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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-30 Daily Xml
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LANDLORD AND TENANT (DISTRESS FOR RENT—HEALTH RECORDS EXEMPTION) AMENDMENT BILL

Second Reading

Second reading.

The Hon. I.K. HUNTER (17:01): I move:

That this bill be now read a second time.

This bill arises from a case in which a medical practitioner operating out of premises on Glynburn Road walked out of his practice leaving, among other items, the medical records of his patients at his former surgery. The medical practitioner at the centre of the matter made no attempt, prior to abandoning the practice, to secure the medical records of his patients. The landlord took possession of the premises and the medical records.

When patients of the practice, having been made aware of the circumstances, requested their medical records, the landlord refused, agreeing only that the patients would be provided with copies of their records upon payment of a fee. The landlord claimed the right to retain the records as assets of the company and, alleging that rent was unpaid, initiated (or threatened to initiate) proceedings for distress over the assets, including the medical records.

Arising from this situation, the member for Hartley in another place introduced this private member's bill. It is a simple remedy to a local dispute but one which seems, judging from the remarks in the second reading speeches in the other place, not unknown to other members. I think it was the member for Fisher who commented that he had knowledge of a similar experience in his electorate some years ago.

By a relatively simple amendment to the Landlord and Tenant Act, the member for Hartley seeks to remedy a problem for her constituents, which may end up helping many hundreds, or perhaps thousands, of others who might find themselves in a similar predicament at some time in their life. It is important to note that this bill does not in any way seek to challenge the ownership of medical records. The courts normally hold them to be the property of the practitioner who generates them, and this bill does not intrude into those rights.

The member for Hartley makes the point that medical records should not be treated like other assets—furniture and such. Now, we readily concede that the resolution proposed in this bill may not be the most elegant, and, no doubt, the lawyers in this chamber would prefer something more thorough, but when the Minister for Health convened a panel of advisers to look into this matter they reported back that the issue is a very complex cross jurisdictional legal problem going to issues of records storage, privacy concerns and access.

As many members know, trying to get commonwealth and state agreement on even major issues is a long and arduous road, let alone getting these things fixed for less important matters that are not as immediate a concern in other jurisdictions. It would be tough, indeed. The member for Hartley, however, was not prepared to explain to her constituents that, because of the complexities of the case, she could do nothing for them. Instead, she decided to opt for this very common sense amendment which would give her constituents—and dare I say it—our constituents some relief from the distressing circumstances in which they have found themselves through the operation of the Landlord and Tenant Act.

The remedy of distress is a landlord's right to enter premises and seize a tenant's goods to satisfy rent arrears. It has been abolished in so far as it applies to residential tenancies. The remedy is available in respect of commercial tenancy agreements regulated under the Landlord and Tenant Act of, I think, 1936.

Part 2 of the Landlord and Tenant Act sets out the procedure to be followed by a landlord when seeking to distrain goods for underpaid rent, and sets out the rights of the landlord and tenant. Goods are defined broadly to mean cattle, horses, livestock, furniture, goods, chattels, effects or things which are by law liable to be distrained for rent, and includes lodgers' goods and, in some cases, agisted cattle. This definition would also include medical records.

Certain goods are, however, expressly quarantined from distraint. These include sewing machines, typewriting machines and mangles belonging to a female person, cattle and vehicles at livery, with all saddles, bridles and harnesses belonging or appertaining thereto, and wearing apparel, tools and implements of trade and household requisites to the total value of $20. It is a simple matter then to add in medical records as one of those items not to be distrained

Specifically, this bill proposes that a landlord must not distrain health records for rent and that, if a landlord is currently doing so, that landlord must take reasonable steps to return the records to the health practitioner to whom they belong. This will then enable the patients concerned, through their current doctor, to request a copy of their records from their former doctor in line with AMA policy and guidelines.

Additionally, the bill provides for situations where the former health practitioner is no longer interested in those files. In this case, the Minister for Health may direct delivery of such records to a person nominated by the minister, and that could possibly be to the patients concerned. I commend this bill to the chamber, and I place on record my appreciation to the member for Hartley, Grace Portolesi, for her initiative in bringing forward this bill.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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