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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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LANDLORD AND TENANT (DISTRESS FOR RENT—HEALTH RECORDS EXEMPTION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 April 2008. Page 2518.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:36): I indicate that the opposition will be supporting the bill. The bill is presented by the member for Hartley as a private member's bill, which she indicates aims to protect the privacy of patients where they have consulted with a medical practitioner, a doctor or other health provider, who dies or vacates premises in which the practice was located or where, at the very least, medical records were stored or secured.

At present, when a dispute arises between a landlord and tenant—and the tenant may be locked out of the premises—any records kept inside the premises (and, indeed, a number of other items of property) are under the control of the landlord. As the honourable member has highlighted, this situation presents significant problems where medical records are concerned.

This is an amendment to the Landlord and Tenant Act 1936. It is important to appreciate that the provisions in part 2 of that act outline the circumstances in which the act of providing a distress for rent, its modes and exemptions, its processes and procedures, are set out. Essentially, there is a process by which a landlord, where the rent has not been paid, can (either themselves or by a person authorised by a warrant under their hand) take into their possession certain items of property.

The goods are defined under the act. I note that it specifically exempts cattle that are agisted. I am not sure what happens with other livestock, but we do not need to go into that aspect today. It does raise the fact that already under this legislation there are a number of examples whereby goods are exempt. This is not a new or exclusive domain that is being explored in the bill. There is already the protection of a number of assets. Cattle and vehicles of livery, with all saddles, bridles and other harness belonging or appertaining thereto, are already exempt from distress for rent. We also have exemptions for any sewing machine, typewriting machine or mangle, the property of or under hire to any female person, whether belonging to the tenant or otherwise, for any rent claimed. There is also provision for where there is more than one of each of those items.

There is also an exemption for the wearing apparel, tools and implements of trade and household requisites to the total value of $20. These indicate the circumstances (which I think are probably self-evident) as to why they are exempt. We have similar rules in respect of bankruptcy, for example, which protect some personal chattels necessary for the purposes of a trade or occupation. So, that aspect is not new.

The circumstances in which this bill comes to the attention of the house, where some remedy and protection is sought, is as a result of a tenancy dispute in the member's electorate, as I understand the media on this matter, where some 10,000 medical records were the subject of concern, and the importance of ensuring that those records were not seized—or, in this case, retained—by the landlord claiming to have rent due and owing, and also the importance of protecting both the privacy of the records and the possession so that they may not be interfered with or replicated or published in some other manner that would be detrimental to the patients in question. That initiative in itself, and the desire on the part of the member to protect the interests of patients in those circumstances—and, indeed, to protect the interests of the medical practitioner in what action may be taken against him or her—is of some merit.

The bill seeks to determine that the record of a health practitioner is exempt, so we place it in the category of a number of other exemptions already provided for. I do not have any issue with that process. However, I note that the definition of 'health practitioner' is somewhat expanded, and I will ask questions of the member during the committee stage as to who will take possession of these records in the event that the distress action is determined to be within this exemption, therefore enabling those records to be released, and as to the reasonable steps to be taken in handing the documents over, and so on, under the direction of the Minister for Health. So, we will look at how that will be practically implemented. However, as I have indicated, there is merit in protecting both the practitioner and members of the public in this regard, and this measure is worthy of our support.

I note that the definition of 'medical practitioner' is taken from some other legislation and is somewhat expanded, and that has a question mark hanging over it. I note that the legislation relating to psychologists is also to be amended, including the definitions under that legislation. That is currently under review in this parliament, and it will have a much more extended definition provision. So, there are some aspects as to those to whom this measure should apply, and not just the general local GP who has closed their practice, for example, or failed to pay their rent or make payment on the security of records, and who then become exposed to abuse and, in particular, publication by others.

When the Hon. Lea Stevens was the minister for health in the Rann government this issue was raised at the time of her reign by the former member for Finniss (Hon. Dean Brown), who was the shadow minister for health.

He raised this issue because, again, there had been a threat to the privacy of records found on location—in that case, as I recall, it was an abandoned premises—and it was important to ensure that something was done about it. She indicated (to use her words) that she would fix it. That was in the early days of the Rann government but, regrettably, we did not see any documentation or proposed legislation during the term of the Hon. Lea Stevens, and so the matter was not resolved.

This issue again became relevant in 2006, when it was raised with the current Minister for Health (Hon. John Hill), who said on ABC Radio that he would absolutely do something to protect the rights of both patients and doctors. I do not know why it has taken two health ministers to promise doing something about this (albeit taking no action) or why the member for Hartley has to raise this matter—I would assume with the endorsement of the government members—in this parliament. Why, six years into this government, after there has been public alert and debate on this issue with two ministers, has this matter not been attended to? That is the concern we raise, and we would like some answers.

Time expired.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND (Heysen) (10:47): The Attorney-General is pre-empting me in some ways, because I do rise in support of the bill and, like the deputy leader (the member for Bragg), I have some puzzlement over why the member for Hartley is introducing this legislation. My suspicion is that it is because the government wants to build up the stocks of the member for Hartley so that, at the next election, she can say that she has been an effective member because she has managed, in her short time in this place, to solve a problem which the government has been aware of for the entire time that it has been governing but which it has chosen not to address, and now, suddenly this morning, there are certainly moves to get this matter not only debated but voted on so that it can progress to the upper house and be finalised within a very short time.

As I said, the Attorney-General was, to some extent, pre-empting me because I was interested to see the definition of a 'health practitioner'. When you think about it, the Landlord and Tenant Act (I think from 1936) is getting a little out of date. The member for Bragg pointed out that we do already have some exemptions for cattle and, interestingly, an exemption on distress for rent for sewing machines, but only if they are owned by females. That is a very unusual provision to still have in our legislation, given that the government has addressed issues about whether people are in de facto relationships or whether they are in domestic relationships, and there has been all sorts of tidying up done in order to be politically correct—so this, to me, seems to be a little odd.

However, the problem that arises here, of course, relates to the nature of medical records, which are really rather like legal records kept by legal practitioners in their files. The problem is that, in the Landlord and Tenant Act as we now have it, there is, for instance, this provision about the exempting of cattle. There is also a provision in section 19 of the act about the rights of an owner of agisted cattle, and that is where the problem arises which we are addressing with this bill.

A landlord who has not been paid his rent is allowed to, in certain circumstances, after going through certain procedures, take possession of the premises again and lock them up against the tenant and keep or distrain the tenant's property. He is allowed to do certain things and, ultimately, to sell the tenant's property (in some circumstances) to make good the money that is owed by way of rent.

The difficulty which arises and which this parliament has previously addressed is what happens if you do that on a property where the cattle on that property are under the control of the tenant but are actually owned by someone else, perhaps someone who is agisting their cattle on the property. Parliament previously thought about that and put in a special provision for a situation where items taken by the landlord under these distress provisions do not belong to the landlord who has come in. They do not belong to the tenant, they do not belong to the landlord, and what is to be done about that? So, there is a special provision about the rights of the owner of agisted cattle or, indeed, an under-tenant or a lodger.

In the case of medical records, there is a person with a third party interest who is not necessarily the owner of the records. Traditionally the medical practitioner owns the records they make on a patient—the patient does not actually own them—just as a legal practitioner owns the record they make for their legal file. The client may have an interest in them, but they do not have a right to that legal file, and can normally only get it if they pay the fees that are due on the file.

So, there is this difficult question: the landlord has come in and taken possession of the premises and therefore taken possession of everything in them. The health practitioner may well be the owner of the files relating to the patient. The problem is that the person with the interest in them, who may have no legal right to them and no legal title to the record, does have a genuine interest in them and may need to get them so that they can go about their business of finding another doctor or health practitioner and get advice elsewhere. That person needs to be taken care of; we need to address that issue.

I will not use up my whole 10 minutes, but I suggest that, when you look at the bill, this is one that really deserves to be brought into the 21st century. As I said, it seems to be a little odd when you have provisions that say you have a power, for instance, to distrain corn and hay but there is no mention of barley, one of the big crops in this state. Does wheat come within that?

Mr Williams: Yes.

Mrs REDMOND: In any event, I am sure—

Mr Williams interjecting:

Mrs REDMOND: The Attorney-General; he is not the Auditor-General. I am sure we can come up with certain agricultural products that would not fall within the idea of corn and hay. Then, as the member for Bragg pointed out, section 43 provides for an exemption of cattle and vehicles, that is, cattle and vehicles at livery with all saddles, bridles and other harness appertaining thereto. There is also section 44, regarding the exemption of sewing machines: 'It shall not be lawful to distrain any sewing machine, typewriting machine, or mangle, the property of or under the hire to any female person, whether belonging to the tenant or otherwise...'

I want to make the point that there is a particular problem. It should have been corrected by the government before now but if, by any chance, there is consideration of doing anything else I suggest that this act is one that parliament would be justified in reviewing before we get to its centenary, so that we can bring it into the 21st century and remove some of the obsolete references therein.

The Hon. R.B. SUCH (Fisher) (10:54): I commend the member for Hartley for bringing in this measure. As I understand it, it arose from an issue in her electorate where someone wanted to access their medical records and was having difficulty doing so. I have experienced the same problem where someone wanted to access records. The surgery, or the clinic which the person had originally attended no longer existed. You needed Sherlock Holmes and a team of tracker dogs to find out where the records were. You then had to try to access those records and pay out quite a significant amount of money for doing so.

This is a worthwhile measure, and I think it is a bit churlish to criticise someone for trying to change the situation at this stage. I guess we could all have tried to change it earlier, so I think it is a pointless exercise to say that we should have done so.

One point I would make is that I note that my GP now uses a computer, and that is helping because, in the past, many medical records were unable to be read anyway. I do not want to be too critical of those in the medical profession, but it does help if you can actually read what they have written, and that is being assisted now because they are using computer facilities. I commend this bill. I think it is a good measure, and I trust we can get it through quickly.

Mr WILLIAMS (MacKillop) (10:56): As has already been pointed out by at least two of my colleagues, the opposition supports this bill. It is a sound measure. I could go on and talk about my personal feelings about who should own medical files, because the issue arises from time to time. It is a problem that we have endured for some years in country medical practice where, when we are trying to attract doctors to country practices, quite often—it does not happen nearly as much now as it did previously—they have had to pay substantial amounts of money to buy into the asset base of the practice, which of course includes the medical files and that, in some cases, historically, has been a disincentive. So, there is a whole range of issues, in my opinion, concerning the ownership of medical files, but that is a much bigger debate than the one we are having here today.

The small measure that has been brought forward today, I think, is a sensible measure, but I really want to talk about the way it has been brought forward because it is most interesting and most instructive about this government. This government is more about the politics than actually doing what is right. This matter, as has been pointed out, has been brought forward on a significant number of occasions; it is not something which has just come to light. This government has deliberately, in my opinion, chosen not to do the right thing for a considerable period of time but now has seen a political opportunity.

I guarantee that a newsletter will go out across the member's electorate of Hartley, a newsletter of self praise for the member about getting this matter addressed. I have no doubt that this particular piece of legislation will be highlighted in the member's newsletter. The reality is that the previous member for Hartley, Joe Scalzi—

Ms Portolesi: Did nothing.

Mr WILLIAMS: The member says 'did nothing', but in her own second reading explanation she points out that back in 2005 this matter was raised by the previous member for Hartley. I can tell the house that the previous member for Hartley, Joe Scalzi, was not a member who ignored his constituents. In fact, he managed to keep winning that seat against all the odds.

Members interjecting:

The SPEAKER: Order! The member for MacKillop.

Mr WILLIAMS: Thank you, sir. They are a disorderly lot, and they do not like hearing the truth. I would ask any of those members opposite who will not accept that Joe Scalzi was a very hardworking local member to discuss the matter with Quentin Black and ask him how hard a worker Joe Scalzi was, because Quentin Black tried for eight years to convince the good people of Hartley that Joe Scalzi was lacking. Quentin Black knows better than anyone, so go and talk to him about it. Joe Scalzi was one of the hardest-working local members in this parliament, and that is why he managed to keep retaining the seat.

I am bringing this matter to the attention of the house, because I know Joe Scalzi brought this matter to the attention of the government, and the government chose not to do anything about it because it did not want Joe Scalzi, the then member, who was working for his constituents, to get any political gain.

That is one of the problems with this government. This government is not about good governance; it is not about making good law; and it is not about doing the things that should be done, as urgently as possible, for the citizens of this state: this government is about playing politics.

I commend what is finally happening in this matter and, as I have said, the opposition supports it. But what I do not commend is this government deliberately--and they do it on a regular basis—choosing to ignore any matter that an opposition member brings to the government that has been raised within the member's constituency, involving a suggestion as to what might be done by the government to fix a problem.

In this case, the government has sat on this matter for a number of years and, all of a sudden, when the government has a member in the seat—and it is a marginal seat—not only does the government not bring it forward as a piece of government business, which is what should happen, but the government, purely for political purposes, makes sure that it comes forward as a private member's bill. I commend the bill; I do not commend the process. That is the problem—

Mr Rau interjecting:

Mr WILLIAMS: It's all right, John. Steady up.

Mr Rau interjecting:

Mr WILLIAMS: The member for Enfield may well have just given himself another four minutes to think about it.

An honourable member interjecting:

Mr WILLIAMS: No, I won't do that to him, because I know he is anxious, and he obviously has some really smart thing he wants to say. The problem here is that the process we see before us today demonstrates a fundamental problem this government has. It is all about politics; it is not about doing the right thing for South Australia and South Australians.

Mr RAU (Enfield) (11:03): As always, it is a daunting prospect to speak after the member for MacKillop, particularly on his favourite topic, which is playing politics. I know that last night, when he voted in favour of giving trade union officials access to the workplace, without regard to the views of the employer, in order to inspect the workplace in terms of work safety, etc., he was not playing politics. What he was actually doing was demonstrating a heartfelt commitment to the rights of trade union officials to get into the workplace and to start giving a few tips to employers!

But that has really taken me off the main theme. In the situation where you have a landlord, a medical practitioner and a patient, the relationship between those three different individuals is actually a triangle: there is a relationship between the landlord and the practitioner, which has nothing to do with the patient; there is a relationship between the practitioner and the patient, which has nothing to do with the landlord; and, in all probability, there is no relationship at all between the landlord and the patient. It is undoubtedly the case, as a matter of law and as a matter of common sense, that the notes which are made—

Mrs Redmond interjecting:

Mr RAU: They do not necessarily coincide, but in this case I think they do. The notes made by a medical practitioner are the medical practitioner's own property, and that is a reasonable and sensible thing. It is also sensible that from time to time, for various good reasons, the patient might wish to have access to those notes, and that could be because the patient, for example, requires treatment some years down the track and an accurate record of their medical history may be a very important element in a subsequent decision to be made about their medical management. The real issue here is access by patients to records kept about them, but legitimately held as the property of another person. So, the issue is access.

I am not entirely sure how one could best go about achieving the very appropriate problem-solving exercise of granting patients access to their own records. Whether or not the appropriate way is to do as this amendment seeks to do, which is to prevent a landlord, who may well have a legitimate complaint against a tenant who is a doctor, from seizing their records, or whether it is to guarantee, in any event, access to those records by the patient, I am not sure.

I am sympathetic to the landlord who might be seeking to apply pressure on the doctor. After all, the landlord knows that by seizing those records they are actually applying pressure and, in a sense, making it harder for that doctor to go about their business, which should encourage the doctor, presumably, to cough up the rent, and that is not an unreasonable thing for a landlord to want them to do.

By the same token, for the landlord then to deny access by holding those records and saying, 'My right to those records denies you, the patient, the opportunity of having recourse to those,' is clearly unreasonable. So, whilst I am not sure that this is the perfect solution to the problem, it certainly is a solution. The way I see it, perhaps it should be that, whatever is done in terms of seizure of these records by a landlord, a legitimate claim by a patient for access would be given priority. Whatever way it is done, it is a triangle.

I would perhaps have picked another element of the triangle, which would be to let the commercial relationship between the landlord and the non-paying doctor continue to be dealt with in a normal commercial way, but to interpose rights against the distraining landlord in favour of a patient who has a legitimate interest in accessing those records because, after all, the one thing that is clear is that the landlord has no legitimate interest in accessing those records. They may have a legitimate interest in holding them—

Mrs Redmond interjecting:

Mr RAU: —indeed—but they have no legitimate interest in accessing those records. So, this is a very difficult tripartite situation where everybody has a legitimate interest: the doctor has the property right in the actual physical records, the patient has a legitimate interest in those records being accessible from the point of view of the ongoing health regime, and the landlord probably has a legitimate interest were it not for what we are now doing regarding the rights of the patient in seizing those records in order to apply pressure to a non-paying medical practitioner.

There are a number of ways that you could do it, and this is one of them. As I said, from my point of view, I would simply give the patient access as against anybody, including a distraining landlord. So, I think it is a worthwhile reform in that the end result of this reform means that patients are not going to be denied access to those important medical records simply because of a dispute between the landlord and the tenant doctor. I guess the outcome is okay: it is a good outcome, but we could argue about the methodology.

This does, however, raise another matter that members of parliament might want to consider; that is, in South Australia there is no doctor-patient privilege, nor is there any privilege between a priest and a confessor (if that is the right way of describing it). That means that, in South Australian courts, it is possible, for example, for an insurance company to subpoena the medical records of an individual who is engaged in litigation against their insured. They have the right of access to those whether or not the patient wishes them to have access.

It is interesting to note that in Victoria, Tasmania and the Northern Territory those records are privileged, as are the communications between a priest and a parishioner or a confessor. One might say that, if we extended that legal privilege to a patient to the effect that they could determine whether or not their medical records would be released on subpoena, we would be denying the courts the opportunity of getting to the truth in many matters. but the jurisdictions that have these solutions in place have solved that. It is a matter for comment in the course of the proceedings before the court for the parties before the court to say, 'Mr Smith has medical records with Dr Bloggs; Mr Smith has chosen to rely upon his privilege and not to release those records. We do not know what is in those records but we can infer, because of Mr Smith's refusal, that there would be nothing in those records that would help Mr Smith.'

To some extent it is a two-edged sword whether or not a litigant chooses to rely upon that privilege, but I do think that at some stage we should consider whether or not we extend some of these privacy provisions to enable individuals to protect their medical records from subpoena if they choose to do so. It does happen in Victoria; it does happen in Tasmania; it does happen in the Northern Territory; and the wheels have not fallen off the cart in any of those jurisdictions.

Another thing, of course, is that in South Australia we do not have direct access to insurers when the insured has disappeared off the radar screen. In places such as the Northern Territory, for example, if the insured has become insolvent and disappeared, you simply find out who they were insured by and you sue them directly. In South Australia that is not the case. It causes a great deal of delay, complication and expense in litigation. We could do a lot worse than copy the Northern Territory provisions, which provide direct access to the insurers so that you can just get on with it and resolve the issues rather than arguing about procedural nonsense.

Coming back to the main point, this is a useful reform, the outcome of which will be positive. I am just not sure whether in the scheme of things the methodology is perfect, but I guess in the end it does not really matter: the patients will be protected.

Ms PORTOLESI (Hartley) (11:13): I would like to thank all those who made, on the whole, a positive contribution to this bill, including the member for Heysen and the member for MacKillop, who were unnecessarily nasty, and I am disappointed, but let us move on. The member for Heysen asks why I am doing this. Thank you for that question. I am doing this because I care; because I am an active local member. An issue about Joe Scalzi was raised by, I think, the member for MacKillop. All I want to say about that is that the constituent who first brought this to my attention shortly after I was elected told me that she had first brought this to Joe's attention towards the end of 2005 and that he had been unable to do anything or, for one reason or another, had done nothing about it. She did not say that he tried and the government had done nothing: she said that he did not do anything about it. I am just being honest and clear about that.

The member for Bragg raises a valid point about the definition of 'health practitioner', which now includes chiropractors, dentists, optometrists, physiotherapists, podiatrists and psychologists. We did that because they are regulated by state legislation and we thought that would be a tidy thing to do. I think that Victoria perhaps also includes in its definition (in dealing with this kind of legislation) Asian medical practitioners or Asian medicine practitioners—I am not 100 per cent sure, but we thought this was a very tidy definition.

Can I just say on that point that I did distribute the bill to the AMA nationally and locally and I sent the bill to all those professional associations that I have just listed and we have had no comment or feedback. That was—

Ms Chapman: I have.

Ms PORTOLESI: The member for Bragg says that she has, and I look forward to her contribution about that. I would like to address the issue of why it has taken this long. I am not familiar with the case in relation to the member for Little Para, but quite frankly we had hoped that the warring parties would resolve the matter themselves without the need for legislative intervention. I am sure that members opposite would be the last to advocate a regulated or legislative solution, but it became pretty obvious to me that the situation was not getting any better, so the government was agreeable to my progressing this in such a form.

The Minister for Health, to his credit, has done exactly what he promised me that he would do after I brought this to his attention in the media. He convened, expeditiously, a working group comprising a representative of the AMA, an anaesthetist from Flinders University, and officers from health, the Crown Solicitor's Office and policy and legislation, and they looked into this matter.

The bill does not purport to address the broader issues that have been raised by, say, the member for Enfield on the storage, access and privacy of medical records. As I have said in my second reading speech, that is a much broader cross-jurisdictional issue. This is a very simple bill designed to address a very specific problem. I am doing this because it matters to my constituents, and I look forward to the support of members.

Bill read a second time and taken through its remaining stages.

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