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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES
REVIEW SCHEME NO. 2) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Aged Care, the Hon Mark
Butler MP)
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES
REVIEW SCHEME NO. 2) BILL 2023
OUTLINE
The purpose of the Health Insurance Amendment (Professional Services Review
Scheme No. 2) Bill 2023 (the Bill) is to strengthen the operation of the Professional
Services Review (PSR) by addressing issues and ambiguities in the Health Insurance
Act 1973 (Health Insurance Act).
This Bill forms part of the Government's response to the Independent Review of
Medicare Integrity and Compliance undertaken by Dr Pradeep Philip (Philip Review),
which recommended a comprehensive review of the Medicare legislative framework
to ensure it is fit for purpose. The Philip Review was commissioned by the Federal
Government in November 2022 to respond to concerns about the operation of the
Medicare system, and the final report was released on 4 April 2023.
The PSR is an independent agency established under the Health Insurance Act and is
responsible for protecting the integrity of the Medicare program by investigating
whether a person has engaged in inappropriate practice. The investigation occurs by
review undertaken by the Director of the PSR (the Director) and in some cases by a
PSR Committee made up of health professional peers of the person under review
(Committee). The PSR protects patients and the community from the risks associated
with inappropriate practice and protects the Commonwealth from having to meet the
cost of services provided as a result of inappropriate practice.
A key amendment in the Bill is to better align requirements for qualifications of
Committee members with the purpose of the definition of inappropriate practice in
section 82 of the Health Insurance Act, and clarify how these requirements should be
applied. This will ensure that Committees can be properly established for reviewing
the provision of services by a practitioner with a rare combination of specialties or
where the practitioner is providing services in a different field from their formal
specialist qualifications.
The Bill also makes several other amendments to clarify and improve administration
of the PSR Scheme, including to:
• make it clear that a reference to a practitioner includes a practitioner who is not
currently registered, in order to ensure the PSR Scheme applies consistently;
• clarify the requirements for a person under review to notify a Committee that they
are unable to attend a hearing due to a medical reason, including that the person
must provide a medical certificate supporting this; and
• provide the Director with the power to extend the statutory timeframe of 12
months for deciding a matter if the person under review leaves Australia or if
there are ongoing court proceedings in relation to the matter.
Reducing ambiguity will ensure that a person under review is aware of how the PSR
Scheme should apply, as well as enable the PSR to perform its role more effectively.
Financial Impact Statement
There is no specific financial impact from the Bill.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES
REVIEW SCHEME NO. 2) BILL 2023
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
The Health Insurance Amendment (Professional Services Review Scheme No. 2) Bill
2023 (the Bill) will strengthen the operation of the Professional Services Review
(PSR) by addressing issues and ambiguities in the Health Insurance Act 1973 (Health
Insurance Act). It forms part of the Federal Government's response to the Independent
Review of Medicare Integrity and Compliance undertaken by Dr Pradeep Philip
(Philip Review).
The PSR is an independent agency established under the Health Insurance Act and is
responsible for protecting the integrity of the Medicare program by investigating
whether a person has engaged in inappropriate practice. The investigation occurs by
review undertaken by the Director of the PSR (the Director) and in some cases by a
PSR Committee made up of health professional peers of the person under review
(Committee).
The Bill makes amendments to clarify and improve administration of the PSR
Scheme, including to:
• better align requirements for qualifications of Committee members to the
definition of inappropriate practice and clarifies how these requirements should be
applied;
• make it clear, where appropriate, that a reference to a practitioner includes a
practitioner who is not currently registered to ensure the PSR Scheme applies
consistently;
• clarify the requirements for a person under review notifying a Committee that they
are unable to attend a hearing due to a medical reason, including that the person
must provide a medical certificate supporting this; and
• provide the Director with the power to extend the statutory timeframe of 12
months for deciding matter a if the person under review leaves Australia or if
there are ongoing court proceedings in relation to the matter.
Human rights implications
Right to Health
The Bill engages the right to health. Article 12(1) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) promotes the right of all individuals
to enjoy the highest attainable standard of physical and mental health.
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The Bill assists with the progressive realisation of the right of all individuals to enjoy
the highest attainable standard of physical and mental health by supporting the
integrity of Australia's Medicare program.
The PSR protects patients and the community from the risks associated with
inappropriate practice by health professionals and protects the Commonwealth from
having to meet the cost of services provided as a result of this inappropriate practice.
The PSR is the primary mechanism for monitoring the clinical relevance of
professional services provided under the Medicare program. The PSR supports the
right to health by sanctioning practitioners for providing services that are not
clinically necessary (including requiring repayment of benefits or disqualification
from Medicare) and by ensuring that the Commonwealth's limited resources are
directed to necessary and effective health services.
The PSR also performs a public health role in notifying the appropriate bodies, such
as the State or Territory body responsible for the protection of public health and safety
(for example, a State or Territory Health Department, Chief Medical Officer or Health
Care Complaints Commission) if it is suspected there is a significant threat to life or
health that becomes evident through the PSR process.
Non-compliance and inappropriate practice by health practitioners result in increased
Commonwealth expenditure on health services. Supporting the integrity of the
Medicare program ensures that health expenditure remains sustainable and continues
to be accessed and enjoyed by the community.
Right to Privacy
The Bill engages the right to privacy, as it provides for the production, disclosure and
collection of personal information, including health information.
The Bill requires that if a person under review notifies a PSR Committee that they are
unable to attend a hearing due to a medical condition, they must provide a medical
certificate supporting this. The Committee may also request further information from
the person, or require them to undergo a medical examination and provide a copy of
the report.
These amendments engage the protection against arbitrary or unlawful interference
with privacy. Article 17 of the International Covenant on Civil and Political Rights
(ICCPR) prohibits arbitrary or unlawful interference with an individual's privacy,
family, home or correspondence, and protects a person's honour and reputation from
unlawful attacks. This right to privacy can be limited, however, to achieve a
legitimate objective where the limitations are lawful and not arbitrary. In order for an
interference with the right to privacy to be permissible, the interference must be
authorised by law, be for a reason consistent with the ICCPR and be reasonable in the
circumstances. The United Nations Human Rights Committee has interpreted the
requirement of 'reasonableness' as implying that any interference with privacy must
be proportionate to a legitimate end and be necessary in the circumstances.
The Bill pursues the legitimate objective of supporting Medicare compliance by
encouraging attendance at Committee hearings and cooperation with the process. The
amendments seek to enable a Committee to have sufficient information to be satisfied
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that a person who is required to attend a hearing to give evidence has a valid medical
reason for their non-attendance. The new requirements are consistent with the position
taken by courts and tribunals in various jurisdictions.
To the extent that these sections limit the right to privacy, these limitations are
provided by law. Information provided under the Bill is used for the purposes of
assessing whether a person under review has a medical condition preventing them
from attending a Committee hearing, and not for other purposes. Any information
collected is subject to secrecy provisions in the Health Insurance Act, which restrict
the circumstances in which personal information may be disclosed.
These restrictions on the use of information ensure that the power to require the
production of personal information is only used for the purposes of compliance
processes and that any limitation on the right to privacy is lawful and not arbitrary and
that the power is susceptible to abuse. These provisions are necessary, reasonable and
proportionate to the objectives of the Bill, namely by ensuring that persons under
review attend hearings as required so Committees may more efficiently perform their
role to investigate inappropriate practice.
Conclusion
To the extent that the Bill may limit human rights, those limitations are reasonable,
proportionate and reasonable to support the integrity of the Medicare program and
ultimately, access to healthcare for all Australians.
The Hon Mark Butler MP, Minister for Health and Aged Care
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HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES
REVIEW SCHEME NO. 2) BILL 2023
NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Health Insurance Amendment
(Professional Services Review Scheme No. 2) Act 2023.
Clause 2 - Commencement
Clause 2 provides that the whole of the Act commences the day after it receives the
Royal Assent.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to this Bill is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other
item has effect according to its terms. This is a technical provision which gives
operational effect to the amendments contained in the Schedules. Schedule 1 amends
the Health Insurance Act 1973 (Health Insurance Act).
SCHEDULE 1 -- PROFESSIONAL SERVICES REVIEW SCHEME
Part 1--Former practitioners
Items 1 to 8
Items 1 to 8 add new subsections to sections 92, 106KC, 106KD, 106L, 106U,
106XA, 106XB and 106ZPR of the Health Insurance Act to clarify that references to a
practitioner in these sections are intended to include a reference to a person who has
been but is not currently a practitioner. Similar phrases such as 'profession of which
the practitioner ... is a member' in section 106KC and 'person who renders
professional services' in section 106XA are also clarified to include 'a person who has
previously been a member of a profession' or 'a person who has previously rendered
professional services'.
The term 'practitioner' is defined in section 81 of the Health Insurance Act to include
a variety of health professionals, most of whom are defined in subsection 3(1) of the
Health Insurance Act by their registration as a particular health professional under the
Health Practitioner Regulation National Law (National Law). There are a variety of
circumstances in which a person who was a registered practitioner may not be
currently registered. For example, a person's registration may lapse if they do not
renew their registration in time, or their registration may be suspended while under
investigation or cancelled by a court or tribunal for a finding of professional
misconduct.
The Professional Services Review (PSR) Scheme is intended to protect patients, the
community and the Commonwealth from the risks and costs associated with
inappropriate practice. The current definition of 'practitioner' makes it difficult to
apply the PSR Scheme consistently to achieve this objective if a practitioner becomes
suspended or deregistered while they are under review.
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The Health Insurance Act currently provides for disqualification of a practitioner from
Medicare for a period of up to three years as an outcome of a written agreement with
the Director of the PSR (the Director) under section 92 or as a direction imposed by
the Determining Authority under section 106U after a finding of inappropriate
practice by a PSR Committee (Committee). The amendments make it clear that these
directions are able to be applied to practitioners who are not currently registered, if
this is considered appropriate in the circumstances.
Further, sections 106XA and 106XB of the Health Insurance Act allow for a
practitioner to be referred to a regulatory body if their conduct has caused, is causing
or is likely to cause significant threat to the life or health of another person, or for not
complying with professional standards respectively. It would be contrary to public
safety considerations if a person were not able to be referred to another regulatory
body for investigation for potentially serious harm because they were not currently
registered. Similarly, section 106KC allows notification to the Chief Executive
Medicare or another appropriate authority or body if it is identified during the
Committee's investigation of a person under review that there are any matters that
may be of concern to the relevant profession.
Section 106KD of the Health Insurance Act relates to preparation of a draft report by
the Committee, section 106L relates to the final report prepared by the Committee,
and section 106ZPR relates to publication of particulars of final determinations and
written agreements. These provisions have also been amended for consistency and
completeness.
These amendments do not cover the entirety of Part VAA of the Health Insurance Act
as there are some provisions where it is appropriate to retain a distinction between
current and former practitioners, for example, appointment of statutory office holders.
Item 9
Item 9 sets out the application provisions for the items contained in Part 1 of the Bill
and deals with former practitioners.
Subitem 9(1) provides that the amendments to section 92 of the Health Insurance Act
apply in relation to an agreement entered into on or after commencement of Part 1 of
the Bill regardless of when the request under subsection 86(1) is made; the services
are provided; or the person ceases to be a practitioner.
Subitem 9(2) provides that the amendments to section 106KC of the Health Insurance
Act apply in relation to a matter that a Committee becomes aware of, on or after the
commencement of Part 1 of the Bill, regardless of when the referral under subsection
93(1) is made; the services are provided; the investigation by the Committee begins;
or the practitioner ceases to be a practitioner.
Subitem 9(3) provides that the amendments to section 106KD of the Health Insurance
Act apply in relation to a draft report given to a person under review on or after the
commencement of Part 1 of the Bill, regardless of when the referral under subsection
93(1) is made; the services are provided; or the person under review ceases to be a
practitioner.
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Subitem 9(4) provides that the amendments to section 106L of the Health Insurance
Act apply in relation to a final report given to a person under review if the relevant
draft report is given to the person on or after the commencement of Part 1 of the Bill,
regardless of when the referral under subsection 93(1) is made; the services are
provided; or the person under review ceases to be a practitioner.
Subitem 9(5) provides that the amendments to section 106U of the Health Insurance
Act apply in relation to draft determinations made on or after the commencement of
Part 1 of the Bill, and final determinations if the relevant draft determination is made
on or after commencement, regardless of when the referral under subsection 93(1) is
made; the referred services are provided; or the person under review ceases to be a
practitioner.
Subitem 9(6) provides that the amendments to sections 106XA and 106XB of the
Health Insurance Act apply in relation to the performance of a function or the exercise
of a power on or after commencement, regardless of the practitioner ceases to be a
practitioner; or the conduct mentioned in those sections is engaged in before, on or
after commencement.
Subitem 9(7) provides that the amendments to section 106ZPR of the Health
Insurance Act apply to an agreement or final determination that comes into effect on
or after commencement, regardless of when the person under review ceases to be a
practitioner.
Part 2--Inappropriate practice and Committee membership
Item 10
Item 10 adds new paragraph 82(1)(e) at the end of subsection 82(1) of the Health
Insurance Act to clarify the test for inappropriate practice where the practitioner
rendered or initiated services as more than one kind of practitioner.
Ordinarily, the test is whether the practitioner had engaged in conduct that would be
considered unacceptable to the general body of the relevant practitioner group. In the
case where a practitioner is rendering or initiating services as more than one kind of
practitioner, they would have engaged in inappropriate practice if a Committee could
reasonably conclude that they had engaged in conduct that was unacceptable to the
general body of each of those kinds of practitioners.
For example, if a person rendered services as both a cardiologist and a paediatrician,
they would have engaged in inappropriate practice if their conduct would be
considered unacceptable to both the general body of cardiologists and the general
body of paediatricians.
Item 11
Item 11 repeals subsections 95(3), (4) and (5) of the Health Insurance Act and
replaces them with new subsections 95(3) and (4).
The existing section 95 was intended to ensure that members of a Committee
undertaking a review would be peers of the person under review and have the
appropriate skills and experience to assess their provision of services. However, there
were difficulties in applying these provisions where the person under review had more
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than one specialty (especially if the combination was unusual) or was practising in a
different field to their formal specialist qualifications. This has led to incongruous
outcomes and is also inconsistent with the purpose of the definition of inappropriate
practice in section 82 of the Health Insurance Act, which requires consideration of
whether a practitioner's conduct in providing services as one kind of practitioner
would be considered unacceptable to the general body of that kind of practitioner.
To address these issues, new subsection 95(3) replaces the existing requirements
relating to the qualifications of the members of a Committee if the practitioner is a
consultant physician, specialist or general practitioner. The amendments will better
align requirements for constitution of a Committee with the purpose of the definition
of inappropriate practice in section 82.
Instead of establishing a Committee based on a practitioner's qualifications at the time
of review, a Committee is instead established based on the capacity in which the
practitioner provided services. If the person rendered or initiated services as a
consultant physician or specialist in a particular speciality, or a general practitioner,
the members of a Committee must also be that kind of practitioner. This will ensure
that the membership of a Committee has experience and knowledge relevant to the
services that are the subject of the review, even if the person under review is
practising outside of the specialty in which they have qualifications.
New subsection 95(4) provides that if a practitioner rendered or initiated services as
more than one kind of medical practitioner, then the members must each be at least
one of those medical practitioners; and the members must be, in combination, medical
practitioners of each of those kinds. Two examples have been included as notes under
this subsection to assist in clarifying its application.
New subsection 95(4) is intended to apply both where a practitioner is more than one
kind of specialist or consultant physician in a particular specialty, and where a
practitioner is more than one of specialist, consultant physician or general practitioner.
For example, if the practitioner is two kinds of consultant physician (cardiologist and
paediatrician), the Committee must have at least one cardiologist member and at least
one paediatrician member. If the practitioner is both a consultant physician
(cardiologist) and a general practitioner, the Committee must have at least one
cardiologist member and at least one general practitioner member. In each case, the
members could be one of each practitioner or both members could be dual-qualified.
Existing subsection 95(6) allows the Director to appoint additional Committee
members if wider clinical expertise is needed based on the range of services provided.
Item 12
Item 12 makes a consequential amendment to subsection 96(4) of the Health
Insurance Act to remove a reference to subsection 95(5) which is repealed by item 11.
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Item 13
Item 13 provides that the amendments to section 82 of the Health Insurance Act will
apply to a request to the Director under subsection 86(1) on or after the
commencement of Part 2 of the Bill; and to a referral to a Committee under subsection
93(1) on or after the commencement of Part 2 of the Bill.
Item 14
Item 14 provides that the amendments made by this Bill to section 95 of the Health
Insurance Act apply to a Committee set up under section 93 of the Health Insurance
Act on or after the commencement of Part 2 of the Bill.
Part 3--Medical examinations of persons under review
Items 15 and 17
Item 15 repeals paragraphs 104(5)(a) to (c) of the Health Insurance Act and replaces
them with new paragraphs 104(5)(a) and (b) and new subsection 104(5A). Item 17
repeals paragraphs 104A(4)(b) to (d) of the Health Insurance Act and replaces them
with new paragraphs 104A(4)(b) and (c) and new subsection 104A(5). These
provisions relate to a person not being able to attend a Committee hearing or answer
questions or give evidence during the hearing because they have a medical condition.
A person under review who is an individual is required to attend a Committee hearing
if given a notice under section 102 of the Health Insurance Act. If the person under
review is a body corporate, an executive officer is required to attend on behalf of the
body corporate. As the provisions are substantially similar, the individual person
under review and executive officer are both referred to as 'the person' below.
If the person does not attend or provide evidence as required during the hearing, the
person may be disqualified from Medicare (if a practitioner) or the Committee may
choose to proceed with the hearing in the person's absence. Subsection 104(5)
provides an exemption if the person under review gives a written notice to the
Committee before the hearing, while subsection 104A(4) provides the same
exemption if the body corporate only has one executive officer and that officer gives
the Committee notice. Subsections 104(5) and 104A(4) go on to set out the required
information that must be provided with the notice, and that the Committee must be
satisfied that the person has a medical condition that prevents them from appearing or
from giving evidence or answering questions.
Items 15 and 17 amend subsections 104(5) and 104A(4) to clarify the requirements
for what information must be provided to the Committee, including that the person
must provide a medical certificate, which was not previously an explicit requirement.
The medical certificate must certify that the person has a medical condition
preventing them from appearing or from giving evidence or answering questions and
specify the period of time for which they are prevented from doing so. The medical
certificate should provide sufficient information to allow the Committee to be
satisfied as to the general nature of incapacity that is stopping the person from
attending or answering questions. A generic medical certificate, for example, stating
that a person is unfit for work is unlikely to be acceptable.
The Committee may also require the person to give specified further information or to
undergo a medical examination, comply with any reasonable requirements relating to
9
the examination and provide a copy of the report by the person who conducts the
examination. The Committee may reasonably require the person to see a medical
assessor of the Committee's choosing, at a time and place identified by the
Committee.
If the person does not provide all the information required by paragraph 104(5)(a) or
does not comply with the Committee's requests for further information or request to
undergo a medical examination or comply with any reasonable requirements relating
to the examination, the Committee would be able to take this into account when
considering whether it is satisfied for the purposes of paragraph 104(5)(b).
Item 16
Item 16 makes a minor amendment to update wording in paragraph 104(6)(a) of the
Health Insurance Act for consistency, in accordance with modern drafting practice.
Items 18 and 19
Items 18 and 19 are consequential amendments arising from the amendments to
subsections 104(5) and 104A(4) of the Health Insurance Act in items 15 and 17
respectively.
Item 20
Item 20 provides that the amendments to sections 104 and 104A of the Health
Insurance Act apply in relation to a notice to attend a Committee hearing given on or
after the commencement of Part 3 of the Bill, whether the referral under
subsection 93(1) of the Health Insurance Act is made before, on or after that
commencement.
Part 4--Power of Director to extend reviews
Items 21 and 23
Items 21 and 23 make minor amendments to subsections 94(2) and (3) of the Health
Insurance Act to make it clear that the Director may determine to extend or further
extend the period of 12 months in subsection 94(1), which may have already been
extended by a determination made under one of the other provisions in section 94.
Item 22
Item 22 inserts a new subsection 94(2A) which provides the Director with the ability
to extend the 12-month review period if court proceedings are commenced in relation
to the review during that period and the review has not been suspended due to an
injunction or other court order. The Director is unlikely to continue the review while
there are elements of the review being tested in court so it is reasonable to extend the
time even in the absence of an injunction or other court order.
The period of extension is determined in writing by the Director and must be no
longer than the period for which the proceedings are on foot. It is intended that the
Director would be able to make the determination after the court proceedings have
been completed so the Director can be certain of the maximum allowable period of
extension.
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Item 24
Item 24 inserts a new subsection 94(3A) which gives the Director the ability to extend
the 12-month review period if the person under review leaves Australia. In most cases
when a person under review leaves the country, it is difficult and unreasonable to
continue the review as the person is unable to be contacted to provide information or
documents, nor can they be afforded procedural fairness in relation to providing
submissions about their matter. The Director's power to extend the review period will
ensure the review may continue once the person returns.
The period of extension is determined in writing by the Director and must be
reasonable in the circumstances. It is intended that the Director would be able to make
the determination after the Director becomes aware that the person has returned to
Australia so the Director can take the full period for which the person is outside
Australia into account in determining the period of extension.
The Director may specify a period of extension that is longer than the period for
which the person is outside Australia. In determining a reasonable extension, the
Director is to consider the default 12-month review period and justify why the
extension should exceed the time the person was outside Australia, for example, if
there has been a delay in the Director becoming aware of that person's return. It is not
intended that the Director should be able to arbitrarily extend the default review
period.
Item 25
Item 25 sets out when amendments to section 94 of the Health Insurance Act made by
Part 4 of the Bill are to apply.
Subitem 25(1) provides that the amendments apply in relation to the Director's
decision to review the provision of services by a person on or after the
commencement of Part 4 of the Bill.
Subitem 25(2) provides that the amendments also apply where the Director made a
decision to review the provision of services by a person before commencement and
the review period has not ended at commencement, or the person under review left
Australia during the review period and as at commencement has not returned.
Part 5--Miscellaneous amendments
Items 26 to 29
Items 26 to 29 address outdated references in Part IIA of the Health Insurance Act to
the 'Determining Officer', which was replaced by the Determining Authority by the
Health Insurance Amendment (Professional Services Review) Act 1999.
Item 26 inserts a new definition of 'Determining Authority' in subsection 23DA(1) of
the Health Insurance Act, while item 27 repeals a redundant definition of
'Determining Officer' in subsection 23DA(1).
Items 28 and 29 replace redundant references to the 'Determining Officer' in
paragraphs 23DC(6)(d) and 23DF(7)(c) of the Health Insurance Act with references to
the 'Determining Authority'.
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