Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (No. 2)

Administered by Department of Health, Disability and Ageing

Legislation au F2013L01840 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Health Insurance Act 1973

Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (No.2)

 

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not specified in an item in the General Medical Services Table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were so specified.  The Table is set out in the Health Insurance (General Medical Services Table) Regulation (the Regulation), which is re-made each year.

 

The purpose of the Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (No.2) (the Determination) is to
enable the ongoing listing of item 18375 for the injection of botulinum toxin for urinary incontinence due to neurogenic detrusor overactivity.  The Determination will remain in place until listing can occur through the Regulation. 

 

Item 18375 was introduced on 1 October 2013 by the Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (the Current Determination).  The Current Determination ceases on 31 October 2013, after which item 18375 was expected to be included in the re-make of the Regulation due to commence on 1 November 2013.  However, the 1 November 2013 re-make has been postponed and is now expected to occur in late November 2013.  The Determination is required to maintain listing of item 18375 until the new Regulation commences. 

 

The Determination continues to apply several provisions found in the Table to item 18375:

  • as for all other items in the Table, Medicare will not be payable for the Botox item if it is provided in contravention of a law of the Commonwealth, a State or a Territory (paragraph 7(1)(a) of the Determination).
  • as for all other surgical services in the Table, the Botox item will require personal attendance by a single medical practitioner on a single patient on a single occasion, and the attendance must be by a medical practitioner who is not employed at a public hospital or, if employed at a public hospital, is exercising his or her right of private practice (paragraphs 7(1)(b) and (c) of the Determination);
  • as for other botulinum toxin items 18350 – 18373 in the Table:
    • the Botox item will only be claimable by a medical practitioner registered by the Chief Executive Medicare to participate in the arrangements made under paragraph 100(1)(b) of the National Health Act 1953 for the purpose of providing an adequate pharmaceutical service for individuals requiring treatment with botulinum toxin; and
    • if the cost of the Botox injection supplied in connection with the service described in the item is not subsidised by the Commonwealth or a State, the service is not taken to include the supply of the Botox (paragraph 7(1)(d) of the Determination).

 

These provisions are all applied under the Current Determination.

 

 

Consultation

No consultation has been undertaken in relation to the making of this Determination.  Its purpose is to maintain the current listing of item 18375 until it can be incorporated into the Regulation.  The Determination makes no changes to the rules applying to the use of item 18375.

The Determination commences on 1 November 2013 and ceases as if repealed on the date the Health Insurance (General Medical Services) Table Regulation 2012 ceases, or is earlier repealed as part of the annual remake of the Regulation.  The new Regulation, expected to be made in late November 2013, will list item 18375 directly in that Regulation.  

 

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HEALTH INSURANCE (BOTULINUM TOXIN FOR URINARY INCONTINENCE DUE TO NEUROGENIC DETRUSOR OVERACTIVITY) DETERMINATION 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 the Legislative Instrument

The Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (No.2) (the Determination) enables the ongoing listing of item 18375 for the injection of botulinum toxin for urinary incontinence due to neurogenic detrusor overactivity.

Item 18375 was introduced on 1 October 2013 by the Health Insurance (Botulinum Toxin for Urinary Incontinence due to Neurogenic Detrusor Overactivity) Determination 2013 (the Current Determination).  The Current Determination ceases on 31 October 2013, after which time item 18375 was expected to be included in the annual re-make of the Health Insurance (General Medical Services Table) Regulation due to commence on 1 November 2013. 

 

However, the 1 November 2013 re-make was postponed and is now expected to occur in late November 2013.  The Determination is required to maintain Medicare access to item 18375 until the new Regulation commences. 

Human rights implications

This Determination engages Articles 2, 9 and 12 and of the International Covenant on Economic, Social and Cultural Rights (ICESCR), specifically the rights to health and social security. 

The right to health – the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in article 12(1) of the ICESCR.  The UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. 

The Committee has also stated that the ‘highest attainable standard of health’ takes into account the country’s available resources.  The right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realization of the highest attainable standard of health.

The right to social security is contained in article 9 of the ICESCR.  It requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care.  Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation.

Analysis

The Determination will advance the human rights to health and social security by maintaining current Commonwealth assistance to private patients with financial costs associated with receiving this clinically relevant medical service through the Medicare scheme.  

 

Richard Bartlett

First Assistant Secretary

Medical Benefits Division

Department of Health

 

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.