26 (1) If an individual is determined to be incapable of consenting to the collection, use or disclosure of personal health information by a health information custodian, a person described in one of the following paragraphs may, on the individual’s behalf and in the place of the individual, give, withhold or withdraw the consent: 1.  The individual’s guardian of the person or guardian of property, if the consent relates to the guardian’s authority to make a decision on behalf of the individual. 2.  The individual’s attorney for personal care or attorney for property, if the consent relates to the attorney’s authority to make a decision on behalf of the individual. 3.  The individual’s representative appointed by the Board under section 27, if the representative has authority to give the consent. 4.  The individual’s spouse or partner. 5.  A child or parent of the individual, or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent. This paragraph does not include a parent who has only a right of access to the individual. If a children’s aid society or other person is lawfully entitled to consent in the place of the parent, this paragraph does not include the parent. 6.  A parent of the individual with only a right of access to the individual. 7.  A brother or sister of the individual. 8.  Any other relative of the individual.  2004, c. 3, Sched. A, s. 26 (1); 2016, c. 23, s. 64 (2); 2021, c. 4, Sched. 11, s. 27 (5, 6). Requirements (2) A person described in subsection (1) may consent only if the person, (a)  is capable of consenting to the collection, use or disclosure of personal health information by a health information custodian; (b)  in the case of an individual, is at least 16 years old or is the parent of the individual to whom the personal health information relates; (c)  is not prohibited by court order or separation agreement from having access to the individual to whom the personal health information relates or from giving or refusing consent on the individual’s behalf; (d)  is available; and (e)  is willing to assume the responsibility of making a decision on whether or not to consent.  2004, c. 3, Sched. A, s. 26 (2); 2021, c. 4, Sched. 11, s. 27 (7). Meaning of “available” (3) For the purpose of clause (2) (d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent.  2004, c. 3, Sched. A, s. 26 (3). Ranking (4) A person described in a paragraph of subsection (1) may consent only if no person described in an earlier paragraph meets the requirements of subsection (2).  2004, c. 3, Sched. A, s. 26 (4). Same (5) Despite subsection (4), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may consent if the person believes that, (a)  no other person described in an earlier paragraph or the same paragraph exists; or (b)  although such other person exists, the other person is not a person described in paragraph 1, 2 or 3 of subsection (1) and would not object to the person who is present or has otherwise been contacted making the decision.  2004, c. 3, Sched. A, s. 26 (5); 2007, c. 10, Sched. H, s. 7. Public Guardian and Trustee (6) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee may make the decision to consent.  2004, c. 3, Sched. A, s. 26 (6). Conflict between persons in same paragraph (7) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to consent, and if their claims rank ahead of all others, the Public Guardian and Trustee may make the decision in their stead.  2004, c. 3, Sched. A, s. 26 (7). Transition, representative appointed by individual (8) Where an individual, to whom personal health information relates, appointed a representative under section 36.1 of the Mental Health Act before the day this section comes into force, the representative shall be deemed to have the same authority as a person mentioned in paragraph 2 of subsection (1).  2004, c. 3, Sched. A, s. 26 (8). Limited authority (9) The authority conferred on the representative by subsection (8) is limited to the purposes for which the representative was appointed.  2004, c. 3, Sched. A, s. 26 (9). Revocation (10) An individual who is capable of consenting with respect to personal health information may revoke the appointment mentioned in subsection (8) in writing.  2004, c. 3, Sched. A, s. 26 (10). Ranking (11) A person who is entitled to be the substitute decision-maker of the individual under this section may act as the substitute decision-maker only in circumstances where there is no person who may act as the substitute decision-maker of the individual under subsection 5 (2), (3) or (4).  2004, c. 3, Sched. A, s. 26 (11). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection 26 (11) of the Act is amended by striking out “(3) or (4)” at the end and substituting “(3), (3.1) or (4)”. (See: 2017, c. 25, Sched. 5, s. 72) Section Amendments with date in force (d/m/y) 2007, c. 10, Sched. H, s. 7 - 04/06/2007 2016, c. 23, s. 64 (2) - 05/12/2016 2017, c. 25, Sched. 5, s. 72 - not in force 2021, c. 4, Sched. 11, s. 27 (5-7) - 19/04/2021