The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 28th day of May, 2012
Craig James, Clerk of the House
HONOURABLE MARGARET MACDIARMID
MINISTER OF LABOUR, CITIZENS' SERVICES
AND OPEN GOVERNMENT
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 In this Act:
"applicant" means a person who applies for a testing order or on whose behalf an application for a testing order is made;
"court" means the Provincial Court of British Columbia;
"physician" means a medical practitioner as defined in section 29 of the Interpretation Act;
"qualified analyst" means a person referred to in section 7 who has the prescribed qualifications;
"source individual" means an individual whom an applicant identifies as the individual with whose bodily substance the applicant came into contact in a circumstance referred to in section 3 (1);
"test results" means results of an analysis conducted by a qualified analyst under section 7 for the purposes referred to in section 5 (2) (a);
"testing order" means an order under section 5 (1).
2 (1) An individual who intends to apply under section 3 (1) for a testing order in respect of another individual must provide notice of that intention to the other individual in accordance with the regulations.
(2) An individual may not apply under section 3 (1) for a testing order until at least 3 days have expired since the date the individual provided notice under subsection (1) of this section.
3 (1) Subject to section 2, an individual may apply to the court for a testing order if the individual has come into contact with a bodily substance of another individual in any of the following circumstances:
(a) while providing emergency health services;
(b) while performing his or her duties as a firefighter, an emergency medical assistant or a peace officer;
(c) while being involved in a prescribed circumstance or while carrying out a prescribed activity.
(2) If an individual who came into contact with the bodily substance of another individual in a circumstance referred to in subsection (1) is not able to apply for a testing order under that subsection, a representative of the individual may apply on behalf of the individual.
(3) An application for a testing order must
(a) include a physician's report, as prescribed, and anything else prescribed,
(b) be made within 30 days of the date of the contact referred to in subsection (1),
(c) be made in accordance with the regulations, and
(d) be served on the source individual at least 4 days before the court hears the application.
(4) The court must hear an application for a testing order as soon as practicable and may, on application or on the court's own motion, order that the public is excluded from all or part of a hearing.
4 Despite sections 2 and 3 (3) (d), the court may hear an application made under section 3 (1) without notice to the source individual if the applicant satisfies the court that, in the circumstances, complying with section 2 or 3 (3) (d) within a reasonable time is impossible or impracticable.
5 (1) On an application made under section 3 (1), the court may make a testing order if the court, having considered the physician's report and any other evidence the court considers relevant, is satisfied of the following:
(a) subject to section 4, the applicant has complied with sections 2 and 3 (3) (d);
(b) the applicant has come into contact with a bodily substance of the source individual in one of the circumstances set out in section 3 (1);
(c) there are reasonable grounds to believe that the applicant may have been exposed, as a result of the contact, to a pathogen that causes a prescribed communicable disease;
(d) an analysis of the applicant's bodily fluids would not determine, in a timely manner, whether the applicant has been infected;
(e) taking a sample of a bodily fluid from the source individual would not endanger the source individual's life or health;
(f) the information to be obtained under the testing order cannot reasonably be obtained in any other manner;
(g) the testing order is necessary to decrease or eliminate the risk to the health of the applicant as a result of the contact.
(2) A testing order
(a) must require the source individual, within the time specified in the order, to attend at a prescribed health facility identified in the order so that a sample of any bodily fluid specified in the order may be taken from the source individual for the purpose of determining whether the source individual is infected with a pathogen that causes a prescribed communicable disease,
(b) must require the prescribed health facility identified in the order to ensure, on compliance by the source individual with the requirement referred to in paragraph (a), that a sample of a bodily fluid, specified in the order, of the source individual is taken for the purpose referred to in that paragraph,
(c) must require the applicant to serve the testing order and any other prescribed information, within the time specified in the order, on
(i) the source individual, and
(ii) the prescribed health facility identified in the order, and
(d) may address any other matters and contain any additional directions that the court considers necessary.
(3) If the source individual named in a testing order is a minor or an incapacitated adult, the testing order must require the applicable of the following to take all reasonable steps to ensure that the source individual complies with the testing order:
(a) a guardian of the minor;
(b) a person in a prescribed relationship to the incapacitated adult.
(4) A decision of the court under subsection (1) may be appealed to the Supreme Court.
6 A person at a prescribed health facility who, under a testing order, takes from the source individual a sample of a bodily fluid specified in the testing order
(a) must deliver the sample, a copy of the testing order and any other prescribed information to a qualified analyst for the purpose of having the sample analyzed, and
(b) must not use the sample in any manner other than the manner specified in the order or for any purpose other than the purposes of the order.
7 A qualified analyst who receives a sample delivered in accordance with section 6 must do all of the following:
(a) conduct an analysis of the sample;
(b) ensure that the sample is not used for any purpose other than the analysis required by the testing order;
(c) ensure that the sample is not released to any person unless
(i) the person is acting on behalf of the analyst for the purposes of carrying out the analysis required by the testing order, and
(ii) the qualified analyst is satisfied that no other person has access to the sample while it is in the custody of that person;
(d) promptly provide a written report of the results of the analysis, a copy of the testing order and any other prescribed information to
(i) the applicant's physician, and
(ii) either
(A) the source individual's physician, or
(B) the prescribed person, if the source individual's physician is not known to the qualified analyst;
(e) ensure that the results of the analysis are not disclosed except in accordance with this Act or the Public Health Act.
8 As soon as reasonably possible after receiving under section 7 (d) test results from a qualified analyst,
(a) the applicant's physician must notify the applicant of the test results, and
(b) the source individual's physician or the prescribed person, as the case may be, must notify the source individual of the test results.
9 (1) A person must not use or disclose any information concerning an applicant or a source individual if that information comes to the person's knowledge in the course of carrying out responsibilities under this Act or as a result of obtaining a testing order.
(2) The prohibition in subsection (1) does not apply to disclosure in the following circumstances:
(a) in the course of administering this Act or of carrying out a duty imposed or exercising a power conferred under this Act;
(b) as required by law;
(c) with the consent of the person the information is about;
(d) in the course of a consultation between qualified health professionals;
(e) in the case of information respecting a person who is a minor or represented adult, to a guardian of that person;
(f) in prescribed circumstances.
(3) A person who is subpoenaed or otherwise compelled to give evidence in a legal proceeding, other than a proceeding for the purposes of section 5 (1) or an appeal under section 5 (4), must not, by answering a question or producing a document, disclose information described in subsection (1), unless the judge or other person presiding over the proceeding first examines the information, with the public excluded, and determines that the information should be disclosed, having regard to
(a) the probative value of the information,
(b) the relevance of the information to the proceeding, and
(c) the effect of the disclosure on the privacy of the person the information is about.
10 Subject to the regulations, an applicant is responsible for paying the prescribed costs relating to a testing order.
11 (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against a person because of anything done or omitted
(a) in the exercise or intended exercise of any power under this Act,
(b) in the performance or intended performance of any duty under this Act, or
(c) in the taking, under a testing order, of a sample from a source individual.
(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.
12 (1) All documents or notifications required to be given to or served on a person must be given or served in accordance with the regulations.
(2) If a person is required under this Act to provide a notice to or serve a document on another person, the first person may instead provide the notice to or serve the document on a person in a prescribed category of persons, if any.
13 (1) A source individual who contravenes a testing order commits an offence and is liable on conviction to a fine of not more than $10 000.
(2) A person who contravenes section 9 of this Act commits an offence and is liable on conviction,
(a) in the case of an individual, to a fine of not more than $10 000, and
(b) in the case of a corporation, to a fine of not more than $25 000.
(3) If an offence under this section continues for more than one day, separate fines, each not exceeding the maximum fine for that offence, may be imposed for each day the offence continues.
(4) The time limit for laying an information to commence a prosecution for an offence under this Act is 2 years after the date on which the act or omission that is alleged to constitute the offence occurred.
(5) Section 5 of the Offence Act does not apply to this Act.
14 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing diseases or conditions as communicable diseases for the purposes of this Act;
(b) prescribing qualifications for the purposes of the definition of "qualified analyst" in section 1;
(c) respecting the notice to be provided under section 2, including prescribing forms for that purpose;
(d) prescribing circumstances and activities for the purposes of section 3 (1) (c);
(e) respecting applications for testing orders, including prescribing forms for that purpose;
(f) respecting physician's reports referred to in section 3 (3) (a);
(g) respecting the taking and analysis of samples of bodily substances obtained under the authority of a testing order;
(h) prescribing health facilities for the purposes of sections 5 and 6;
(i) prescribing information for the purposes of sections 5 (2) (c), 6 (a) and 7 (d);
(j) prescribing persons in relation to incapacitated adults for the purpose of section 5 (3) (b);
(k) prescribing persons for the purposes of section 7 (d) (ii) (B);
(l) respecting the handling, retention and destruction of samples of bodily substances and related records;
(m) prescribing circumstances when confidential information under this Act may be disclosed;
(n) prescribing circumstances in which the government may be responsible for paying the costs referred to in section 10 and prescribing costs for the purposes of that section;
(o) respecting notice and service for the purposes of section 12, including prescribing categories of persons who, in prescribed circumstances, may be notified or served instead of the person identified in the Act;
(p) defining words and phrases used but not defined in this Act.
(3) In making a regulation under subsection (1) or (2), the Lieutenant Governor in Council may make different regulations for different persons, things, decisions or activities.
Workers Compensation Act
15 The Workers Compensation Act, R.S.B.C. 1996, c. 492, is amended by adding the following section:
6.2 (1) In this section:
"applicant" means an applicant, as defined in the Emergency Intervention Disclosure Act, who has obtained a testing order under that Act respecting a source individual;
"communicable disease" means a communicable disease prescribed for the purposes of the Emergency Intervention Disclosure Act;
"source individual" has the same meaning as in the Emergency Intervention Disclosure Act.
(2) If a worker who is an applicant has contracted a communicable disease, it must be presumed, unless there is evidence to the contrary, that the communicable disease is due to the nature of the worker's employment, if
(a) the worker came into contact with the bodily substance of the source individual in the course of the worker's employment, and
(b) test results obtained under a testing order made under the Emergency Intervention Disclosure Act indicate that the source individual is infected with a pathogen that causes the communicable disease contracted by the applicant.
16 This Act comes into force by regulation of the Lieutenant Governor in Council.