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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-07-29 Daily Xml
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LANDLORD AND TENANT (DISTRESS FOR RENT—HEALTH RECORDS EXEMPTION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 June 2008. Page 3398.)

The Hon. R.D. LAWSON (1:21): Liberal members will support the passage of this bill. However, it does raise some issues of principle and it does have a number of weaknesses which ought to be recorded. The issue which this bill seeks to solve was first raised by the former—and I should say the future—member for Hartley, Joe Scalzi, widely known as the Lion of Hartley. To her credit, the present member, Ms Grace Portolesi, has pursued the issue and introduced this bill; but she herself acknowledges that it touches only—I think to use her words—the tip of the iceberg.

As the member for Enfield noted in another place, this bill touches the surface but does not really provide a satisfactory solution to a difficult problem. The issue arose because a medical practitioner ceased practising from rented premises. The landlord was owed rent. He seized the medical records and, for all we know, other assets of the medical practice. The landlord hoped to re-let the premises to a new medical practice. In the ordinary course of events, any new practitioners wanting to rent the premises would want the medical records so they could take advantage of the goodwill associated with the premises, namely, the fact that the patients who were accustomed to attending the premises would continue to do so in the future and any new medical practitioners practising from those premises would need the records.

More cynically (and I am not accusing this particular landlord of such thoughts, because I am not aware of them) and in general, the landlord of an established medical clinic might not be very happy if the doctors and their patients decide to move down the street and occupy other premises. Such a move would obviously reduce the potential rental value of the landlord's now vacant medical clinic. In most cases, of course, one would imagine that the medical practitioners would be keen to sell the goodwill of any practice and would therefore keep the medical records, but that did not happen in this particular case.

The result was that the landlord took possession of the medical records as security for the payment of rent, but the doctor did not meet his obligations and no new doctors took over the lease. This disadvantaged the patients of the practice, because they could only obtain their own medical records if they were prepared to pay the landlord what he termed an administration fee. There is no doubt about the legal right of a landlord to distrain for rent, but that is only a very small part of the wider issue of the rights of patients in relation to their medical records.

The legal situation in Australia was settled in the case of Breen v Williams. In this case, the plaintiff, Ms Breen, sought to access the records of a surgeon who had provided advice and treatment in relation to silicon breast implants. Ms Breen was contemplating suing the manufacturer of the breast implants and she, not unreasonably, believed that the surgeon's records could be relevant to those proceedings. She was not complaining about the surgeon's performance; she just wanted access to her records that were in his file.

The surgeon said he was prepared to provide Ms Breen's solicitor with copies of her records if she agreed to release him from liability in relation to his treatment. She was not prepared to do that. The surgeon maintained that the records belonged to him, and they contained 'conclusions, commentary and musing', which were private to him and which would be recorded differently if his patients were entitled to have access to their records at any time. He expressed concern that his patients would be caused confusion and unnecessary worry and stress if their notes were made available to them without adequate explanation. He offered to provide Ms Breen with a report that contained what he considered to be the relevant information for her purposes, but he would not agree to give her access to the original notes themselves.

The High Court in that case followed established common law principles and affirmed that a doctor has property in his own notes and that a patient has no legal right of access to those notes. There is no implied term in the contract that exists between a doctor and the doctor's patient that the patient will have access to the medical records kept by the doctor. I should mention for completeness that the doctor's notes are quite different from X-rays, specialists' reports and other reports that the doctor may hold but for which the patient has paid. Those X-rays and other documents are the property of the patient, and the patient is entitled to get them.

I should mention in passing that the situation that arose in the case of Breen v Williams would not arise in relation to patients in public hospitals. As members would be aware, they can use freedom of information legislation to access their medical records subject only to an important exemption for information that might be harmful to their health or wellbeing. That is in accordance with the FOI legislation. It should also be mentioned in passing that a patient can obtain access to medical records by means of either discovery or subpoena in civil proceedings if such proceedings are either underway or contemplated.

Unlike Australia and the United States, there is a principle that a doctor and patient enjoy a fiduciary relationship, and that relationship requires the doctor to divulge the contents of his notes. In the United Kingdom, the position was previously the same as Australia. However, in that country the Access to Health Records Act 1990 provides a general right of access by individuals to all medical records, both public and private. The situation in Canada is similar to that in the United States. I mention that because this is an issue that ought to be addressed in Australia. It has not been addressed, and this bill does not address it either.

In Breen v Williams there is an important passage from Justices McHugh and Gaudron, where they said, in effect, that this was not a case where judicial activism allowed judges to devise new rules: the rules that they were examining were well established common law rules and that it was for the legislature to intervene if appropriate. I believe it is appropriate that the legislature should intervene and that we should define a proper right of access for patients. However, rather than biting that particular bullet in this case, our Attorney-General has decided to avoid the hard work and simply provide some electoral assistance to a factional colleague. This bill is not even a bandaid. It is a bit like seeking to bandage a grazed knee with a minty wrapper dipped in water; it is virtually useless. All we can say is that we have done something, but I suppose, as the saying goes, something is better than nothing.

The bill will exempt from distraint for rent medical records. It will not stop a doctor from selling the records to a multinational corporation without the patient's consent. It will not stop a podiatrist from throwing his records on the dump, and it will not prevent a dentist from shredding his records. If an irresponsible health practitioner decides to abandon his or her practice and in the dead of night removes those assets which might have some value but leaves his accounts behind, the landlord cannot, even under this legislation, seize the accounting records.

This last point, I think, is a serious additional limitation on this legislation. It arises because the word 'record' is very widely defined to include not only the clinical records but also the financial records of a practice. The question might be: why should a defaulting health practitioner be in a privileged position in relation to his accounting records? After all, those records might be of some use to a landlord who seeks to recover unpaid rent.

It is proposed in this bill that there be a special regime for any landlord who has already distrained for rent and holds the medical records of a practitioner. Such a landlord must take reasonable steps to return the records to the health practitioner unless he or she is otherwise directed by the Minister for Health.

Given the time, I will not pursue a number of questions, which ought to have been answered and would ordinarily be answered during the committee stage. I will put the questions on the record, so that in future when this matter is revisited, as undoubtedly it will be, there is some note of them. My questions are:

1. Are there other instances, of which the Health Commission is aware, of cases where landlords are holding or have held medical records for distraint apart from the particular case referred to by the member for Hartley?

2. What has been the experience in relation to resolving those issues, and what steps have been taken in those cases to resolve the issues?

3. In relation to this particular case, I believe that the council should have been informed of the arrangements, which I understand were ultimately made in relation to the resolution of that case.

4. As I have mentioned, the new regime will allow the Minister for Health to have a role in relation to such records and, in particular, a power to direct that records be disposed of in a certain way. I believe that we ought to have been informed of whether any policy has been developed by the Minister for Health or his department in relation to the directions which might be given if such cases arise in future.

As members will be well aware, it is late in this session. We believe the bill is better than nothing, and we are happy to see it pass this evening.

The Hon. I.K. HUNTER (01:34): I thank all members for their contribution on this bill and for their indications of support. As I said in my second reading explanation, we do not pretend that this bill will address all the broader concerns, particularly those raised by the Hon. Mr Lawson in his speech, but it does have these benefits: it is simple, it is quick, and it is a common-sense solution to a problem that already exists.

I will take the questions of the Hon. Mr Lawson on notice for the next time this bill is opened or when the broader issues are addressed by government. I will not delay the council any further, and I look forward to the speedy passage of this legislation.

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

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