than 7 days before the application is
to be heard by the Provincial Court.
(7) If the source individual is
deceased, the originating notice and any other documents provided for in the
regulations must be served personally on the next of kin of the source
individual or on the executor or administrator of the estate of the source
individual, if any, not less than 7 days before the application is to be heard
by the Provincial Court.
(8) Notwithstanding subsections (4),
(5), (6) and (7), a judge of the Provincial Court, on the ex parte application
of the applicant, may dispense with service of the originating notice under
subsection (4), (5), (6) or (7) or authorize a shorter period of notice if the
applicant satisfies the Provincial Court that in the circumstances of the case,
giving 7 days’ notice to the source individual or the parent or guardian of the
source individual is impossible or impractical.
(9) An application must
(a) set
out the circumstances in which the applicant came into contact with a bodily
substance of the source individual,
(b) state
what attempts have been made to determine if the source individual is infected
with a pathogen that causes a communicable disease,
(c) be
accompanied with a physician’s report, and
(d) meet
any other requirements set out in the regulations.
(10) Subject to the regulations, an
application for a testing order must be made within 30 days of the applicant’s
coming into contact with a bodily substance of the source individual.
Testing order
4(1) On
hearing an application, the Provincial Court must consider all relevant factors
and all relevant evidence submitted, either orally or by affidavit, including
any evidence about the impact a testing order may have on the source
individual’s life or health.
(2) The Provincial Court may make a
testing order if the Provincial Court is satisfied that
(a) the
applicant has come into contact with a bodily substance of the source
individual,
(b) there
are reasonable grounds to believe that as a result of the contact the applicant
might have become infected with a pathogen that causes a communicable disease,
(c) having
regard to the physician’s report and to the incubation periods for pathogens
that cause communicable diseases and the methods available for ascertaining the
presence of pathogens in the human body, an analysis of the applicant’s bodily
substances would not accurately determine, in a timely manner, whether the
applicant has, as a result of that contact, become infected with a pathogen
that causes a communicable disease,
(d) the
information to be obtained under the proposed testing order cannot reasonably
be obtained in any other manner, and
(e) having
regard to the physician’s report, because of the contact, the testing order is
necessary to treat or manage the health of the applicant.
(3) The testing order referred to in
subsection (2) may
(a) require
the Chief Medical Officer of Health to search the communicable disease
databases to determine if the source individual is recorded on a communicable
disease database,
(b) require
the source individual to provide to the Chief Medical Officer of Health
information required to perform a communicable disease database search,
(c) direct
how the testing order may be carried out,
(d) require
the source individual to comply with any directions of a medical officer of
health,
(e) require
a parent or guardian of a source individual who is a minor to take all
reasonable steps to ensure the source individual complies with the testing
order,
(f) require
the guardian of a source individual who is a dependent adult to take all
reasonable steps to ensure that the source individual complies with the testing
order,
(g) allow
the Chief Medical Officer of Health not to require a qualified health
professional to take a sample of a bodily substance from the source individual
if the communicable disease database search has provided sufficient information
so that taking a sample of a bodily substance from the source individual is not
necessary,
(h) subject
to clause (g) and subsection (4), require a qualified health professional to
take from the source individual a sample of a bodily substance as specified by
the physician’s report and deliver the sample to a qualified analyst for
analysis for the purpose of determining whether the source individual is
infected with a pathogen that causes a communicable disease,
(i) specify
the tests a qualified analyst must conduct on the sample obtained from the
qualified health professional under clause (h),
(j) authorize
a police officer to assist a medical officer of health or a qualified health
professional under this Act, including, but not restricted to,
(i) by apprehending the source individual,
(ii) by confining the source individual until the testing order has
been complied with,
(iii) by entering the premises of the source individual, or
(iv) by using force to ensure that the source individual complies with
the testing order,
and
(k) contain
any additional directions that the Provincial Court considers necessary.
(4) If a sample of a bodily substance
was acquired at the time the applicant came into contact with the bodily
substance of the source individual and the sample can be used for the analysis,
the Provincial Court may order that that sample must be sent to the qualified
analyst instead of requiring the source individual to provide another sample of
the bodily substance.
(5) If the source individual is deceased
at the time of the application, the Provincial Court may make an order that
allows a qualified health professional to take a sample of a bodily substance
from the deceased source individual.
(6) The applicant must serve a copy of
the testing order on the Chief Medical Officer of Health and provide the Chief
Medical Officer of Health with a copy of the physician’s report.
Authority of police
officer
5(1) If
a medical officer of health or a qualified health professional requires the
assistance of a police officer in carrying out the requirements of a testing
order and the testing order does not provide sufficient authority for a police
officer to effectively render assistance to the medical officer of health or
the qualified health professional, the applicant, the medical officer of
health, the qualified health professional or a police officer may by notice of
motion make an application to the Provincial Court for further direction.
(2) Subject to subsections (3) and (4),
the notice of motion referred to in subsection (1) must be served on the source
individual not less than 2 days before the application is to be heard by the
Provincial Court.
(3) If the source individual is a minor,
the notice of motion must be served on the parent or guardian of the source
individual and, if the source individual is 14 years of age or older, on the
source individual, not less than 2 days before the application is to be heard
by the Provincial Court.
(4) If the source individual is a
dependent adult, the notice of motion must be served on the source individual
and on the guardian of the source individual not less than 2 days before the
application is to be heard by the Provincial Court.
(5) Notwithstanding subsections (2), (3)
and (4), a judge of the Provincial Court, on the ex parte application of the
applicant, the medical officer of health, the qualified health professional or
a police officer, may dispense with service of the notice of motion under
subsection (2), (3) or (4) or authorize a shorter period of notice if the
applicant, the medical officer of health, the qualified health professional or
the police officer satisfies the Provincial Court that, in the circumstances of
the case, giving 2 days’ notice to the source individual or to the parent or
guardian of the source individual is impossible or impractical.
Appeal and stay of
testing order
6(1) The
applicant or the source individual may, by notice of appeal, appeal to the
Court of Queen’s Bench any decision of the Provincial Court on a question of
law relating to a testing order.
(2) An
appellant may, by notice of motion, apply to the Court of Queen’s Bench for a
stay of a testing order until the appeal is determined.
(3) The
appellant must serve the respondent and the Chief Medical Officer of Health
with the notice of appeal and, if a stay of the testing order is being
requested under subsection (2), with a copy of that notice of motion.
Physician’s report
7(1) A
physician’s report required for the purposes of an application for a testing
order under section 3 must
(a) be
made by a physician who holds the qualifications specified in the regulations,
(b) be
in a form and contain the information prescribed by the regulations, and
(c) meet
any other requirements prescribed by regulation.
(2) For the purposes of preparing a
physician’s report, a physician
(a) may
require the applicant to submit to an examination, testing or treatment, and
(b) must
assess the risk to the health of the applicant resulting from the applicant’s
contact with a bodily substance of the source individual.
Responsibilities of
Chief Medical Officer of Health
8(1) On
receiving a copy of a testing order and a copy of the physician’s report, the
Chief Medical Officer of Health
(a) must,
as soon as reasonably possible, provide a copy of the testing order and a copy
of the physician’s report to the medical officer of health for the health
region where the source individual resides, and
(b) may
require the medical officer of health to carry out the requirements of the
testing order.
(2) The
Chief Medical Officer of Health may provide the results of a search of the
communicable disease databases to the medical officer of health referred to in
subsection (1).
(3) The Chief Medical Officer of Health
must provide the results of the communicable disease database search to the
applicant’s physician and deliver notice to the applicant that the results have
been delivered to the applicant’s physician.
Responsibilities of
medical officers of health
9(1) Subject
to section 4(3)(g) and (4), on receiving a copy of a testing order, the
physician’s report and results from a search of the communicable disease
databases under section 8, a medical officer of health must as soon as
reasonably possible
(a) designate
a qualified health professional to take from the source individual a sample of
any bodily substance specified by the testing order,
(b) designate
one or more qualified analysts to conduct tests on the sample obtained from the
source individual in accordance with the testing order and may provide any
additional instructions if necessary, and
(c) subject
to subsections (2) and (3), serve the source individual with a copy of the
testing order and a notice that provides the source individual with directions
respecting the manner in which he or she must comply with the order.
(2) If the source individual is a minor,
a medical officer of health must serve a copy of the testing order and the
notice described in subsection (1) on the parent or guardian of the source
individual and, if the source individual is 14 years of age or older, on the
source individual.
(3) If the source individual is a
dependent adult, a medical officer of health must serve a copy of the testing
order and the notice described in subsection (1) on the source individual and
on the guardian of the source individual.
(4) If the Chief Medical Officer of
Health is satisfied that the medical officer of health is unable to carry out
the requirements of the testing order, the Chief Medical Officer of Health may
require any other medical officer of health to carry out the requirements of
that order.
Responsibilities of
qualified health professionals
10(1) A
qualified health professional referred to in section 9(1)(a) must
(a) take
from the source individual a sample of any bodily substance as specified by the
testing order and deal with the sample in the manner directed by the medical
officer of health, and
(b) deliver
the sample to a qualified analyst designated by the medical officer of health
for the purpose of having the sample analysed.
(2) A qualified health professional who
takes a sample of a bodily substance from a source individual pursuant to a
testing order must not use the sample
(a) in
any manner other than the manner specified in the testing order, or
(b) for
any purpose other than the purposes set out in the testing order.
(3) The source individual must, on the
request of the qualified health professional, provide the qualified health
professional with the name, address, telephone number and fax number of the
source individual’s physician, if any.
(4) If
the qualified health professional is unable to take a sample of a bodily
substance from the source individual as specified by the medical officer of
health under section 9(1)(a), the medical officer of health may require any
other qualified health professional to take a sample of a bodily substance from
the source individual.
Source individual at
risk
11(1) If
a medical officer of health or a qualified health professional believes that
taking a sample of a bodily substance from the source individual will endanger
the source individual’s life or health, the medical officer of health or the
qualified health professional must, by notice of motion, make an application to
the Provincial Court for further direction.
(2) The notice of motion referred to in
subsection (1) must be served on the source individual and on the applicant not
less than 2 days before the application is to be heard by the Provincial Court.
(3) Despite subsection (2), if the
source individual is a minor, the notice of motion must be served on the parent
or guardian of the source individual and, if the source individual is 14 years
of age or older, on the source individual, not less than 2 days before the
application is to be heard by the Provincial Court.
(4) Despite subsection (2), if the
source individual is a dependent adult, the notice of motion must be served on
the source individual and on the guardian of the source individual not less
than 2 days before the application is to be heard by the Provincial Court.
(5) Notwithstanding subsections (2), (3)
and (4), a judge of the Provincial Court, on the ex parte application of the
medical officer of health or the qualified health professional, may dispense
with service of the notice of motion under subsection (2), (3) or (4) or
authorize a shorter period of notice if the medical officer of health or the
qualified health professional satisfies the Provincial Court that, in the
circumstances of the case, giving 2 days’ notice to the applicant or to the
source individual or to the parent or guardian of the source individual is
impossible or impractical.
Responsibilities of
qualified analysts
12 A qualified analyst referred to in
section 9(1)(b) must
(a) conduct
an analysis of a sample of a bodily substance delivered under section 10(1)(b),
(b) promptly
provide a written record of the results of the analysis to the medical officer
of health who instructed the qualified analyst,
(c) ensure
the sample is not used for any purpose other than the analysis required by the
testing order,
(d) not
release the sample to any person unless
(i) the sample is released to a person who is acting on behalf of the
qualified analyst for the purposes of
(A) carrying out the analysis required by the testing order, or
(B) retention of the sample,
and
(ii) the qualified analyst ensures no other person has access to the
sample while it is in the custody of that person,
(e) ensure
that the sample is retained for a prescribed period and then destroyed in
accordance with the regulations, and
(f) not
disclose the results of the analysis except in accordance with this Act or the Public
Health Act.
Results of analysis
13(1) As
soon as practicable after receiving the results of an analysis, a medical
officer of health must make all reasonable efforts to provide a copy of the
results to the applicant’s physician and to the source individual’s physician.
(2) As
soon as practicable after receiving the results of an analysis, a medical
officer of health must make all reasonable efforts to deliver notice to the
applicant and to the source individual that the results have been delivered to
their respective physicians.
(3) If the results of an analysis are
positive for a communicable disease, the medical officer of health must comply
with Part 3 of the Public Health Act.
(4) The results of an analysis are not
admissible as evidence in any criminal or civil proceeding other than in
accordance with this Act or the Public Health Act.
Costs
14 The Minister is not responsible for any
costs of the applicant or the source individual unless otherwise provided for
by the regulations.
Service of documents
15(1) A
document required to be served under section 5, 9 or 11 may be served
personally or by being sent by registered mail to the last known address of the
person being served.
(2) A
document served by registered mail is deemed to have been received on the 7th
day following the day of its mailing unless the person to whom it was mailed
establishes that, through no fault of that person, the person did not receive
the document or received it at a later date.
Confidentiality
16(1) Despite
the Health Information Act and the Freedom of Information and
Protection of Privacy Act and subject to subsection (2), no person shall
use or disclose any information about an applicant or a source individual that
comes to the person’s knowledge in the course of carrying out any
responsibility pursuant to this Act or the regulations.
(2) A person may disclose information
described in subsection (1) if the disclosure is
(a) required
to administer this Act or the regulations,
(b) required
to carry out a responsibility or duties imposed or to exercise powers conferred
by this Act or the regulations,
(c) pursuant
to a subpoena, warrant or order issued by the Provincial Court or the Court of
Queen’s Bench,
(d) required
by an enactment,
(e) ordered
by the Minister for the purposes of protecting the public health,
(f) made
in the course of a professional consultation between qualified health
professionals,
(g) made
between solicitor and client, or
(h) made
in circumstances set out in the regulations.
(3) Any
proceedings relating to information disclosed pursuant to subsection (2)(c) may
at the discretion of the Court be held in private, and at the conclusion of the
proceedings before the Court the information may be sealed by the clerk of the
Court and the Court may direct that the part of the record of the proceedings
relating to that information not be made available to the public.
(4) If
the Provincial Court makes an order at any time during the proceedings before
it and that order is appealed to the Court of Queen’s Bench, that part of the
hearing before the Court of Queen’s Bench that relates to information disclosed
pursuant to subsection (2)(c) may, at the discretion of the Court of Queen’s
Bench, be heard in private.
Protection from
liability
17 No action for damages may be commenced
against an individual carrying out a power or duty under this Act for anything
done or omitted to be done by that individual in good faith.
Regulations
18(1) The
Lieutenant Governor in Council may make regulations
(a) prescribing
diseases as communicable diseases for the purposes of this Act;
(b) prescribing
communicable disease databases;
(c) respecting
the additional powers of the Chief Medical Officer of Health and medical
officers of health in carrying out a testing order under this Act;
(d) prescribing
the circumstances and the activities that, if performed in relation to a source
individual, give rise to grounds for an application for a testing order if the
individual performing the activities comes into contact with a bodily substance
of the source individual;
(e) respecting
classes of individuals for the purposes of section 3(1)(b);
(f) governing
applications for testing orders and for appeals of testing orders;
(g) respecting
other documents that must be served on a source individual when an application
for a testing order is made;
(h) respecting
how a testing order made under this Act may be carried out;
(i) respecting
the qualifications a physician must hold for the purposes of preparing a
physician’s report;
(j) prescribing
the form and contents of a physician’s report;
(k) respecting
other requirements of a physician’s report;
(l) prescribing
health professions whose members are qualified health professionals for the
purposes of this Act;
(m) respecting
the qualifications that must be met by a person to be a qualified analyst;
(n) respecting
costs;
(o) respecting
circumstances under which information collected under this Act may be
disclosed;
(p) respecting
exceptions to the 30‑day time period within which an application for a
testing order must be made;
(q) respecting
any other matter or thing that the Lieutenant Governor in Council considers
appropriate for the purposes of this Act.
(2) The Minister may make regulations
(a) respecting
who may retain samples of bodily substances;
(b) respecting
the manner in which samples of bodily substances must be retained;
(c) respecting
the retention period for samples of bodily substances;
(d) respecting
the destruction of samples of bodily substances.
Offence and penalty
19 A person who contravenes this Act or the
regulations is guilty of an offence and liable to a fine of not more than $2000
for a first offence and not more than $5000 for a 2nd or subsequent offence.
Amendment to definition
20(1) Section 1(j) is repealed and the following is
substituted:
(j) “paramedic”
means a regulated member of the Alberta College of Paramedics;
(2) Subsection (1) comes into force on the coming
into force of Schedule 18 of the Health Professions Act.
Repeal
21 The Blood
Samples Act, SA 2004 cB‑4.5,
is repealed.
Coming into force
22 This Act, except section 20(1), comes
into force on Proclamation.
(NOTE: Proclaimed in force October 1,
2007.)