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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH LEGISLATION AMENDMENT (MIDWIVES AND NURSE PRACTITIONERS) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing,
the Hon. Nicola Roxon MP)
HEALTH LEGISLATION AMENDMENT (MIDWIVES AND NURSE PRACTITIONERS) BILL 2009
OUTLINE
The Health Legislation Amendment (Midwives and Nurse Practitioners) Bill
2009 (the Bill) supports the Australian Government's 2009-10 Budget
measures by facilitating new arrangements to enhance and expand the role of
nurse practitioners and midwives which allow them to take a greater role in
providing quality health care. The Bill will support collaborative care
arrangements with other health professionals.
The purpose of the Bill is to amend the Health Insurance Act 1973 and the
National Health Act 1953 to enable nurse practitioners and appropriately
qualified and experienced midwives to request appropriate diagnostic
imaging and pathology services for which Medicare benefits may be paid. It
will also allow these health professionals to prescribe certain medicines
under the Pharmaceutical Benefits Scheme (PBS). The 2009-10 Budget measure
also provides for the creation of new Medicare items, and referrals under
the Medicare Benefits Schedule (MBS) from these health professionals to
specialists/consultant physicians.
The Bill will commence on Royal Assent, with Schedule 1 commencing on the
day after Royal Assent, and the new Medicare benefits and Pharmaceutical
benefits arrangements to be available from 1 November 2010. Schedule 2
commences at the same time the proposed Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2009 commences.
The amendments in the Bill relating to midwives will deliver key components
of the maternity reform package, which responds to the Maternity Services
Review. The Review canvassed a diverse range of views through an extensive
consultation process and heard from a wide range of stakeholders. Nearly
all of the women who participated in the Review expressed frustration at
the limited options available to them, and called for midwifery models of
care that provide continuity of care, over the spectrum of antenatal,
birthing and postnatal services. The professional groups participating in
the Review also acknowledged the need for change, with general consensus
about the importance of collaborative, multi-disciplinary maternity care.
Similarly, the potential role of nurse practitioners has been extensively
and successfully utilised in other countries for some time. Greater use of
nurse practitioners will help improve overall capacity and productivity and
increase the efficiency, effectiveness and responsiveness of the health
workforce. This Bill supports the Government's commitment to improve
primary health care in Australia and the Council of Australian Governments'
health workforce reform agenda.
The Health Insurance Act and the National Health Act will be amended to
provide access to the new arrangements. Under the Health Insurance Act, a
'participating nurse practitioner' or 'participating midwife' will be able
to request or provide certain Medicare services. Under the National Health
Act, an 'authorised nurse practitioner' or 'authorised midwife' will be
authorised to prescribe certain PBS medicines.
A core criterion for the new Medicare and Pharmaceutical Benefits Scheme
arrangements is that the nurse practitioner or midwife is an 'eligible
nurse practitioner' or 'eligible midwife'.
To meet the core requirement of being an 'eligible midwife', the Bill
requires registration as a midwife, and additional requirements specified
by legislative instrument must be satisfied. These additional requirements
are likely to be based on having appropriate advanced qualifications,
experience and/or competencies.
These further eligibility requirements for midwives, and for nurse
practitioners (if additional requirements to those provided for under State
law are considered appropriate in order to be an 'eligible nurse
practitioner'), will be determined in consultation with relevant
stakeholders.
Medicare
The Bill supports the inclusion of participating nurse practitioners and
participating midwives under the MBS.
In order for participating nurse practitioners and participating midwives
to provide a more comprehensive service to their patients, the Bill will
enable these groups to request diagnostic imaging and pathology services
appropriate to their scope of practice for which Medicare benefits may be
paid.
In addition to the changes made by the Bill, new MBS items for services
provided by participating nurse practitioners and participating midwives
working collaboratively with doctors will be created. For participating
midwives, this will include antenatal, birthing and postnatal care and
collaborative care arrangements between these midwives, and
obstetricians/GP obstetricians. Participating nurse practitioners will be
limited to providing services within their authorised scope of practice and
level of experience and competency. Both participating nurse practitioners
and participating midwives will be able to refer their patients, under the
MBS, to specialists/consultant physicians. The precise details of these
MBS items will be finalised in consultation with professions and specified
in secondary legislation.
The Bill also allows the Minister for Health and Ageing the option of
requiring an undertaking from eligible midwives and nurse practitioners
wishing to provide Medicare-rebateable services, similar to that required
of optometrists. The undertaking could outline specific clinical and other
obligations that participating midwives and nurse practitioners will have
in providing services under Medicare.
Pharmaceutical Benefits Scheme
This Bill will amend the National Health Act to add authorised nurse
practitioners and authorised midwives as new prescriber groups. Eligible
nurse practitioners and midwives will be able to apply to become authorised
to prescribe under the PBS. Some States or Territories may use the word
'authorise' in relation to the registration of nurse practitioners.
Authorisation for PBS prescribing purposes is in addition to authorisation
for registration purposes. Prescribing under the PBS will be limited to
certain PBS medicines and will only be permitted within the scope of
practice of an authorised midwife or nurse practitioner, and in accordance
with the State or Territory legislation under which they work. The details
of any additional criteria and conditions relating to PBS prescribing will
be specified by legislative instrument.
The Pharmaceutical Benefits Advisory Committee will be consulted about the
range of medicines that each group can prescribe and the circumstances
under which the medicines can be prescribed. Advice will also be sought
from relevant clinical experts and health professionals.
The amendments to the National Health Act with respect to prescribing by
authorised midwives and authorised nurse practitioners under the PBS also
apply for supply of pharmaceutical benefits under the Repatriation
Pharmaceutical Benefits Scheme (RPBS) via reference in the Veterans'
Entitlements Act 1986 and arrangements under section 91 of that Act to Part
VII of the National Health Act 1953.
Consequential amendments
The Bill also includes a number of consequential amendments to ensure that
regulatory provisions in the Health Insurance Act and National Health Act
apply appropriately to participating and authorised nurse practitioners and
midwives. For example, a number of offence provisions have been adjusted,
Part IIB - Prohibited practices in relation to pathology services and
diagnostic imaging services has been applied, and also the Professional
Services Review Scheme and Medicare Participation Review Committee
processes will be applied.
Schedule 2 of the Bill makes amendments to the Health Insurance Act,
National Health Act, Medicare Australia Act 1973 and Medical Indemnity Act
2002 which are consequential to, and commence at the same time as, the
proposed Midwife Professional Indemnity (Commonwealth Contribution) Scheme
Act 2009.
The amendments to the MBS and PBS under this Bill will be governed by the
Department of Health and Ageing, with aspects of implementation
administered by Medicare Australia.
Financial Impact Statement
The MBS and PBS components of the measures that this Bill will enable
through delegated legislation have a total cost of $111.3 million over four
years. The budgeted annual costs, which include administrative and
Department of Health and Ageing costs, and administrative costs for
Medicare Australia to introduce the necessary systems changes and manage
the program, are set out in the table below:
|2009-10 |2010-11 |2011-12 |2012-13 |Total |
|($ million) |($ million) |($ million) |($ million) |($ million) |
|14.8 |17.5 |32.3 |46.7 |111.3 |
HEALTH LEGISLATION AMENDMENT (MIDWIVES AND NURSE PRACTITIONERS) BILL 2009
NOTES ON CLAUSES
Section 1 Short title
This clause provides for the Bill, once enacted, to be cited as the Health
Legislation Amendment (Midwives and Nurse Practitioners) Act 2009.
Section 2 Commencement
This clause provides for sections 1 to 3 to commence on Royal Assent.
Schedule 1, which deals with amendments relating to pharmaceutical benefits
and Medicare benefits, is to commence on the day after Royal Assent.
Schedule 2, which makes consequential amendments as a result of the
proposed Midwife Professional Indemnity (Commonwealth Contribution) Scheme
Act 2009, is to commence at the same time as the proposed Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Act 2009.
Section 3 Schedule(s)
This clause 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 in a Schedule to this Bill has
effect according to its terms.
SCHEDULE 1-AMENDMENTS RELATING TO MEDICARE BENEFITS AND PHARMACEUTICAL
BENEFITS
HEATH INSURANCE ACT 1973
Item 1 Subsection 3(1)
This item inserts a definition of eligible midwife into subsection 3(1) of
the Health Insurance Act 1973 (the HIA). Eligible midwife has the meaning
given by section 21.
Item 2 Subsection 3(1)
This item inserts a definition of eligible nurse practitioner into
subsection 3(1) of the HIA. Eligible nurse practitioner means a person who
is a nurse practitioner, and meets the requirements (if any) specified in
the regulations for the purpose of the definition of eligible nurse
practitioner.
Item 3 Subsection 3(1) (definition of medical entrepreneur)
This item replaces the current definition of medical entrepreneur by giving
medical entrepreneur the meaning given by new section 3B.
Item 4 Subsection 3(1)
This item inserts a definition of midwife into subsection 3(1) of the HIA.
Midwife means a person who is registered as a midwife, or authorised
(however described) to practise midwifery, by or under a law of a State or
an internal Territory that provides for the registration of midwives, or
the authorisation of persons to practise midwifery.
Item 5 Subsection 3(1)
This item inserts a definition of nurse practitioner into subsection 3(1)
of the HIA. Nurse practitioner means a person who is registered as a nurse
practitioner, or authorised (however described) to practise as a nurse
practitioner, by or under a law of a State or an internal Territory that
provides for the registration of nurse practitioners, or the authorisation
of persons to practise as nurse practitioners.
Item 6 Subsection 3(1)
This item inserts a definition of participating midwife into subsection
3(1) of the HIA. If the Minister has approved a common form of undertaking
under proposed section 21A, participating midwife means an eligible midwife
for whom there is an undertaking in force given by him or her and accepted
by the Minister under new section 21B. If the Minister has not approved a
common form of undertaking, participating midwife means an eligible
midwife.
Item 7 Subsection 3(1)
This item inserts a definition of participating nurse practitioner into
subsection 3(1) of the HIA. If the Minister has approved a common form of
undertaking under new section 22, participating nurse practitioner means an
eligible nurse practitioner for whom there is an undertaking in force given
by him or her and accepted by the Minister under new section 22A. If the
Minister has not approved a common form of undertaking, participating nurse
practitioner means an eligible nurse practitioner.
Item 8 Subsection 3(5)
Subsection 3(5) provides that a professional service is taken to include
all professional attendances necessary for post-operative treatment (also
known as the aftercare rule). There is a provision for exclusion from this
rule for items in the general medical services table relating to a
professional attendance by a medical practitioner (however described), a
dental practitioner, or a participating optometrist. Item 8 amends
subsection 3(5) to include participating midwives and participating nurse
practitioners in this provision to be excluded from the aftercare rule.
Item 9 After section 3AA
This item inserts an amended definition of medical entrepreneur so that it
includes a person who employs, exercises control over, leases premises to,
or receives advantage from the services of a participating midwife or
participating nurse practitioner.
The changes to the term medical entrepreneur are to ensure that where this
term appears in the HIA, the Bill also works in relation to medical
entrepreneurs and participating midwives and participating nurse
practitioners. The term medical entrepreneur appears in subsection
16A(5AA) - Medicare benefits in relation to pathology services, which
prevents the payment of Medicare benefit for a pathology service where the
pathology specimen has not been collected in one of the specified
circumstances. The term medical entrepreneur also appears in section 129AA
- Private hospitals - bribery, an offence provision, which is amended by
items 58-61.
Item 10 After paragraph 16A(1)(a)
This item amends subsection 16A(1), by including participating midwives and
participating nurse practitioners in the categories of health professional
who can request a pathology service for which Medicare benefit may be
payable. The other categories of health professional are medical
practitioners and dental practitioners. Amongst other requirements under
the HIA which must be met in order for Medicare benefit to be payable, the
pathology service must be determined to be necessary for the patient of the
participating midwife or participating nurse practitioner (as applicable):
. personally (not on behalf) of the participating midwife or
participating nurse practitioner; and
. by the participating midwife or participating nurse practitioner
acting in his or her capacity as a participating midwife or
participating nurse practitioner.
In addition, the pathology service must be a service of a kind specified in
regulations as a service which may be requested by a participating midwife
or participating nurse practitioner.
Item 11 Application
This item provides that the amendment made by item 10 to subsection 16A(1)
applies in relation to a pathology service requested on or after 1 November
2010.
Item 12 Subsection 16A(2)
This item amends subsection 16A(2) to include reference to new subsection
16A(7A).
Item 13 Subsection 16A(7)
This item changes the term 'prescribed service' appearing in subsection
16A(7) to 'prescribed pathology service'. This is a technical change to
better align the phrasing with section 4BB of the HIA, which uses the term
'prescribed pathology service'.
Item 14 After subsection 16A(7)
This item inserts new subsection 16A(7A) to permit Medicare benefits to be
payable if a participating midwife or participating nurse practitioner
renders certain pathology services. Amongst other requirements under the
HIA which must be met in order for Medicare benefit to be payable, the
pathology service must be:
. personally performed by a participating midwife or participating nurse
practitioner on his or her own patient;
. a pathology service specified in a determination of 'prescribed
pathology services' made under section 4BB;
. specified in the determination made under section 4BB as a pathology
service which may be performed by a participating midwife or
participating nurse practitioner (as applicable); and
. rendered by the participating midwife or participating nurse
practitioner in accordance with any circumstances specified in the
determination made under section 4BB.
A determination made under section 4BB is a legislative instrument.
Item 15 Application
This item provides that subsection 16A(7A) of the HIA applies in relation
to a pathology service rendered on or after 1 November 2010.
Item 16 After subparagraph 16B(1)(b)(vi)
Subsection 16B(1) prevents the payment of Medicare benefit for an R-type
diagnostic imaging service unless the service is requested by certain
categories of health professional. This item amends subsection 16B(1) to
include participating midwives and participating nurse practitioners in the
categories of health professional whose request for an R-type diagnostic
imaging service is capable of leading to the payment of Medicare benefit
for the provision of that service. The other categories of health
professional are medical practitioners, dental practitioners,
chiropractors, physiotherapists, podiatrists, and osteopaths.
Amongst other requirements under the HIA which must be met in order for
Medicare benefits to be payable for an R-type diagnostic imaging service
requested by a participating midwife or participating nurse practitioner,
the request for the diagnostic imaging service must be:
. determined to be necessary by the participating midwife or
participating nurse practitioner (as applicable, and personally);
. for the patient of the participating midwife or participating nurse
practitioner (as applicable); and
. made in accordance with new subsection (3D) or (3E) (as applicable).
Item 17 After subsection 16B(3C)
This item inserts new subsections 16B(3D) and (3E) into section 16B.
New subsection (3D) provides that a request by a participating midwife for
an R-type diagnostic imaging service must:
. be made by the participating midwife acting in his or her capacity as
a participating midwife; and
. must be a request for a service of a kind specified in regulations
made for the purpose of new subsection 16B(3D) as one which can be
requested by a participating midwife.
New subsection (3E) provides that a request by a participating nurse
practitioner for an R-type diagnostic imaging service must:
. be made by the participating nurse practitioner acting in his or her
capacity as a participating nurse practitioner; and
. must be a request for a service of a kind specified in regulations
made for the purpose of new subsection 16B(3E) as one which can be
requested by a participating nurse practitioner.
Items 18 and 19
Items 18 and 19 amend subsection 16B(9), which deals with lost requests for
diagnostic imaging services and circumstances in which Medicare benefits
may still be payable, to include participating midwives and participating
nurse practitioners.
Item 20 Paragraph 16B(10A)(d)
This item changes the term 'practitioner' (second and third occurring) in
paragraph 16B(10A)(d) to 'person'. Subsection 16B(10A) deals with the
requirements which must be met in order for Medicare benefits to be payable
where a substituted diagnostic imaging service is rendered. A substituted
diagnostic imaging service would be provided where the rendering
practitioner considered a different service more appropriate to the
patient's diagnosis than the one requested.
This is a technical change to remove any possible doubt that the rendering
practitioner must consult with the health professional who made the request
for the diagnostic imaging service prior to providing the substituted
service.
Item 21 Application
This item provides that section 16B of the HIA, as in force after the
commencement of this item (i.e. the day after Royal Assent), applies in
relation to an R-type diagnostic imaging service requested on or after 1
November 2010.
Item 22 Paragraph 19DB(c)
This item adds reference to participating midwife and participating nurse
practitioner to paragraph 19DB(c). Section 19DB makes it an offence, where
the approval of a premises as an accredited pathology laboratory has been
revoked, to fail to communicate to relevant persons, before a pathology
service is rendered, that Medicare benefit will not be payable for the
pathology service. The offence has a penalty of $100.
Item 23 Paragraph 20BA(1)(a)
Item 23 amends paragraph 20BA(1)(a) by omitting the word 'practitioner' and
inserting the word 'person'. The amendment adjusts the subsection 20BA(1)
offence provision to reflect the fact that referrals to a specialist or
consultant physician, for which Medicare benefits may be paid at the higher
specialist rate, may be made by a person other than a 'practitioner'.
Practitioner is defined in subsection 3(1) of the HIA to mean a medical
practitioner or a dental practitioner.
Subsection 20BA(1) makes it an offence for a consultant physician or
specialist who renders a 'specialist medical service' to a patient as a
consequence of the receipt of a written referral, to fail, without
reasonable excuse, to produce the written referral, if asked to do so by
the Medicare Australia CEO, to a medical practitioner employed by Medicare
Australia. The requirement to retain the written referral is time limited
to 18 months from the day the 'specialist medical service' was rendered to
the patient. An offence under subsection 20BA(1) is an offence of strict
liability, and has a penalty of $500.
The requirements that must be met in order for Medicare benefit to be
payable at the higher specialist rate are dealt with in regulations made
for the purpose of section 133 of the HIA, relating to referral
requirements, and in the general medical service table.
Item 24 Application
This item provides that subsection 20BA(1) of the HIA, as in force after
the commencement of this item (i.e. the day after Royal Assent), applies in
relation to the referral of a patient on or after 1 November 2010.
Item 25 After section 20BA
This item inserts new sections 21, 21A, 21B, 21C, 22, 22A and 22B into the
HIA.
Section 21 Meaning of eligible midwife
This item inserts a definition of eligible midwife into the HIA. Eligible
midwife means a person who is a midwife, and meets the requirements
specified in the regulations for the purpose of the definition of eligible
midwife.
Subsection 21(2) provides that if there are no regulations in force for the
purpose of the definition of eligible midwife, a person cannot be an
eligible midwife for the purpose of the HIA. This is to ensure that it
will not be sufficient to be a midwife to satisfy the definition of
eligible midwife.
Subsection 21(3) provides that, without limiting the requirements that may
be specified in the regulations made for the purpose of the definition of
eligible midwife, the requirements that may be specified in the regulations
may include one or more of the following:
. to hold particular qualifications in midwifery;
. to have particular experience in midwifery;
. to be credentialled by a particular body.
Section 21A Common form of undertaking by eligible midwife
The new definition of participating midwife in subsection 3(1) means an
eligible midwife. However, if the Minister has approved a common form of
undertaking under new section 21A, participating midwife means an eligible
midwife for whom there is an undertaking in force given by him or her and
accepted by the Minister under new section 21B.
New section 21A, together with new sections 21B and 21C, deals with the
common form of undertaking, including the circumstances in which an
undertaking may be refused by the Minister, how an undertaking ceases to be
in force, and review of decisions. The undertaking mechanism is similar to
the common form of undertaking made by participating optometrists and dealt
with in sections 23A to 23DAA of the HIA.
Subsection 21A(1) provides that the Minister may approve a common form of
undertaking to be given by an eligible midwife who wishes to become a
participating midwife under the HIA. Subsection 21A(4) provides that a
common form of undertaking is a legislative instrument.
Subsection 21A(2) provides that the common form of undertaking is to make
provision for any matters that the Minister thinks appropriate. Subsection
21A(3) provides, without limiting the generality of subsection 21A(2), that
the common form of undertaking may provide for any of the following:
. the kinds of service to which the undertaking relates;
. a specification of the premises at which the eligible midwife provides
services of a kind to which the undertaking relates;
. matters relating to fees for services provided by participating
midwives, specifically:
- an assurance by the eligible midwife that the fee to be charged
by him or her for a service that is covered by a Medicare item
expressed to relate to a service provided by a participating
midwife (a participating midwife Medicare item) will not, except
in the circumstances specified in the undertaking, exceed the
appropriate fee stated in the item (i.e. an agreement by
participating midwife to bulk bill for some or all participating
midwife Medicare items); and
- where the above applies, increases of specified amounts in the
maximum fee that may be charged, in circumstances specified in
the undertaking, by the participating midwife for a service that
is covered by a participating midwife Medicare item.
Subsection 21A(5) provides that the Minister may, by legislative
instrument, vary a common form of undertaking approved under subsection
21A(1). The Legislative Instruments Act 2003 provides for consultation and
registration (notification) requirements regarding legislative instruments.
Section 21B Undertaking by eligible midwife
Minister must accept or refuse undertaking
Subsection 21B(1) provides that if an eligible midwife gives the Minister,
in writing, an undertaking in accordance with the common form of
undertaking, the Minister must accept the undertaking, unless subsection
21B(2) applies.
Subsection 21B(2) provides that if the Minister is satisfied that:
. if the undertaking were to be accepted, the eligible midwife would be
likely to carry on the whole or part of the practice or business of a
'relevant midwife'; and
. the acceptance of the undertaking would be likely to have the effect
of allowing the eligible midwife to avoid, in whole or part, the
financial consequences of the making of a determination under
paragraph 124F(2)(d) or (e) in relation to the person;
the Minister must refuse to accept the undertaking unless he or she is
satisfied that it is not in the public interest to do so.
A Medicare Participation Review Committee (MPRC) is established following
notification under that a person has been convicted of a relevant offence
(defined in section 124B), or a pecuniary penalty order (made under section
125A) has been made against the person. A MPRC may, in accordance with
Part VB of the HIA, make a determination under paragraph 124F(2)(d) or (e)
either partially or fully disqualifying a person from participation in the
Medicare Benefits Scheme. Disqualification by the MPRC may last up to a
maximum of five years (subsection 124F(5) of the HIA). Medicare benefit is
not payable for a service rendered or initiated by a disqualified person.
A person cannot be a participating midwife if they are not, or are no
longer, an eligible midwife.
New section 21C deals with review of a decision under new section 21B to
refuse to accept an undertaking, and when a decision to refuse to accept an
undertaking takes effect.
Meaning of relevant midwife
Subsection 21B(3) defines relevant midwife for the purposes of subsection
21B(2) as an eligible midwife in relation to whom either:
. a determination under paragraph 124F(2)(d) or (e) is in effect; or
. the Minister has reasonable grounds to believe may have committed a
relevant offence (within the meaning of section 124B) in relation to
which a determination had not been made under subsection 124F(2).
Minister to give notice of decision
Subsection 21B(4) provides that the Minister must give the eligible midwife
notice of his or her decision to accept or refuse the undertaking.
When undertaking comes into force
Subsection 21B(5) provides that the undertaking comes into force when
accepted by the Minister.
Date of acceptance where decision reviewed, etc.
Subsection 21B(6) provides that if a decision by the Minister to refuse to
accept the undertaking does not take effect because it was set aside on
review or in accordance with a judgment or order on appeal, the Minister is
taken to have accepted the undertaking on the date on which it was
originally received by the Minister, or, on an earlier date (not being a
date earlier that the date on which it was signed) fixed by the Minister.
Termination of undertaking by participating midwife
Subsection 21B(7) provides that a participating midwife may, at any time,
terminate an undertaking by giving the Minister a notice in the approved
form. Approved form is defined in subsection 3(1) of the HIA.
Subsection 21B(8) provides that the notice must specify a date of
termination that is not earlier than 30 days after the day on which it is
given to the Minister.
When undertaking ceases to be in force
Subsection 21B(9) provides that the undertaking ceases to be in force on
the date of termination specified in the notice given under subsection
21B(8). The undertaking also ceases to be in force if either of the
following take effect:
. an agreement under subsection 92(1) that specifies that the
Minister's acceptance of the undertaking is taken to be revoked;
. a final determination under section 106TA contains a direction under
new paragraph 106U(1)(ea) that the Minister's acceptance of the
undertaking is taken to be revoked.
Equivalent amendments to subsection 92(2) and subsection 106U(1) are made
by items 45 and 47 respectively.
Effect of varying common form of undertaking
Subsection 21B(10) provides that if the common form of undertaking is
varied under subsection 21A(5), an undertaking given under subsection 21B
is taken to have been varied to accord with the common form of undertaking
as so varied.
Section 21C Review and effect of refusal by Minister to accept undertaking
by eligible midwife
Subsection 21C(1) provides that section 21C applies if the Minister decides
under subsection 21B(2) to refuse to accept an undertaking given by an
eligible midwife.
Subsection 21C(2) provides that an application may be made to the
Administrative Appeals Tribunal for review of the decision.
Subsection 21C(3) provides that the decision takes effect at the end of the
28 day period beginning on the day on which the Minister gave notice under
new subsection 21B(4) of the decision.
Subsection 21C(4) provides that subsection 21C(3) operates subject to any
order by the Administrative Appeals Tribunal or by a court in relation to
the decision.
Section 22 Common form of undertaking by eligible nurse practitioner
The new definition of participating nurse practitioner' in subsection 3(1)
means an eligible nurse practitioner. However, if the Minister has
approved a common form of undertaking under new section 22, participating
nurse practitioner means an eligible nurse practitioner for whom there is
an undertaking in force given by him or her and accepted by the Minister
under new section 22A.
New section 22, together with new sections 22A and 22B, deals with the
common form of undertaking, including the circumstances in which an
undertaking may be refused by the Minister, how an undertaking ceases to be
in force, and review of decisions. The undertaking mechanism is the same
as that for participating midwives, and similar to the common form of
undertaking made by participating optometrists and dealt with in sections
23A to 23DAA of the HIA.
Subsection 22(1) provides that the Minister may approve a common form of
undertaking to be given by an eligible nurse practitioner who wishes to
become a participating nurse practitioner under this Act. Subsection 22(4)
provides that a common form of undertaking is a legislative instrument.
Subsection 22(2) provides that the common form of undertaking is to make
provision for any matters that the Minister thinks appropriate. Subsection
22(3) provides, without limiting the generality of subsection 22(2), that
the common form of undertaking may provide for any of the following:
. the kinds of service to which the undertaking relates;
. a specification of the premises at which the eligible nurse
practitioner provides services of a kind to which the undertaking
relates;
. matters relating to fees for services provided by participating nurse
practitioners, specifically:
- an assurance by the eligible nurse practitioner that the fee to
be charged by him or her for a service that is covered by a
Medicare item expressed to relate to a service provided by a
participating nurse practitioner (a participating nurse
practitioner Medicare item) will not, except in the
circumstances specified in the undertaking, exceed the
appropriate fee stated in the item (i.e. an agreement by
participating nurse practitioner to bulk bill for some or all
participating nurse practitioner Medicare items); and
- where the above applies, increases of specified amounts in the
maximum fee that may be charged, in circumstances specified in
the undertaking, by the participating nurse practitioner for a
service that is covered by a participating nurse practitioner
Medicare item.
Subsection 22(5) provides that the Minister may, by legislative instrument,
vary a common form of undertaking approved under subsection 22(1). The
Legislative Instruments Act 2003 provides for consultation and registration
(notification) requirements regarding legislative instruments.
Section 22A Undertaking by eligible nurse practitioner
New section 22A is substantially the same as new section 21B which relates
to an undertaking by an eligible midwife.
Minister may accept or refuse undertaking
Subsection 22A(1) provides that if an eligible nurse practitioner gives the
Minister, in writing, an undertaking in accordance with the common form of
undertaking, the Minister must accept the undertaking, unless subsection
22A(2) applies.
Subsection 22A(2) provides that if the Minister is satisfied that:
. if the undertaking were to be accepted, the eligible nurse
practitioner would be likely to carry on the whole or part of the
practice or business of a 'relevant nurse practitioner'; and
. the acceptance of the undertaking would be likely to have the effect
of allowing the eligible nurse practitioner to avoid, in whole or
part, the financial consequences of the making of a determination
under paragraph 124F(2)(d) or (e) in relation to the person;
the Minister must refuse to accept the undertaking unless he or she is
satisfied that it is not in the public interest to do so.
A MPRC is established following notification under that a person has been
convicted of a relevant offence (defined in section 124B), or a pecuniary
penalty order (made under section 125A) has been made against the person.
A MPRC may, in accordance with Part VB of the HIA, make a determination
under paragraph 124F(2)(d) or (e) either partially or fully disqualifying a
person from participation in the Medicare Benefits Scheme.
Disqualification by the MPRC may last up to a maximum of five years
(subsection 124F(5) of the HIA). Medicare benefit is not payable for a
service rendered or initiated by a disqualified person.
A person cannot be a participating nurse practitioner if they are not, or
are no longer, an eligible nurse practitioner.
New section 22B deals with review of a decision under new section 22A to
refuse to accept an undertaking, and when a decision to refuse to accept an
undertaking takes effect.
Meaning of relevant nurse practitioner
Subsection 22A(3) defines relevant nurse practitioner for the purpose of
subsection 22A(2) as an eligible nurse practitioner in relation to whom
either:
. a determination under paragraph 124F(2)(d) or (e) is in effect; or
. the Minister has reasonable grounds to believe may have committed a
relevant offence (within the meaning of section 124B) in relation to
which a determination had not been made under subsection 124F(2).
Minister to give notice of decision
Subsection 22A(4) provides that the Minister must give the eligible nurse
practitioner notice of his or her decision to accept or refuse the
undertaking.
When undertaking comes into force
Subsection 22A(5) provides that the undertaking comes into force when
accepted by the Minister.
Date of acceptance where decision reviewed, etc
Subsection 22A(6) provides that if a decision by the Minister to refuse to
accept the undertaking does not take effect because it was set aside on
review or in accordance with a judgment or order on appeal, the Minister is
taken to have accepted the undertaking on the date on which it was
originally received by the Minister, or, on an earlier date (not being a
date earlier that the date on which it was signed) fixed by the Minister.
Termination of undertaking by participating nurse practitioner
Subsection 22A(7) provides that a participating nurse practitioner may, at
any time, terminate an undertaking by giving the Minister a notice in the
approved form. Approved form is defined in subsection 3(1) of the HIA.
Subsection 22A(8) provides that the notice must specify a date of
termination that is not earlier than 30 days after the day on which it is
given to the Minister.
When undertaking ceases to be in force
Subsection 22A(9) provides that the undertaking ceases to be in force on
the date of termination specified in the notice given under subsection
22A(8). The undertaking also ceases to be in force if either of the
following take effect:
. an agreement under subsection 92(1) that specifies that the Minister's
acceptance of the undertaking is taken to be revoked;
. a final determination under section 106TA contains a direction under
new paragraph 106U(1)(ea) that the Minister's acceptance of the
undertaking is taken to be revoked.
Equivalent amendments to subsection 92(2) and subsection 106U(1) are made
by items 45 and 47 respectively.
Effect of varying common form of undertaking
Subsection 22A(10) provides that if the common form of undertaking is
varied under subsection 22(5), an undertaking given under section 22A is
taken to have been varied to accord with the common form of undertaking as
so varied.
Section 22B Review and effect of refusal by Minister to accept undertaking
by eligible nurse practitioner
Subsection 22B(1) provides that section 22B applies if the Minister decides
under subsection 22A(2) to refuse to accept an undertaking given by an
eligible nurse practitioner.
Subsection 22B(2) provides that an application may be made to the
Administrative Appeals Tribunal for review of the decision.
Subsection 22B(3) provides that the decision takes effect at the end of the
28 day period beginning on the day on which the Minister gave notice under
subsection 22A(4) of the decision.
Subsection 22B(4) provides that subsection 22B(3) operates subject to any
order by the Administrative Appeals Tribunal or by a court in relation to
the decision.
Note 1 provides that the heading to section 23A is altered by adding the
words "by optometrist" at the end.
Note 2 provides that the heading to section 23D is replaced by the heading
"Date of effect of refusal by Minister to accept undertaking by
optometrist".
Note 3 provides that the heading to section 23DAA is altered by omitting
"of undertaking" and substituting "by Minister to accept undertaking by
optometrist".
Item 26 Paragraph 23DK(2)(a)
This item inserts into paragraph 23DK(2)(a), after 'practitioner' (second
occurring), reference to a participating midwife and a participating nurse
practitioner. Section 23DK deals with requirements an approved pathology
practitioner who receives requests for pathology services must meet in
order for Medicare benefit to be payable. The purpose of this amendment is
remove any doubt that the reference to treating practitioner in paragraph
23DK(2)(a) includes a treating practitioner who is a participating midwife
or participating nurse practitioner.
Items 27 and 28
Item 27 inserts into paragraph 23DK(5)(a), after 'practitioner' (first
occurring), reference to participating midwife and participating nurse
practitioner, and item 28 inserts after 'the practitioner' appearing in
subsection 23DK(5) reference to participating midwife and participating
nurse practitioner. The purpose of these amendments are to ensure that
where a participating midwife or participating nurse practitioner has made
the request for pathology services, otherwise than in writing, he or she is
obliged to confirm the request in writing within 14 days.
Item 29 Subsection 23DP(2)
This item inserts into subsection 23DP(2), after 'practitioner', reference
to participating midwife and participating nurse practitioner.
Section 23DP(2) is an offence provision which provides that a practitioner
who contravenes subsection 23DK(5) is guilty of an offence. The fine must
not exceed 10 penalty units (i.e. $1,100). Subsection 23DP(3B) provides
that the offence is an offence of strict liability. The purpose of the
amendment to subsection 23DP(2) is to ensure that it applies where a
participating midwife or participating nurse practitioner made the request
for pathology services.
Item 30 Subsection 23DP(3)
Item 30 amends subsection 23DP(3) by inserting, after 'practitioner'
(second occurring), reference to a participating midwife and a
participating nurse practitioner.
Subsection 23DP(3) is an offence provision, which provides that an approved
pathology practitioner or an approved pathology authority shall not provide
(whether directly or indirectly) a pathology request form that is not in
accordance with regulations made for the purpose of subsection 23DP(3).
The penalty for this offence is 10 penalty units (i.e. $1,100). Subsection
23DP(3B) provides that the offence is an offence of strict liability.
The purpose of the amendment to subsection 23DP(3) is to ensure that it
applies not only to pathology request forms provided to practitioners, but
also pathology request forms provided to participating midwives and
participating nurse practitioners.
Item 31 Subsection 23DP(3A)
Item 31 amends subsection 23DP(3A) by inserting, after 'practitioner',
reference to a participating midwife and a participating nurse
practitioner. The purpose of this amendment is to ensure that subsection
23DP(3A), which provides for a defence of reasonable excuse for section
23DP offences, is also available for participating midwives and
participating nurse practitioners.
Item 32 Paragraph 23DP(4)(a)
Item 32 amends paragraph 23DP(4)(a) by removing 'practitioner' and
inserting 'practitioner; and'. This is a technical amendment associated
with the amendment to subsection 23DP(4) made by item 33.
Item 33 At the end of subsection 23DP(4)
Item 33 amends subsection 23DP(4) to add new paragraphs (d) and (e) which
remove any doubt, similar to other paragraphs in subsection 23DP(4)
relating, for example, to 'practitioner', that a reference to a
participating midwife and participating nurse practitioner in subsection
23DP will still apply if the person 'has been' a participating midwife or
participating nurse practitioner.
Item 34 Subsection 23DP(5)
Item 34 amends subsection 23DP(5) by inserting, after 'practitioner',
reference to a participating midwife and a participating nurse
practitioner. The purpose of this amendment is to ensure that the
definition of 'pathology request form', used in the offence provision
contained in subsection 23DP(3), includes a document for use by a
participating midwife or a participating nurse practitioner when requesting
pathology services.
Item 35 Subsection 23DQ(4) (at the end of the definition of practitioner)
Item 35 amends subsection 23DQ(4) by adding new paragraphs (g) and (h),
referring to a participating midwife and a participating nurse
practitioner, to the meaning of practitioner as used in the subsection.
The purpose of this amendment is to ensure that the offence provisions
contained in subsection 23DQ(2) and (3) apply appropriately to
participating midwives and participating nurse practitioners.
Subsection 23DQ(2) is an offence provision prohibiting a practitioner
(within the extended meaning given by subsection 23DQ(4)), from making a
subsection 16B(1) request for diagnostic imaging services, or permitting
such a request to be made on his or her behalf, if the request contravenes
regulations made for the purpose of subsection 23DQ(2).
Subsection 23DQ(3) is an offence provision prohibiting a medical
practitioner who renders R-type diagnostic imaging services in the course
of conducting his or her practice from providing a document (whether
directly or indirectly) to a practitioner for use by practitioners (within
the extended meaning given by subsection 23DQ(4)) in making a subsection
16B(1) request, if in using the document the practitioner would contravene
regulations made for the purpose of subsection 23DQ(2).
The penalty for a subsection 23DQ(2) offence or a subsection 23DQ(3)
offence is $1000. The offences are strict liability offences (subsection
23DQ(3B)). The offences do not apply if the practitioner (within the
expanded meaning given by subsection 23DQ(4)) has a reasonable excuse
(subsection 23DQ(2A)).
Items 36 to 41
Items 36 to 41 amend subsections 23DZZIE(1) and (2). The purpose of these
amendments is to apply Part IIBA - Prohibited practices in relation to
pathology services and diagnostic imaging services, to participating
midwives and participating nurse practitioners, along with the other
categories of health professional who are able to request a pathology
service or request an R-type diagnostic imaging service for which Medicare
benefit may be payable.
The objects of Part IIBA are stated in section 23DZZIA. One of the objects
of Part IIBA is to prevent requesters of pathology services and diagnostic
imaging services from (either directly or indirectly) asking for or
accepting, or being offered or provided, any benefits (other than permitted
benefits) in order to induce the requesters to request the services from
providers of those services.
The other object of Part IIBA is to protect requesters of pathology
services and diagnostic imaging services from (either directly or
indirectly) being threatened in order to induce the requesters to request
the services from providers of those services.
Item 42 Subsection 81(1) (after paragraph (d) of the definition of
practitioner)
Item 42 expands the definition of practitioner in subsection 81(1), which
is used for the purpose of Part VAA - Professional Services Review Scheme,
by including new paragraphs (da) and (db) referring to a midwife and a
nurse practitioner, respectively.
The purpose of this amendment is to apply the Professional Services Review
Scheme to participating midwives and participating nurse practitioners.
The object of the Professional Services Review Scheme, as set out in
section 79A of the HIA, is to protect the integrity of the Commonwealth
Medicare benefits and pharmaceutical benefits programs.
Item 43 Subsection 81(1) (after paragraph (c) of the definition of
profession)
Item 43 expands the definition of profession used for the purpose of Part
VAA - Professional Services Review Scheme, by including a new paragraph
(ca) referring to midwifery, and a new paragraph (cb) referring to the
practice of a nurse practitioner.
Item 44 Subsection 81(1) (paragraph (b) of the definition of service)
Item 44 expands the definition of service used for the purpose of Part VAA
- Professional Services Review Scheme, by including in paragraph (b) of
that definition, which relates to the prescribing or dispensing of a
pharmaceutical benefit, reference to a midwife or a nurse practitioner.
Item 45 After paragraph 92(2)(d)
Subsection 92(2) deals with a written agreement which may be entered into
between the Director of Professional Services Review and a person under
review. A section 92 agreement specifies action that may be taken against
the person under review.
Item 45 includes new paragraphs (da) and (db) which relate to action, if
the person is a midwife or nurse practitioner (as applicable), in the
nature of the Minister's acceptance of the undertaking made under new
section 21B or 22A (as applicable) being taken to be revoked.
Item 46 Subsection 92(7) (after paragraph (ba) of the definition of Part
VII authority)
Item 46 expands the definition of Part VII authority appearing in
subsection 92(7), to include new paragraph (bb) referring to the approval
of an eligible midwife as an authorised midwife under section 84AAF of the
National Health Act 1953, and a new paragraph (bc) referring to the
approval of an eligible nurse practitioner as an authorised nurse
practitioner under section 84AAJ of the National Health Act 1953.
The purpose of this amendment is to expand the reference to 'Part VII
authority' appearing in paragraph 92(2)(e). Paragraph 92(2)(e) relates to
action specified in a section 92 agreement in the nature of suspension of
the Part VII authority for a maximum of three years.
Item 47 After paragraph 106U(1)(e)
Section 106U deals with the content of a determination of the Professional
Services Review Determining Authority. This item amends subsection 106U(1)
to add a new paragraph (ea) enabling the Determining Authority to direct,
if the person under review is a midwife, that the Minister's acceptance of
the undertaking made under new section 21B is taken to be revoked. Item 47
also adds a new paragraph (eb) enabling the Determining Authority to
direct, if the person under review is a nurse practitioner, that the
Minister's acceptance of the undertaking made under new section 22A is
taken to be revoked.
Item 48 Subsection 106U(5) (after paragraph (ba) of the definition of Part
VII authority)
Item 48 expands the definition of Part VII authority appearing in
subsection 106U(5) to include new paragraph (bb) referring to the approval
of an eligible midwife as an authorised midwife under section 84AAF of the
National Health Act 1953, and new paragraph (bc) referring to the approval
of an eligible nurse practitioner as an authorised nurse practitioner under
section 84AAJ of the National Health Act 1953.
Items 49 and 50
Items 49 and 50 contain amendments to subsection 106ZPA(1), which deals
with the constitution of the Professional Services Review Determining
Authority.
Item 50 adds new paragraphs (iva) and (ivb) to paragraph 106ZPA(1)(c),
adding a midwife and a nurse practitioner to the constitution of the
Determining Authority. Item 49 changes '8' to '10' in paragraph
106ZPA(1)(c) to reflect the two additional members.
Item 51 Subsection 124B(1) (after paragraph (d) of the definition of
practitioner)
Item 51 expands the definition of practitioner in subsection 124B(1), which
is used for the purpose of Part VB - Medicare Participation Review
Committee (MPRC), by including new paragraphs (da) and (db) referring to
midwife and nurse practitioner, respectively.
The MPRC process determines what administrative action should be taken
against a practitioner who has, for example, been successfully prosecuted
for a relevant criminal offence or has been found to have engaged in
inappropriate practice under the Professional Services Review Scheme.
Item 52 After paragraph 124EB(2)(b)
Item 52 amends subsection 124EB(2) by adding new paragraphs (ba) and (bb)
to ensure:
. if the Medicare Participation Review Committee is convened in relation
to a midwife, nomination of a midwife member of the MPRC; and
. if the MPRC is convened in relation to a nurse practitioner,
nomination of a nurse practitioner member of the MPRC.
Item 53 Subsection 124FAA(2)
Item 53 amends subsection 124FAA(2) by omitting 'medical practitioner' and
substituting 'practitioner'.
Items 54 to 57
Items 54 to 57 amend section 128C. Section 128C is an offence provision
which prohibits, in circumstances set out in the regulations, a medical
practitioner, or a person acting on behalf of a medical practitioner, from:
. charging of a fee for the provision of a 'public hospital service'; or
. receiving of any payment or other consideration from anyone in respect
of the provision of the 'public hospital service';
if the practitioner, or a person acting on their behalf, knows that the
person to whom the service is, or will be, provided, is, or intends to be,
a 'public patient' in the hospital. The penalty for this offence is 50
penalty units (i.e. $5,500).
Public hospital service and public patient are defined in subsection 3(1)
of the HIA. This offence must have circumstances set out in the regulations
in order to be activated. Regulation 25A of the Health Insurance
Regulations 1975 prescribes certain circumstances relating to the provision
of an obstetric service, which are limited in application to medical
practitioners, or persons acting on behalf of medical practitioners.
Items 54 to 57 amend section 128C so that it also applies to a
participating midwife (and a person acting on behalf of a participating
midwife) and a participating nurse practitioner (and a person acting on
behalf of a participating nurse practitioner), provided circumstances are
set out in regulations.
The purpose of this amendment is to allow section 128C to have the capacity
to apply, in relation to public hospital services and public patients, to
behaviour by participating midwives and participating nurse practitioners,
noting that the only regulations in force relate to obstetric services.
Items 58 to 61
Items 58 to 61 relate to section 129AA which deals with private hospitals
and bribery. The purpose of the amendments to section 129AA is to extend
the meaning of the word practitioner to include participating midwives and
participating nurse practitioners.
Subsection 129AA(1A) is an offence provision which makes it an offence for
a practitioner or medical entrepreneur (or a person acting on behalf of a
practitioner or medical entrepreneur) to take or seek a bribe from a
proprietor of a private hospital (or a person acting on their behalf) to
admit a patient to a private hospital, being a patient in respect of whom a
benefit is payable by a private health insurer.
Subsection 129AA(1B) is an offence provision which makes it an offence for
a person, being a proprietor or one of the proprietors of a private
hospital, or a person acting on behalf of such a proprietor, to bribe or
seek to bribe a practitioner to admit a patient to a private hospital,
being a patient in respect of whom a benefit is payable by a private health
insurer. Proprietor is defined in subsection 129AA(6).
Section 129AA does not apply if the practitioner or medical entrepreneur
(in the case of subsection 129AA(1A)), or the proprietor or one of the
proprietors of the private hospital (in the case of subsection 129AA(2A))
had reasonable excuse. In addition, it is a defence to prosecution under
section 129AA that the conduct in question was in accordance with the
standards of professional conduct generally accepted by medical
practitioners (subsection 129AA(5)). Item 61 extends subsection 129AA(5)
to the standards of professional conduct generally accepted by midwives or
nurse practitioners (as the case requires).
A person convicted of an offence in section 129AA is punishable by
imprisonment for a period not exceeding five years (subsection 129AA(4)).
Where an offence against section 129AA is committed by a corporation, an
officer (defined in subsection 129AA(6)) of the corporation who is in
default is guilty of an offence against section 129AA (subsection
129AA(2)). A reference to an officer in default, in relation to an offence
committed by a corporation, includes a reference to an officer who wilfully
authorises or permits the commission of the offence (subsection 129AA(3)).
Item 62 Subsection 129AAC(1)
Item 62 amends subsection 129AAC(1) by including reference to a midwife or
nurse practitioner who is an employee of Medicare Australia.
Section 129AAC protects practitioners (within the extended meaning given by
section 124B) by providing that statements made by a practitioner, in the
course of being counselled for the purposes of the HIA, to a person who is
both an employee of Medicare Australia and one of the listed categories of
health professional, is inadmissible in evidence against the practitioner
in proceedings, except in certain limited circumstances.
Items 63 to 66
Items 63 to 66 amend section 130 by expanding the statutory authorisations
for release of information contained in subsection 130(6) and (7), and by
making an associated change to paragraph 130(9)(c). Subsection 130(1) is a
secrecy provision which makes it an offence to release certain information,
except in certain circumstances. The penalty for this offence is $500.
Subsections 130(6) and (7) permit release of information, in relation to
listed categories of health professional, in certain circumstances, to
State or Territory registration bodies that are empowered to take
disciplinary action, or to conduct investigations in connection with the
taking of such disciplinary action.
Item 63 adds new paragraphs (ea) and (eb) to subsection 130(6) to expand
the listed categories of health professional to include midwives and nurse
practitioners. Items 64 and 65 add new paragraphs (ca), (cb), (ga) and
(gb) to subsection 130(7) to expand the listed categories of health
professional to include midwives and nurse practitioners.
Item 66 makes an associated amendment to subsection 130(9), which makes it
an offence for the person to whom the information is disclosed in the above
circumstances to further disclose that information, except in certain
circumstances, to include reference to the above new paragraphs. The
penalty for this offence is $500.
NATIONAL HEALTH ACT 1953
Item 67 Subsection 4(1)
This item inserts a definition of midwife into subsection 4(1) of the
National Health Act 1953 (the NHA). Midwife means a person who is
registered as a midwife, or authorised (however described) to practise
midwifery, by or under a law of a State or an internal Territory that
provides for the registration of midwives, or the authorisation of persons
to practise midwifery.
Item 68 Subsection 4(1)
This item inserts a definition of nurse practitioner into subsection 4(1)
of the NHA. Nurse practitioner means a person who is registered as a nurse
practitioner, or authorised (however described) to practise as a nurse
practitioner, by or under a law of a State or an internal Territory that
provides for the registration of nurse practitioners, or the authorisation
of persons to practise as nurse practitioners.
Item 69 Subsection 4(2)
This item inserts reference to new subsections 88(1D) and 88(1E) into
subsection 4(2) of the NHA. New subsections 88(1D) and (1E) are inserted
by item 84.
Item 70 Subsection 84(1)
This item inserts a definition of authorised midwife into subsection 84(1).
Subsection 84(1) contains definitions for the purposes of Part VII of the
NHA. Authorised midwife means an eligible midwife in relation to whom an
approval is in force under new section 84AAF.
Item 71 Subsection 84(1)
This item inserts a definition of authorised nurse practitioner into
subsection 84(1). Authorised nurse practitioner means an eligible nurse
practitioner in relation to whom an approval is in force under section new
84AAJ.
Item 72 Subsection 84(1)
This item inserts a definition of eligible midwife into subsection 84(1).
Eligible midwife has the meaning given by new section 84AAE.
Item 73 Subsection 84(1)
This item inserts a definition of eligible nurse practitioner into
subsection 84(1). Eligible nurse practitioner has the meaning given by new
section 84AAI.
Item 74 Subsection 84(1)
This item inserts a definition of nurse practitioner treatment into
subsection 84(1) which means, in relation to a nurse practitioner,
treatment that the nurse practitioner is authorised (however described) to
provide under a law of a State or an internal Territory.
Item 75 Subsection 84(1) (at the end of the definition of PBS prescriber)
This item amends the definition of PBS prescriber appearing in subsection
84(1) by adding new paragraphs (d) and (e) referring to an authorised
midwife and an authorised nurse practitioner. The other categories of PBS
prescriber are medical practitioners, participating dental practitioners,
and authorised optometrists.
Item 76 Subsection 84AAB(4) (note)
Item 76 revises the note to subsection 84AAB(4) to provide that section 27A
of the Administrative Appeals Tribunal Act 1975 requires the person to be
notified of the person's review rights.
Item 77 Subsection 84AAC(4) (note)
Item 77 revises the note to subsection 84AAC(4) to provide that section 27A
of the Administrative Appeals Tribunal Act 1975 requires the person to be
notified of the person's review rights.
Item 77 also alters the heading to section 84AAC by adding "of authorised
optometrist" at the end.
Item 78 Subsection 84AAD(4) (note)
Item 78 revises the note to subsection 84AAD(4) to provide that section
105AC of the NHA and section 27A of the Administrative Appeals Tribunal Act
1975 require the person to be notified of the person's review rights.
Item 78 also alters the heading to section 84AAD by adding "relating to
authorised optometrists" at the end.
Item 79 After section 84AAD
Section 84AAE Meaning of eligible midwife
This item inserts a definition of eligible midwife into Part VII of the
NHA. Eligible midwife means a person who is a midwife as defined in
subsection 4(1) of the NHA, and meets the requirements set out in a
determination made under subsection 84AAE(3).
Subsection 84AAE(2) provides that if there is no determination in force
under subsection 84AAE(3) for the purpose of the definition of eligible
midwife, a person cannot be an eligible midwife for the purpose of this
Part. This is to ensure that it will not be sufficient to be a midwife to
satisfy the definition of eligible midwife.
Subsection 84AAE(3) provides that the Minister may, by legislative
instrument, determine one or more requirements that a specified person must
meet in order to be an eligible midwife for the purposes of this Part.
Subsection 84AAE(4) provides that the requirements that may be determined
under subsection 84AAE(3) include, (but are not limited to), one or more of
the following:
. to hold particular qualifications in midwifery;
. to have particular experience in midwifery;
. to be credentialled by a particular body.
It is proposed that the requirements to be determined under subsection
84AAE(3) will reflect those to be specified in regulations made for the
purpose of paragraph 21(1)(b) of the definition of eligible midwife
inserted into the HIA by item 25.
Section 84AAF Authorised midwives
Subsection 84AAF(1) provides that an eligible midwife may apply to the
Secretary, in writing, to be an authorised midwife for the purposes of Part
VII of the NHA.
Subsection 84AAF(2) provides that the Secretary may approve the application
if satisfied that the eligible midwife meets the criteria determined under
paragraph 84AAF(3)(a). The approval is subject to any conditions
determined under paragraph 84AAF(3)(b).
Subsection 84AAF(3) provides that the Minister may, by legislative
instrument, determine either or both of the following:
. criteria by which applications are to be considered under this
section;
. conditions to which approvals under this section are subject.
This would allow the Minister, by legislative instrument, to impose
criteria or conditions in addition to the requirement to be an eligible
midwife. It is anticipated that the criteria and/or conditions to be
specified in the legislative instrument may include that the eligible
midwife:
. be a participating midwife as defined in subsection 3(1) of the HIA;
. be authorised to prescribe medicines under relevant State or Territory
law;
. prescribe pharmaceutical benefits for the purpose of midwifery
treatment and within the scope of practice authorised under relevant
State or Territory law; and
. have collaborative care arrangements in place.
Subsection 84AAF(4) provides that the Secretary must approve or reject an
application under subsection (1) as soon as practicable and notify the
applicant in writing of the decision.
A note indicates that section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person to be notified of the person's review rights.
Section 84AAG Secretary may suspend or revoke approval of authorised
midwife
Subsection 84AAG(1) provides that the Secretary may suspend or revoke an
approval under new section 84AAF if satisfied that the person to whom the
approval relates:
. is not, at the time of the suspension or revocation, an eligible
midwife;
. does not, at the time of the suspension or revocation, meet the
criteria that would apply if the person were to apply under new
subsection 84AAF(1) to be an authorised midwife at that time;
. has breached a condition to which the approval is subject under new
paragraph 84AAF(3)(b);
. has breached a condition to which the approval would be subject under
new paragraph 84AAF(3)(b) if the person were to apply under new
subsection 84AAF(1) to be an authorised midwife at that time.
Subsection 84AAG(2) provides that before deciding to suspend or revoke an
approval, the Secretary must notify the person in writing that suspension
or revocation is being considered. The notice must:
. include the Secretary's reasons for considering the suspension or
revocation; and
. invite the person to make written submissions to the Secretary within
28 days (the submission period).
Subsection 84AAG(3) provides that in deciding whether to suspend or revoke
the approval, the Secretary must consider any written submissions made by
the person during the submission period.
Subsection 84AAG(4) provides that the Secretary must give the person
written notice of the decision. If the decision is to suspend an approval,
the notice must specify the period for which the approval as an authorised
midwife is suspended.
A note indicates that section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person to be notified of the person's review rights.
Subsection 84AAG(5) provides that if the Secretary does not give the person
written notice of the decision within the period of 60 days after the end
of the submission period, the Secretary is taken to have decided not to
suspend or revoke the approval.
Subsection 84AAG(6) provides that if the Secretary suspends the approval,
the Secretary may, by written notice at any time, further suspend or revoke
the approval under subsection 84AAG(1) or remove the suspension. A
decision to further suspend or revoke an approval would be subject to the
same requirements as the original decision to suspend or revoke the
approval.
Section 84AAH Review of decisions relating to authorised midwives
Subsection 84AAH(1) provides that if the Secretary decides not to approve
an eligible midwife under section 84AAF, or suspends or revokes the
approval of a person as an authorised midwife under section 84AAG, the
person to whom the approval relates may apply, in writing, to the Secretary
for reconsideration by the Secretary of the decision.
Subsection 84AAH(2) provides that on receiving an application under
subsection 84AAH(1) relating to a decision not to approve an eligible
midwife under new section 84AAF, the Secretary must reconsider the decision
and either affirm the decision, or, approve the eligible midwife.
Subsection 84AAH(3) provides that on receiving an application under
subsection 84AAH(1) relating to a suspension or revocation of the approval
of the approval of a person as an authorised midwife under new section
84AAG, the Secretary must reconsider the decision and either affirm the
suspension or revocation, or, reinstate the approval as an authorised
midwife.
Subsection 84AAH(4) provides that the Secretary must give the applicant
written notice of the Secretary's decision under subsections 84AAH(2) or
(3).
A note indicates that section 105AC of the NHA and 27A of the
Administrative Appeals Tribunal Act 1975 require the person to be notified
of the person's review rights.
Subsection 84AAH(5) provides that in section 84AAH, 'decision' has the same
meaning as in the Administrative Appeals Tribunal Act 1975.
Item 97 inserts new subsection 105AB(3), which provides that application
may be made to the Administrative Appeals Tribunal for review of a decision
of the Secretary under paragraphs 84AAH(2)(a) or 84AAH(3)(a).
Section 84AAI Meaning of eligible nurse practitioner
This item inserts a definition of eligible nurse practitioner into Part VII
of the NHA. Eligible nurse practitioner means a person who is a nurse
practitioner as defined in subsection 4(1) of the NHA, and meets the
requirements (if any) set out in a determination made under subsection
84AAI(2).
Subsection 84AAI(2) provides that the Minister may, by legislative
instrument, determine one or more requirements that a specified person must
meet in order to be an eligible nurse practitioner for the purposes of Part
VII.
It is proposed that the requirements which may be determined under
subsection 84AAI(2) will reflect those which may be specified in
regulations made for the purpose of paragraph (b) of the definition of
eligible nurse practitioner inserted into subsection 3(1) of the HIA by
item 2.
Section 84AAJ Authorised nurse practitioners
Subsection 84AAJ(1) provides that an eligible nurse practitioner may apply
to the Secretary, in writing, to be an authorised nurse practitioner for
the purposes of Part VII of the NHA.
Subsection 84AAJ(2) provides that the Secretary may approve the application
if satisfied that the eligible nurse practitioner meets the criteria
determined under paragraph 84AAJ(3)(a). The approval is subject to any
conditions determined under paragraph 84AAJ(3)(b).
Subsection 84AAJ(3) provides that the Minister may, by legislative
instrument, determine either or both of the following:
. criteria by which applications are to be considered under this
section;
. conditions to which approvals under this section are subject.
This would allow the Minister, by legislative instrument, to impose
criteria or conditions in addition to the requirement to be an eligible
nurse practitioner. It is anticipated that the criteria and/or conditions
to be specified in the legislative instrument may include that the eligible
nurse practitioner:
. be a participating nurse practitioner as defined in subsection 3(1) of
the HIA;
. be authorised to prescribe medicines under relevant State or Territory
law;
. prescribe pharmaceutical benefits for the purpose of nurse
practitioner treatment and within the scope of practice authorised
under relevant State or Territory law; and
. have collaborative care arrangements in place.
Subsection 84AAJ(4) provides that the Secretary must, as soon as
practicable, approve or reject an application under subsection (1) and
notify the applicant in writing of the decision.
A note indicates that section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person to be notified of the person's review rights.
Section 84AAK Secretary may suspend or revoke approval of authorised nurse
practitioner
Subsection 84AAK(1) provides that the Secretary may suspend or revoke an
approval under new section 84AAJ if satisfied that the person to whom the
approval relates:
. is not, at the time of the suspension or revocation, an eligible nurse
practitioner;
. does not, at the time of the suspension or revocation, meet the
criteria that would apply if the person were to apply under new
subsection 84AAJ(1) to be an authorised nurse practitioner at that
time;
. has breached a condition to which the approval is subject under new
paragraph 84AAJ(3)(b); or
. has breached a condition to which the approval would be subject under
new paragraph 84AAJ(3)(b) if the person were to apply under new
subsection 84AAJ(1) to be an authorised nurse practitioner at that
time.
Subsection 84AAK(2) provides that before deciding to suspend or revoke the
approval, the Secretary must notify the person in writing that suspension
or revocation is being considered. The notice must:
. include the Secretary's reasons for considering the suspension or
revocation; and
. invite the person to make written submissions to the Secretary within
28 days (the submission period).
Subsection 84AAK(3) provides that in deciding whether to suspend or revoke
the approval, the Secretary must consider any written submissions made by
the person during the submission period.
Subsection 84AAK(4) provides that the Secretary must give the person
written notice of the decision. If the decision is to suspend an approval,
the notice must specify the period for which the approval as an authorised
nurse practitioner is suspended.
A note indicates that section 27A of the Administrative Appeals Tribunal
Act 1975 requires the person to be notified of the person's review rights.
Subsection 84AAK(5) provides that if the Secretary does not give the person
written notice of the decision within the period of 60 days after the end
of the submission period, the Secretary is taken to have decided not to
suspend or revoke the approval.
Subsection 84AAK(6) provides that if the Secretary suspends the approval,
the Secretary may, by written notice at any time, further suspend or revoke
the approval under subsection (1) or remove the suspension. A decision to
further suspend or revoke an approval would be subject to the same
requirements as the original decision to suspend or revoke the approval.
Section 84AAL Review of decisions relating to authorised nurse
practitioners
Subsection 84AAL(1) provides that if the Secretary decides not to approve
an eligible nurse practitioner under section 84AAJ, or suspends or revokes
the approval of person approved as an authorised nurse practitioner under
section 84AAK, the person to whom the approval relates may apply, in
writing, to the Secretary for reconsideration by the Secretary of the
decision.
Subsection 84AAL(2) provides that on receiving an application under
subsection 84AAL(1) relating to a decision not to approve an eligible nurse
practitioner under new section 84AAJ, the Secretary must reconsider the
decision and either affirm the decision, or, approve the eligible nurse
practitioner.
Subsection 84AAL(3) provides that on receiving an application under
subsection 84AAL(1) relating to a suspension or revocation of the approval
of an eligible nurse practitioner under new section 84AAK, the Secretary
must reconsider the decision and either affirm the suspension or
revocation, or, reinstate the approval of the eligible nurse practitioner.
Subsection 84AAL(4) provides that the Secretary must give the applicant
written notice of the Secretary's decision under subsections 84AAL(2) or
(3).
A note indicates that section 105AC of the NHA and section 27A of the
Administrative Appeals Tribunal Act 1975 require the person be notified of
the person's review rights.
Subsection 84AAL(5) provides that in section 84AAL, 'decision' has the same
meaning as in the Administrative Appeals Tribunal Act 1975.
Item 97 inserts new subsection 105AB(3), which provides that application
may be made to the Administrative Appeals Tribunal for review of a decision
of the Secretary under paragraphs 84AAL(2)(a) or 84AAL(3)(a).
Item 80 At the end of paragraph 86(1)(b)
Section 86 specifies the persons who are entitled, subject to Part VII, to
receive pharmaceutical benefits, without the payment of money or other
consideration, other than a charge which is in accordance with section 87
of the NHA.
Paragraph 86(1)(a) provides that this entitlement applies to a person who
is, or is to be treated as, an eligible person within the meaning of the
HIA.
Paragraph 86(1)(b) provides that the person must also be receiving medical
treatment from a medical practitioner, dental treatment from a
participating dental practitioner or optometrical treatment from an
authorised optometrist. Item 80 adds new subparagraphs 86(1)(b)(iv) and
86(1)(b)(v) which result in paragraph 86(1)(b) being expanded to include
midwifery treatment by an authorised midwife and nurse practitioner
treatment by an authorised nurse practitioner.
Items 81 and 82
Section 87 of the NHA deals with the payment that an approved pharmacist, a
medical practitioner or an approved hospital authority can demand and
receive in respect of the supply of a pharmaceutical benefit (other than a
payment from the Commonwealth).
Items 81 and 82 amend subsection 87(3) to refer to new subsection 88(6A),
added by item 86. The purpose of this amendment is to set the amount an
approved pharmacist, a medical practitioner or an approved hospital
authority may charge for a pharmaceutical benefit supplied in accordance
with a direction made under new subsection 88(6A) by an authorised midwife
or authorised nurse practitioner.
Item 83 Subsections 88(1AA) and (1B)
This item removes subsections 88(1AA) and (1B) as they are replaced by new
subsection 88(1F).
Item 84 Subsection 88(1D)
Section 88 sets out who is authorised to write a prescription for
pharmaceutical benefits and certain requirements relating to the writing or
communicating of such prescriptions.
This item removes subsection 88(1D), which is replaced by new subsection
88(1F), and inserts a new subsection 88(1D) providing that, subject to Part
VII, an authorised midwife can write a prescription on or after 1 November
2010 for the supply of any pharmaceutical benefit determined from time to
time by the Minister for the purpose of subsection 88(1D), by legislative
instrument.
This item also inserts new subsection 88(1E) providing that, subject to
Part VII, an authorised nurse practitioner can write a prescription on or
after 1 November 2010 for the supply of a pharmaceutical benefit determined
from time to time by the Minister for the purpose of subsection 88(1E), by
legislative instrument.
This item also inserts new subsection 88(1F), which replaces old
subsections 88(1AA), (1B) and (1D). Subsection 88(1F) provides that when
writing a prescription for the supply of a pharmaceutical benefit that has
a pharmaceutical item, a PBS prescriber, in identifying the pharmaceutical
benefit that he or she is directing to be supplied, need not specify:
. a listed brand of the pharmaceutical item in the pharmaceutical
benefit; or
. the manner of administration of the pharmaceutical item in the
pharmaceutical benefit.
Item 85 At the end of subsection 88(3)
This item amends subsection 88(3) to include reference to authorised
midwives and authorised nurse practitioners. The purpose of the amendment
is to require that a prescription for the supply of a pharmaceutical
benefit must not be written:
. by an authorised midwife otherwise than in relation to midwifery
treatment of a person requiring that pharmaceutical benefit; or
. by an authorised nurse practitioner otherwise than in relation to the
nurse practitioner treatment by the authorised nurse practitioner of a
person requiring that pharmaceutical benefit.
Item 86 After subsection 88(6)
This item inserts new subsections 88(6A) and (6B). The purpose of this
amendment is to allow authorised midwives and authorised nurse
practitioners to direct the supply of a certain quantity or number of units
of a pharmaceutical benefit on one occasion instead of directing a repeated
supply, if regulations have been made specifying:
. circumstances in which the authorised midwife or authorised nurse
practitioner (as appropriate) may make such a direction; or
. conditions on the making of such a direction.
The amount of a pharmaceutical benefit that can be directed to be supplied
on one occasion is limited to the total quantity or number of units that
could be prescribed as a repeated supply. This amendment will enable an
authorised midwife or authorised nurse practitioner to direct, in
circumstances where it is clinically appropriate, that a prescription and
all its repeats be supplied on one occasion to ensure provision of an
adequate supply of medicines to his or her patient.
Item 87 Paragraph 89(b)
This item amends paragraph 89(b) by inserting reference to new section
93AA.
Item 88 After section 93
This item inserts new subsection 93AA. The purpose of this amendment is to
allow authorised midwives and authorised nurse practitioners to supply
certain pharmaceutical benefits. That is, similar to section 93 which
relates to medical practitioners, this amendment relates to the carrying of
a limited range of PBS medicines for supply to patients in emergency
situations and arrangements for payment for this supply.
Subsection 93AA(1) provides that, except as prescribed by the regulations,
an authorised midwife or authorised nurse practitioner is authorised to
supply such pharmaceutical benefits as the Minister, by legislative
instrument determines, to persons who are entitled under Part VII to
receive those pharmaceutical benefits.
Subsection 93AA(2) provides that, for the purposes of section 93AA, the
Minister may, by legislative instrument, determine the maximum quantity or
number of units of pharmaceutical benefit which may be obtained by an
authorised midwife or authorised nurse practitioner within a specified
period.
Subsections 93AA(3) and (4) provide that, for the purposes of section 93AA,
regulations may make provision:
. relating to the obtaining of pharmaceutical benefits by an authorised
midwife or authorised nurse practitioner; and
. for payments by the Commonwealth in respect of the supply of
pharmaceutical benefits under section 93AA.
Item 89 After paragraph 98(1)(c)
This item amends subsection 98(1) by inserting new paragraph (d) and (e).
Subsection 98(1) provides that a person within certain categories of health
professional may request that his or her approval or authorisation under
the NHA be cancelled, and the Secretary shall cancel that approval. The
item expands subsection 98(1) by including reference to authorised midwives
and authorised nurse practitioners.
Item 90 Paragraphs 99(2A)(b), (2AB)(c) and (2B)(c)
Item 90 amends paragraphs 99(2A)(b), (2AB)(c) and (2B)(c) to ensure these
paragraphs reflect the inclusion of new subsection 88(6A) by item 86.
Section 99 of the NHA deals with entitlement to payment from the
Commonwealth for the supply of a pharmaceutical benefit.
Items 91 to 93
Section 99ZJ deals with the detention of certain drug like substances being
carried out of Australia and the retention of related documents.
Subsection 99ZJ(4) deals with documents which may be presented by an
exporter to a Customs officer as evidence that prescription drugs are for
personal use. Items 91 to 93 expand the categories of evidence listed in
subsection 99ZJ(4) to include:
. a letter from an authorised midwife or authorised nurse practitioner
signed on or after 1 November 2010;
. a signed declaration by the exporter stating that the substances are
for the personal use of the applicable person, and setting out the
name and address of the authorised midwife or authorised nurse
practitioner who prescribed the substances. In this case, the
substances must have been prescribed on or after 1 November 2010.
Item 94 Subsection 99ZJ(5)
Subsection 99ZJ(5) provides (amongst other things) that nothing in
subsection 99ZJ(4) is intended to imply that the tendering as evidence of a
document described in subsection 99ZJ(4) will be sufficient to satisfy a
Customs officer. This item amends subsection 99ZJ(5) to include reference
to new paragraphs (4)(aa) and (ab).
Item 95 After subparagraph 99ZK(3)(c)(iii)
Section 99ZK deals with detention of certain drug like substances consigned
for export and retention of related documents. This item amends subsection
99ZK(3) to insert new subparagraph 99ZK(3)(c)(iiia), which includes amongst
the documents which may be presented by an exporter to a Customs officer as
evidence that prescription drugs are for personal use, a letter from an
authorised midwife or authorised nurse practitioner signed on or after 1
November 2010.
Item 96 Paragraph 103(4AA)(a)
Subsection 103(4AA) is an offence provision which prohibits a person from
having in his or her possession, or consigning for export, a quantity of
pharmaceutical benefit or pharmaceutical item that exceeds the 'designated
quantity' of that pharmaceutical benefit or item, unless:
. the quantity was supplied to the person (whether on prescription or
otherwise) by an approved supplier for the medical, dental or
optometrical treatment of the person, or certain other specified
persons (paragraph 103(4AA)(a)); or
. the person has some other reasonable excuse for possessing the
quantity or consigning the quantity for export (paragraph
103(4AA)(b)).
This item amends paragraph 103(4AA)(a) to include reference to midwifery
treatment, or nurse practitioner treatment by an authorised nurse
practitioner.
The penalty for this offence is imprisonment for two years. Subsection
103(4AA) does not apply if the person has reasonable excuse.
In a prosecution for an offence against subsection 103(4AA), the defendant
bears the evidential burden of proving that paragraph 103(4AA)(a) or (b)
applies (subsection 103(4AB)). 'Designated quantity' is defined in
subsection 103(4AC). A certificate by the Medicare Australia Chief
Executive Officer is prima facie evidence of certain matters in proceedings
for an offence against subsection 103(4AA) (subsection 103(4AD)). A person
is not liable to be convicted of an offence against subsection 103(4) and
103(4A) in respect of the same action (subsection 103(4AE)).
Item 97 After subsection 105AB(2)
Section 105AB deals with applications for review by the Administrative
Appeals Tribunal of certain decisions under the NHA. This item inserts a
new subsection 105AB(3) providing that application may be made to the
Administrative Appeals Tribunal for review of a decision of the Secretary
under new paragraphs 84AAH(2)(a) or (3)(a) or 84AAL(2)(a) or (3)(a). That
is, a decision resulting from a reconsideration of the initial decision not
to approve a person as an authorised midwife or authorised nurse
practitioner, or to suspend or revoke the approval of an authorised midwife
or authorised nurse practitioner.
Items 98 to 102
Items 98 to 102 amend section 133 which deals with suspension and
revocation by the Secretary of approvals or authorities of specified
categories of health professional under Part VII of the NHA, where the
person is charged before a court with having committed certain offences,
including an offence against the NHA, being an offence that arises out of
or is connected with the supply of pharmaceutical benefits or special
pharmaceutical products under Part VII.
Item 98 inserts new paragraphs (bb) and (bc) into subsection 133(1) to
permit the Secretary to suspend, under section 133:
. in the case of a defendant who is an authorised midwife, the approval
of that person as an authorised midwife under new section 84AAF, or,
the authority of that person to supply prescribed pharmaceutical
benefits conferred on that person by new section 93AA; or
. in the case of a defendant who is an authorised nurse practitioner,
the approval of that person as an authorised nurse practitioner under
new section 84AAJ, or, the authority of that person to supply
prescribed pharmaceutical benefits conferred on that person by new
section 93AA.
Items 99 to 102 amend subsections 133(2), (5), (6), and (7) to ensure that
section 133 applies in relation to authorised midwives and authorised nurse
practitioners.
Items 103 and 104
Section 134 makes it an offence, when an approval or authority is suspended
or revoked, to do certain things, including writing a prescription for the
purposes of Part VII. Items 103 and 104 amend subsection 134(1), including
by inserting new paragraphs (d) and (da) into subsection 134(1), so that it
applies where:
. the approval of a person as an authorised midwife under new section
84AAF is suspended or revoked; or
. the approval of a person as an authorised nurse practitioner under new
section 84AAJ is suspended or revoked.
The penalty for an offence against section 134 is $5,000 or imprisonment
for two years, or both.
Items 105 to 107
Subsection 134(3) makes it an offence, upon the revocation of certain
authorities or approvals, for certain persons to fail to deliver to a
person specified by the Secretary all drugs and medicinal preparations in
their possession which he or she had obtained for the purposes of Part VII
of the NHA. As a result of the amendments contained in items 105 to 107,
subsection 134(3) applies to authorised midwives and authorised nurse
practitioners. The penalty for this offence is $5000 or imprisonment for
two years, or both.
Item 105 amends subsection 134(3) by deleting 'authority conferred upon a
medical practitioner by section 88 or section 93, the medical practitioner
shall' and substituting 'authority or approval referred to in subsection
(4), the person to whom the authority or approval relates must'.
Item 106 replaces 'that medical practitioner's' with 'the first-mentioned
person's' in subsection 134(3). This is a technical change resulting from
the amendment made by item 105.
Item 107 inserts new subsection 134(4). This subsection expands the list
of authorisations and approvals to which section 134 relates so that it
applies to:
. an authority conferred upon a medical practitioner by section 88 or
93;
. an approval of a person as an authorised midwife under new section
84AAF;
. an approval of a person as an authorised nurse practitioner under new
section 84AAJ; and
. an authority conferred on an authorised midwife or authorised nurse
practitioner by new section 93AA.
Items 108 to 111
Items 108 to 111 amend section 135A, by expanding the statutory
authorisations for release of information contained in subsection 135A(6)
and (7), and by making an associated change to paragraph 135A(9)(c).
Subsection 135A(1) is a secrecy provision which makes it an offence to
release certain information, except in certain circumstances. The penalty
for this offence is $5,000 or imprisonment for two years, or both.
Subsections 135A(6) and (7) permit release of information, in relation to
listed categories of health professional, in certain circumstances, to
State or Territory registration bodies that are empowered to take
disciplinary action, or to conduct investigations in connection with the
taking of such disciplinary action.
Item 108 adds new paragraphs (ga) and (gb) to subsection 135A(6) to expand
the listed categories of health professional to include midwives and nurse
practitioners. Items 109 and 110 add new paragraphs (da), (db), (l) and
(la) to subsection 135A(7) to expand the listed categories of health
professional to include midwives and nurse practitioners.
Item 111 makes an associated amendment to subsection 135A(9), which makes
it an offence for the person to whom the information is disclosed in the
above circumstances to further disclose that information, except in certain
circumstances, to include reference to the above new paragraphs. The
penalty for this offence is $5000 or imprisonment for two years, or both.
Item 112 After paragraph 139A(1)(db)
Section 139A deals with certain matters which the Secretary may certify in
writing. The certification may then be used as non-conclusive evidence, in
proceedings under the NHA. This item amends subsection 139A(1) to include:
. new paragraphs (dc), (dd), referring to a certification that a person
was (or was not) an authorised midwife, or was (or was not) an
authorised nurse practitioner; and
. new paragraph (de) referring to a certification that a person was (or
was not) authorised under new section 93AA to supply pharmaceutical
benefits specified in the certificate.
SCHEDULE 2-AMENDMENTS CONSEQUENTIAL ON THE ENACTMENT OF THE MIDWIFE
PROFESSIONAL INDEMNITY (COMMONWEALTH CONTRIBUTION) SCHEME ACT 2009
HEALTH INSURANCE ACT 1973
Items 1 to 3
Subsection 130(1) is a secrecy provision which makes it an offence to
release certain information, except in certain circumstances. The penalty
for this offence is $500.
Item 1 amends subsection 130(1) by replacing reference to 'medical
indemnity legislation' with reference to 'indemnity legislation'. Items 2
and 3 change the definition of medical indemnity legislation appearing in
subsection 130(25) to a definition of indemnity legislation, which includes
reference to the:
. proposed Midwife Professional Indemnity (Commonwealth Contribution)
Scheme Act 2009; and
. proposed Midwife Professional Indemnity (Run-off Cover Support
Payment) Act 2009.
MEDICAL INDEMNITY ACT 2002
Item 4 Subsection 4(1)
This item inserts a definition of eligible midwife in the Medical Indemnity
Act 2002 (the MI Act). Eligible midwife has the same meaning as in the
proposed Midwife Professional Indemnity (Commonwealth Contribution) Scheme
Act 2009.
Item 5 Subsection 28(1)
This item amends subsection 28(1) by inserting, after 'profession', ',
other than practice as an eligible midwife'.
Subsection 28(1), as amended, provides that under Division 2 - High cost
claim indemnity scheme, a high cost claim indemnity may not be paid to an
insurer or medical defence organisation in relation to a claim against a
person that relates to an incident occurring in the course of the practice
by that person as an eligible midwife.
Item 6 Paragraph 30(1)(b)
This item amends paragraph 30(1)(b) by inserting, after 'profession', ',
other than practice as an eligible midwife'. As a result of this
amendment, a high cost claim indemnity is not payable where the claim
relates to an incident occurring in the course of practice, by a
practitioner, as an eligible midwife.
Item 7 Paragraph 34A(1)(a)
This item amends paragraph 34A(1)(a) by inserting, after 'profession',
'(other than practice as an eligible midwife)'.
Section 34A deals with when an exceptional claims indemnity may be paid in
relation to the liability of a person. The amendment excludes claims
relating to incidents occurring in the course of the practice by the person
as an eligible midwife from claims for which an exceptional claims
indemnity may be paid.
Item 8 Paragraph 34E(1)(b)
This item amends paragraph 34E(1)(b) by inserting, after 'profession', ',
other than practice as an eligible midwife'. Section 34E deals with when
the Chief Executive Officer of Medicare Australia may issue a certificate
stating that a claim is a qualifying claim for the exceptional claims
indemnity scheme.
As a result of this amendment, the Chief Executive Officer of Medicare
Australia may only issue a certificate where he or she is satisfied that,
amongst other things, the claim relates to an incident that occurs in the
course of practice by a practitioner of a medical profession, other than
practice as an eligible midwife.
MEDICARE AUSTRALIA ACT 1973
Items 9 to 18 amend the Medicare Australia Act 1973 (the MA Act) to ensure
that the investigative powers of Medicare Australia may be exercised in
relation to the offences contained in the proposed Midwife Professional
Indemnity (Commonwealth Contribution) Scheme Act 2009.
Items 9 and 10
The amendment to subsection 3A(1) of the MA made by items 9 and 10 would
provide that for the purposes of the MA Act, other than Divisions 2 and 3
of Part IID, a relevant offence includes:
. an offence against the proposed Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2009; and
. an offence against section 6 of the Crimes Act 1914, or sections 11.1,
11.4 or 11.5 of the Criminal Code, that relates to an offence against
the proposed Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Act 2009.
Items 11 to 14
Subsection 3A(2) of the MA Act provides for definitions of relevant
offences for the purposes of Division 2 of Part IID of the MA Act.
The amendments to subsection 3A(2) made by items 11 to 14 would provide
that a relevant offence includes:
. an offence against the proposed Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2009;
. an offence against section 6 of the Crimes Act 1914, or sections 11.1,
11.4 or 11.5 of the Criminal Code, that relates to an offence against
the proposed Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Act 2009; and
. an offence against sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1,
137.1, 137.2, 145.2 or 145.3 of the Criminal Code that relates to a
Commonwealth contribution (within the meaning of the proposed Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Act 2009).
Item 12 also updates the reference to the Crimes Act 1914 contained in
paragraph 3A(2)(c) by replacing reference to an offence against sections 7,
7A or paragraph 86(1)(a) of the Crimes Act 1914 with reference to an
offence against sections 11.1, 11.4 or 11.5 of the Criminal Code. Sections
7, 7A and paragraph 86(1)(a) of the Crimes Act 1914 have been repealed, and
are now dealt with by sections 11.1, 11.4 and 11.5 of the Criminal Code.
Items 15 to 17
Subsection 3A(2A) of the MA Act provides for definitions of relevant
offences for the purposes of Division 3 of Part IID of the MA Act.
Division 3 of Part IID relates to searches in relation to possible relevant
offences and civil contraventions.
The amendments to subsection 3A(2A) made by items 6 to 8 would provide that
a relevant offence includes:
. an offence against the proposed Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2009;
. an offence against section 6 of the Crimes Act 1914, or sections 11.1,
11.4 or 11.5 of the Criminal Code, that relates to an offence against
the proposed Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Act 2009; and
. an offence against sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1,
137.1, 137.2, 145.2 or 145.3 of the Criminal Code that relates to a
Commonwealth contribution (within the meaning of the proposed Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Act 2009).
Item 18 At the end of subsection 42(2)
Section 42 deals with the annual report of the Medicare Australia CEO to
the Minister administering the Medicare Australia Act 1973. This item
amends subsection 42(2) to provide that the annual report must also include
information about the operation of the following proposed Acts during the
financial year to which the report relates:
. Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act
2009;
. Midwife Professional Indemnity (Run-off Cover Support Payment) Act
2009.
NATIONAL HEALTH ACT 1953
Items 19 to 21
Subsection 135A(1) is a secrecy provision which makes it an offence to
release certain information, except in certain circumstances. The penalty
for this offence is $5,000 or imprisonment for two years, or both.
Item 19 amends subsection 135A(1) by replacing reference to 'medical
indemnity legislation' with reference to 'indemnity legislation'. Items 20
and 21 change the definition of medical indemnity legislation appearing in
subsection 135A(24) to a definition of indemnity legislation which includes
reference to the:
. proposed Midwife Professional Indemnity (Commonwealth Contribution)
Scheme Act 2009; and
. proposed Midwife Professional Indemnity (Run-off Cover Support
Payment) Act 2009.