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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-03 Daily Xml
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LANDLORD AND TENANT (DISTRESS FOR RENT—HEALTH RECORDS EXEMPTION) AMENDMENT BILL

Introduction and First Reading

Ms PORTOLESI (Hartley) (10:39): Obtained leave and introduced a bill for an act to amend the Landlord and Tenant Act. Read a first time.

Second Reading

Ms PORTOLESI (Hartley) (10:40): I move:

That this bill be now read a second time.

This is a very simple and short bill, designed to rectify a significant problem in my electorate, which was brought to my attention in 2006 and which has caused much distress to hundreds, and possibly thousands, of residents in the eastern and north-eastern suburbs. Members may recall the much publicised case of the Glynburn Road medical practice in Tranmere, where patients have been denied access to their medical records due to a tenancy dispute between the landlord and the medical practice.

As I have stated previously in this place, it has never been my intention to become involved in the merits or otherwise of a dispute between the two parties which resulted in the closure of the practice and the lock-down of the building. My only concern in all of this has been the consequences of the dispute for my constituents.

By way of background, for the interest of members, following the closure of the practice my constituent, who first brought this to my attention, sought access to her files, which were physically locked away in the building that was the medical practice. She was advised that she could have access to her files if she was prepared to pay an administrative fee of $55 per hour.

She had 50 years worth of medical records, so one can imagine how prohibitive such a fee was for her, and obviously she declined the offer. In response to this, my constituent contacted her then member of parliament, Joe Scalzi (this is back in 2005), who was—

An honourable member interjecting:

Ms PORTOLESI: Yes, who is going to make a comeback, and I fear that comeback. He was unable to help and then, following the change of government, brought the matter to my attention.

An honourable member interjecting:

Ms PORTOLESI: The Lion of Hartley, Joe Scalzi.

Mr Venning interjecting:

Ms PORTOLESI: No, you are the big bad wolf, Ivan! I am in no way suggesting that the landlord has acted illegally; in fact, as the case unfolded it became clear that the situation was entirely legal, given that the Landlord and Tenant Act allows medical records to be distrained for rent. This bill does not challenge in any way the ownership of the medical records. I accept that they are very much the ownership of the medical practitioner who generates them; however, what is not so clear is what happens when the doctor is no longer interested in the files or is prevented from accessing the files and passing them on to patients. In this case it is worth noting that we are dealing without about 10,000 medical records.

The point is that the medical records should not be treated like other assets, property or furniture and, while the conduct of the landlord may be legal, questions do remain about whether it is appropriate and ethical. We are dealing with sensitive and confidential medical history, which is now not in the hands of either patients or doctors.

When I brought this matter to the government's attention the Minister for Health (Hon. John Hill) swiftly convened a group of experts in this field to advise him on possible courses of action. After much deliberation it was determined that this problem could be easily solved by a simple amendment to the Landlord and Tenant Act, which would add health records to the list of items which are exempt from distress.

As the minister's group discovered, and as did I, the case in Tranmere only touched the tip of the iceberg of what is a very complex and cross-jurisdictional policy debate around medical records' privacy, storage and access. South Australia cannot act alone in addressing this matter, and nor should it—it is very much a commonwealth matter.

Specifically, the bill proposes that a landlord must not distrain health records for rent and that if a landlord is currently doing so, as is the case in Tranmere, then that landlord must take reasonable steps to return the records to the health practitioner. This will then enable the patients concerned, through their existing doctors, to request a copy of their records from their former doctor. This is consistent with AMA policy and guidelines on the subject.

The bill, pessimistically, also provides for the worst case scenario, where perhaps the health practitioner, in this case Dr Utten, is no longer interested in these files. This is entirely plausible, as I imagine and I understand that most of his patients have had no choice but to move on to new doctors. In this case the Minister for Health may direct the delivery of records to a person nominated by himself, and it might be patients.

This bill restores the rights of my constituents to access their medical records, as other citizens are able. I would like to thank my constituents for refusing to accept such a rotten deal—an unfair and unacceptable set of circumstances. I would also like to place on the record my appreciation of parliamentary counsel, Mark Emery in particular, who has assisted me with my first bill—I do appreciate it. I commend this bill to all members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Landlord and Tenant Act 1936

3—Amendment of section 13—Interpretation

This clause inserts definitions of health practitioner and record.

4—Insertion of section 43

43A—Exemption of records of health practitioner

Proposed section 43A provides that a record of a health practitioner prepared or held in the course of, or for the purpose of, that practitioner's work as a practitioner is exempted from distress for rent.

If, prior to the commencement of this section, a landlord distrained for rent a record of the kind referred to in subsection (1), the landlord must—

Unless a direction is given under paragraph (b), take reasonable steps to return the record to the health practitioner to whose practice of the record relates; or

If directed to do so by the Minister for Health, deliver the record to a person nominated by the Minister for Health.

Debate adjourned on motion of Hon. I.F. Evans.

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