EXPLANATORY STATEMENT
Issued by the authority of the Minister for Mental Health and Ageing
National Health Act 1953
Continence Aids Payment Scheme Variation 2013 (No. 2)
The National Health Act 1953 (the Act) is an act relating to the provision of pharmaceutical, sickness and hospital benefits, and of medical and dental services.
Section 12 of the Act provides that the Minister may, by legislative instrument, formulate a Continence Aids Payment Scheme, under which the Commonwealth makes payments as a contribution towards the cost of buying products that help manage incontinence.
Background
The Continence Aids Payment Scheme 2010 (CAPS) was introduced on 1 July 2010, replacing the former Continence Aids Assistance Scheme (CAAS). Assistance for eligible persons changed from the physical supply of subsidised continence aids under CAAS to a monetary payment under CAPS intended to contribute towards the purchase of continence aids.
Continence Aids Payment Scheme Variation 2013 (No. 2) (the Variation)
The Variation specifies, as an additional category of people who are not eligible to participate in the Continence Aids Payment Scheme, people who are participants in the National Disability Insurance Scheme (NDIS) whose NDIS plan contains a statement specifying the reasonable and necessary supports (including continence aids) that will be funded under the NDIS. This change is consequential to the enactment of the National Disability Insurance Scheme Act 2013.
Details of Variation
Items 1 and 2 of Schedule 1 insert a new paragraph 4(2)(ca) and subsection 4(5) which provides that a person is not eligible to participate in the CAPS if the person is a participant in the NDIS and his or her NDIS plan contains a statement specifying the reasonable and necessary supports that will be funded under the NDIS (including continence aids). The purpose of this amendment is to ensure that NDIS participants do not receive double funding of continence aids through the NDIS and the CAPS.
Consultation
The design of the NDIS was a collaborative exercise relying on substantial contributions from stakeholders, including the COAG Select Council on Disability Reform, the NDIS Advisory Group, four Expert Groups comprising people with disabilities, their carers, advocates, service providers and other sector experts and the National Disability and Carer Alliance which undertook public engagements around the country.
The changes to the CAPS are consequential to the implementation of the Living Longer Living Better reforms and the enactment of the National Disability Insurance Scheme Act 2013.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required for this Variation (ID 14868).
Legislative instrument
The Variation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Commencement
The instrument commences on 1 July 2013.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Continence Aids Payment Scheme Variation 2013 (No. 2)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of Legislative Instrument
The Variation specifies, as an additional category of people who are not eligible to participate in the Continence Aids Payment Scheme (CAPS), people who are participants in the National Disability Insurance Scheme (NDIS) whose NDIS plan contains a statement specifying the reasonable and necessary supports (including continence aids) that will be funded under the NDIS. This change is consequential to the enactment of the National Disability Insurance Scheme Act 2013.
Human rights implications
This Legislative Instrument engages the right to equality and non-discrimination contained in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights and the right to health contained in Article 12 of that covenant. This Legislative Instrument also engages the rights of people with disabilities in the Covenant on the Rights of Persons with Disabilities, especially articles 3(b) and 4 which require Parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability.
The Legislative Instrument limits the rights of people with disabilities by excluding from participation in the CAPS people who are participants in the NDIS whose NDIS plan contains a statement specifying the reasonable and necessary supports (including continence aids) that will be funded under the NDIS.
This limitation on the right to equality and non-discrimination is designed to achieve the legitimate objective of ensuring that a person who is receiving continence aids as part of a care package subsidised by the Commonwealth under the National Disability Insurance Scheme Act 2013 does not also receive a payment from the Commonwealth under the National Health Act 1953 which is intended as a contribution towards the purchase of continence aids, which would be a form of ‘double-dipping’.
This Legislative Instrument engages but does not limit the rights to health and to non-discrimination on the basis of disability. A care recipient who is excluded from participation in the CAPS, will be provided with the continence aids he or she requires to assist in maintaining the highest attainable standard of physical and mental health as part of the NDIS package of care and services he or she is receiving.
Conclusion
This Legislative Instrument is compatible with human rights as, to the extent that it limits the right to equality and non-discrimination, the limitation is reasonable, necessary and proportionate.
The Hon Mark Butler MP, Minister for Mental Health and Ageing