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2019-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
HEALTH INSURANCE LEGISLATION AMENDMENT (TRANSPARENT PATIENT
OUTCOMES) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Griff)
HEALTH INSURANCE LEGISLATION AMENDMENT (TRANSPARENT
PATIENT OUTCOMES) BILL 2021
OUTLINE
This Bill enables the Minister for Health to establish public databases of surgical procedures
and patient outcomes, to allow consumers who are considering a particular procedure to make
an informed choice about their practitioner.
There is little information in the public domain that allows Australian patients to objectively
assess the skills and outcomes of individual practitioners, and the Bill seeks to address this
lack of transparency.
The Bill amends the Health Insurance Act 1973 to enable the Minister to make rules to
establish and maintain Transparent Patient Outcomes registers that contain data such as the
number and type of surgical procedures performed at a facility, and the number and type of
procedures performed by a practitioner, surgical revision rates and patient mortality rates for
each facility and practitioner, any prosthesis device used, patient demographics, or any other
information set out in the rules by the Minister.
The provisions of the Transparent Patient Outcomes Bill can be applied to any medical
speciality.
Many factors determine the success of a surgery, including a patient's age, health and
individual diagnosis. Surgeon skill and familiarity with a particular procedure is also a key
determinant which is why the Bill provides for this information in the content of rules at
subsection 124ZCB(2).
A Transparent Patient Outcomes register resulting from the provisions of this Bill will
identify individual practitioners, to allow consumers to view statistically relevant information
about their (intended) practitioner. To allow practitioner information to be deidentified or
included anonymously would undermine the intent and public utility of a Transparent Patient
Outcomes register.
The content of the Transparent Patient Outcomes register outlined at subsection 124ZCB(2)
is not intended to be prescriptive or exhaustive; the Minister may use any, or all, or more than
these in making rules. However, it is intended that the minimum information included in any
such rules will allow consumers to make useful comparisons and judgement about a
surgeon's experience and capabilities; to do otherwise would also defeat the intent and utility
of a Transparent Patient Outcomes register.
While the Bill provides that the rules may include the diagnosis (or multiple diagnoses) of
patients, it seeks to ensure that patient privacy is preserved; subsection 124ZCB(6) stipulates
that the rules must prohibit the publication of sensitive information, including identifying
health information about an individual. To assist the Minister, subsection 124ZCB(8) also
stipulates that the Minister must consult with the Information Commissioner and have regard
to the Commissioner's advice when drafting the rules, to ensure the rules do not breach
privacy laws.
To streamline the collection of surgical performance and outcomes data, the Bill addresses a
hurdle that would prevent the "re-use" of relevant data which is already collected for quality
assurance purposes and which, under the Health Insurance Act 1973, cannot currently be
repurposed for any other use.
Enabling re-use of quality assurance activity data avoids the administrative burden of
requiring the same data to be collected twice, often from hospitals.
Quality assurance activities are those designed to assess or evaluate the quality of a health
service or pharmaceutical product, or those designed to understand the incidence or causes of
conditions that may affect the quality or provision of health services.
A declaration of a quality assurance activity is made under section 124X of the Health
Insurance Act 1973 and each quality assurance activity may be authorised for up to five years
(and can be remade). There are only a few declared quality assurance activities in operation.
For instance, the Royal Australasian College of Surgeons operates the Australian and New
Zealand Audit of Surgical Mortality as a quality assurance activity. Similarly, the Australian
Orthopaedic Association has operated the National Joint Replacement Registry (AOANJRR)
as a quality assurance activity since 1999.
Quality assurance activities are protected activities. Part VC of the Health Insurance Act
1973 provides for quality assurance confidentiality and section 124Y of the Act prohibits the
disclosure, to another person or court, of identifying data or documents which have become
known solely as the result of a quality assurance activity. The penalty for such disclosure is
imprisonment for up to two years.
Under the existing Act, information or documents that become known through a quality
assurance activity may only be disclosed through individual consent. The Minister may also
authorise disclosure of information about a serious offence.
The primary purpose of this prohibition is to provide protection from civil liability to persons
who are engaging in good faith in activities that are subject to quality assurance and to
prevent information (that identifies a person) being used in court proceedings by surgeons,
patients or others.
The Transparent Patient Outcomes Bill preserves these protections from liability. It does not
alter the penalties imposed under section 124Y of the Health Insurance Act 1973 for
unauthorised disclosure, nor does it remove the obligation under the Act to not disclose
information brought into existence through a quality assurance activity, either to a court or to
another person - except in accordance with the Transparent Patient Outcomes rules.
Section 124ZCC of the Bill provides ongoing immunity from civil suit to any person acting
in good faith according to the Transparent Patient Outcomes rules. Further, section 124ZCD
maintains and strengthens the current protections against disclosure of quality assurance
information in court proceedings by ensuring that information collected for, or contained in, a
Transparent Patient Outcomes register cannot be used in legal proceedings.
Further to this, the Bill seeks to provide protection from liability for secondary disclosure of
quality assurance data which is collected for or contained on a Transparent Patient Outcomes
register. This ensures that quality assurance information collected under the Transparent
Patient Outcome rules, which may or may not be in the public domain, may be lawfully
disclosed in accordance with other laws (for instance, in response to a Freedom of
Information request or subpoena).
Currently, quality assurance data is also protected indefinitely, even if the activity for which
it was collected ceases to be a declared quality assurance activity. The provisions of this Bill
will operate prospectively, and so quality assurance activity information will remain
protected under laws in force at the time the data is collected.
The provisions of this Bill will only apply to declared quality assurance activity data that is
collected or becomes known from the date of commencement.
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the short title of this Bill, when enacted, will be the Health
Insurance Legislation Amendment (Transparent Patient Outcomes) Act 2021.
Clause 2 - Commencement
The whole of the Bill commences the day following Royal Assent.
Clause 3 - Schedules
Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1-- Amendments
Item 1 - Subsection 3(1)
This item inserts the definition of Transparent Patient Outcomes rules as described in new
section 124ZCB of the Bill.
Item 2 - After subsection 124Y(6)
This item inserts new subsection 124Y(6A) which ensures that a person is not prohibited
from disclosing information that becomes known as the result of a quality assurance activity
if it is in accordance with the Transparent Patient Outcomes rules, and thus is not subject to
the penalties outlined at subsection 124Y(1) of the Act.
Paragraph 124Y(6A)(b) operates to ensure that a person is not prohibited from disclosing
quality assurance data which is contained on, or collected for, a Transparent Patient
Outcomes register if that disclosure is otherwise permitted by law (such as Freedom of
Information laws).
Despite these new items, any information collected under the rules may not be used in civil or
criminal proceedings against a practitioner, as detailed in section 124ZCD.
Item 3 - Section 124ZC and Item 4 - At the end of section 124ZC
These items insert new subsections to section 124ZC of the Act, to make clear that
section 124Y of the Health Insurance Act 1973 overrides state and territory law in instances
where a state or territory law relating to a quality assurance activity is inconsistent with
section 124Y of the Act and the amendments to section 124Y made by the Bill.
This ensures that disclosure of quality assurance activity information in accordance with the
Transparent Patient Outcomes rules is permitted under amended section 124Y of the Health
Insurance Act 1973, even if state or territory laws prohibit disclosure of quality assurance
information.
Item 5 - After Part VC
This item inserts a new part to the Act, Part VCA, to provide for the creation of Transparent
Patient Outcomes registers and protection of registry information.
Section 124ZCB provides the Minister with the authority to make rules for the establishment
of a Transparent Patient Outcomes register.
The information which the rules may authorise to be collected and held on a public register is
illustrated at subsection 124ZCB(2). This includes: the number and type of surgical
procedures performed by individual practitioners and performed at each facility; patient
demographics including diagnoses; surgical revision rates and patient mortality rates for each
facility and practitioner, any prosthesis device used, or any other information set out in the
rules by the Minister.
The list given at 124ZCB(2) is not exhaustive and does not limit what content the rules may
prescribe.
Practitioner and facility information is intended to be identified, to allow consumers to view
data specific to each individual medical practitioner and hospital or other facility. Subsection
124ZCB(4) allows the Minister to provide for a mechanism to correct or update information
contained on the register.
To ensure individual patients may not be identified through any public register of patient
outcomes, subsection 124ZCB(6) makes explicit that the rules must prohibit publication of
identifying patient information, as outlined in the Privacy Act 1988. Further, subsection
124ZCB(8) requires the Minister to consult with the Information Commissioner in relation to
the collection and use of personal information for the purposes of a register and consider the
Commissioner's advice in making the Transparent Patient Outcomes rules.
Section 124ZCC provides immunity from civil proceedings to those who act in good faith in
accordance with the Transparent Patient Outcomes rules, unless the proceeding is in relation
to a breach of procedural fairness. This section is based on section 124ZB of the Health
Insurance Act 1973, which provides immunity from civil proceedings to members of
assessment or evaluation committees whose conduct adversely affects a health professional if
their conduct is in good faith and in connection with a declared quality assurance activity.
In addition, section 124ZCD of the Bill ensures that information collected for or used in
accordance with the Transparent Patient Outcomes rules cannot be used in legal proceedings
against a practitioner.
This is to ensure Transparent Patient Outcome registers are not used in unintended ways that
cannot be supported by health facilities and practitioners.
Item 6 - Application provision - information disclosure
This item makes clear that the provisions of the Bill are prospective, and that the disclosure
and penalty exemption inserted by subsection 124Y(6A) only applies to quality assurance
activity data collected, or that becomes known, through quality assurance activities conducted
on or after commencement.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021
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
This Bill enables the Minister for Health to create and maintain Transparent Patient
Outcomes registers for a range of medical specialities.
It will enable the Minister to make rules requiring a public register to report relevant
statistical information including the number and type of surgical procedures performed by a
practitioner, their surgical revision rate, patient mortality rate, any prosthetic device they may
use, their patient demographics or any other information the Minister deems relevant.
The resulting public databases of surgical procedures and patient outcomes would allow
consumers who are considering a particular procedure to make an informed choice about
their practitioner and hospital.
The aim of the Bill is to assist patients to exercise self-determination and make more
informed choice about their practitioner, and so assist them to better avoid unnecessary harm
to health through surgical inexperience and avoidable revisions.
Human rights implications
The Bill positively engages Article 12(1) of the International Covenant on Economic, Social
and Cultural Rights - the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.
In its General Comment 14, the United Nations Committee on Economic, Social and Cultural
Rights (the Committee) has stated that "every human being is entitled to the enjoyment of the
highest attainable standard of health conducive to living a life in dignity".
It notes that the right to health is not to be understood as a right to be healthy per se, but
rather the right to control one's health and body, the right to be free from interference
including non-consensual medical treatment and experimentation, the right to timely and
appropriate health care and the right to a system of health protection "which provides equality
of opportunity for people to enjoy the highest attainable level of health".
Further, the Committee notes "the highest attainable standard of health" takes into account
both the condition of the individual and the country's available resources and hence the right
should be understood as a right of access to a variety of public health facilities, goods,
services and programs, and that "a further important aspect is the participation of the
population in all health-related decision-making".
An element of this accessibility is information accessibility, which the Committee explains
"includes the right to seek, receive and impart information and ideas concerning health
issues".
Conclusion
This Bill aims to assist individuals to access information about a healthcare provider and
exercise informed choice before proceeding with surgery, and so is compatible with human
rights as it promotes the right to a high standard of health, the right to control one's health
and the right to information accessibility.
Senator Griff