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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-10-16 Daily Xml
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STATUTES AMENDMENT (HEALTH INFORMATION) BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:36): Obtained leave and introduced a bill for an act to amend the Health Care Act 2008 and the Mental Health Act 2009. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (15:36): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill seeks to ensure the confidentiality of medical information and privacy in medical appointments is upheld for adult South Australians, regardless of whether or not their injury or illness is related to their employment. Existing protections are not clear, resulting in some confusion and anomalies among employers, workers and health professionals.

The problems caused by the lack of clarity leave South Australian employers vulnerable to claims of coercive, intrusive, inappropriate and discriminatory behaviours and employees being vulnerable to inappropriate directions from employers. Some of the areas of contention include:

Employers attending workers' medical examinations;

Employers seeking inappropriate levels of detail about workers' medical conditions;

Workers being directed to attend company nominated doctors;

Workers' medical information being passed on to third parties including superannuation funds, and insurers (other than workers compensation insurers) without consent;

None of the proposed amendments affect an employer's obligations under the Work Health and Safety Act 2012.

This Bill introduces amendments to ensure that a person's personal information obtained by someone engaged in connection with the operation of either the Health Care Act 2008 or the Mental Health Act 2009, is not disclosed to a person's employer unless authorised under that Act.

This change will complement and reinforce the current confidentiality regime contained in the Commonwealth Privacy Act 1988 and the Health Practitioner Regulation National Law (South Australia) Act 2010.

Under common law, whether a direction to attend a medical examination is a lawful and reasonable direction, depends on the circumstances of each case. This has led to a position of uncertainty where both employers and workers are left to make their own assumptions about the lawfulness and reasonableness of any such direction.

Moreover, the inherent power imbalance between an employer and a worker can result in workers considering themselves obliged to allow actions directed by an employer, even when they appear to contravene their privacy or autonomy. This includes allowing an employer to direct them to a medical practitioner of the employer's choice or providing the employer access to their medical records when this is not appropriate, warranted or authorised.

By inserting section 94 into the Health Care Act 2008, this Bill will provide assurance to all parties and ensure that workers are only required to attend medical examinations where there is adequate justification. This reflects accepted community standards that a person is entitled to attend for treatment a medical practitioner of their own choice.

In addition, this amendment will ensure that an employer will not be able to request from a worker, that worker's medical information unless there is a sound basis for a belief that the worker is not fit to perform their normal duties or modified duties.

Finally, workers will sometimes feel obliged to allow their employer to accompany them when they attend a medical examination and the medical practitioner may assume (because of the employer's presence) that the worker has consented to the employer being present. By inserting section 94A into the Health Care Act 2008, this Bill will prevent this situation occurring unless there is freely given consent on the part of the worker.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Health Care Act 2008

4—Amendment of section 93—Confidentiality and disclosure of information

This clause amends section 93 to make it clear, for the avoidance of doubt, that a person is prohibited from disclosing to a person's employer personal information relating to the person obtained while engaged in connection with the operation of the Act except to the extent that the disclosure is authorised or required under section 93.

5—Insertion of sections 94 and 94A

This clause inserts two new sections.

94—Requirement to attend medical examination or provide medical information

This section prohibits an employer from directing an employee to attend a medical examination. This prohibition is subject to the qualification that the employer may direct an employee to attend a medical examination if the employer believes on reasonable grounds that, because of an injury or illness—

the employee is not fit to perform the inherent requirements of his or her position or the requirements of any applicable modified duties; or

there will be a risk to the employee's health or safety if he or she continues to perform the inherent requirements of his or her position or the requirements of any modified duties.

An employer who directs an employee to attend a medical examination must give the employee written notice of the direction. The notice must set out the grounds on which the employer believes the examination is necessary. The direction cannot include a requirement for the employee to attend a particular medical practitioner.

The section also prohibits an employer from requesting an employee to provide medical information to the employer unless the employer has reasonable grounds for believing that, because of injury or illness—

the employee is not fit to perform the inherent requirements of his or her position or the requirements of any applicable modified duties; or

there will be a risk to employee's health or safety if he or she continues to perform the inherent requirements of his or her position or the requirements of any modified duties.

An employer does not have reasonable grounds for believing that an employee is not fit to perform the inherent requirements of his or her position, or the requirements of modified duties, or that there is a risk to the employee's health or safety, because of an injury or illness unless—

the employee has stated to the employer that an injury or illness is affecting his or her ability to perform the inherent requirements of his or her position or any modified duties; or

the employee appears to the employer to be unable to perform the inherent requirements of his or her position, or any modified duties, because of an injury or illness; or

the belief is supported by medical information lawfully obtained from the employee; or

the belief is otherwise supported by evidence.

The section does not derogate from a provision of or under any other Act authorising the issue of a direction of a kind to which the section applies.

For the purposes of the section, employer includes a person who engages another to perform work as an independent contractor and employee includes a person who is engaged to perform work as an independent contractor.

94A—Employer not to be present at examination

Section 94A prohibits an employer, or an employer's representative, from being present at a medical examination of an employee unless the employee consents to the presence of the employer or representative at the examination.

Part 3—Amendment of Mental Health Act 2009

6—Amendment of section 106—Confidentiality and disclosure of information

This clause amends section 106 to make it clear, for the avoidance of doubt, that a person is prohibited from disclosing to a person's employer personal information relating to the person obtained in the course of administration of the Act except to the extent that the disclosure is authorised or required under section 106.

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

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