Nova Scotia Proposes “Presumed Consent” Legislation for Organ Donations

April 5, 2019 Hull & Hull LLP Beneficiary Designations, Estate & Trust, Estate Litigation, Estate Planning, Support After Death, Trustees, Uncategorized, Wills Tags: , , 0 Comments

Nova Scotia is proposing legislation that will make it the first jurisdiction in North America to adopt “presumed consent” around organ donation.

Under the Human Organ and Tissue Donation Act, all people in Nova Scotia will be presumed to agree to organ donation upon their death, unless they opt out. The Act does not apply to those under 19, or those without decision-making capacity. In those cases, a parent, guardian or alternate decision maker may consent on their behalf.

The Act will not be proclaimed immediately: it is to take effect in 12 to 18 months, so as to allow for public education and support for health care workers.

Under previous Nova Scotia legislation, the right of a family member to veto an organ donation decision made by a deceased was removed. See our blog on the topic, here.

Several European countries already have presumed consent laws for organ donation.

In Ontario, the current system is an “opt-in” system, rather than an “opt-out” system. Under the Trillium Gift of Life Act, consent must be given prior to the removal of organs after death. The person must be at least 16 years of age. In addition to the person, other persons are entitled to consent on the person’s behalf. These include,

  • a spouse, either married or common-law;
  • if there is no spouse or the spouse is not readily available, the person’s children;
  • if there are no children, or if none are readily available, either of the person’s parents;
  • if there are no parents, or none are readily available, any of the person’s siblings;
  • if there are no siblings, or none are readily available, any of the person’s next of kin;
  • if there are no next of kin, or none are readily available, the person lawfully in possession of the body, other than the administrative head of the hospital, where the person dies in a hospital. Further, the coroner, Public Guardian and Trustee, embalmer or funeral director are not authorized to consent.

Consent cannot be given if the person has reason to believe that the person who died or whose death is imminent would have objected.

Organ donation has helped so many. Please consider opting in to Ontario’s organ donation program.

Have a great weekend.

Paul Trudelle

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