EXPLANATORY STATEMENT
HEALTH INSURANCE ACT 1973
Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021
Authority
The Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 (the Declaration) is an amending declaration made under subsection 124X(1) of the Health Insurance Act 1973 (the Act).
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose of the Instrument
Part VC of the Act creates a scheme to encourage efficient quality assurance activities in connection with the provision of health services. Those activities help to ensure the quality of health services that are funded by the Government, including through the Medicare Benefits Schedule, public hospital services, and Health Program Grants. The scheme encourages participation in such activities by protecting certain information from disclosure, and also by providing some protection from civil liability to certain persons engaged in those activities in good faith, in respect of those activities.
Subsection 124X(1) of the Act provides that the Minister may, by legislative instrument, declare a quality assurance activity described in the declaration to be a quality assurance activity to which Part VC applies.
The Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973 – QAA 1/2017 (Principal Declaration) declares the Australian and New Zealand Audit of Surgical Mortality (ANZASM) to be a quality assurance activity to which Part VC of the Act applies.
The purpose of the Declaration is to amend the Principal Declaration so as to include the Victorian Perioperative Consultative Council (VPCC), which is a statutory body established by the Public Health and Wellbeing Act 2008 (Vic) and Public Health and Wellbeing Regulations 2019 (Vic), in the description of the declared activity, being the ANZASM. The Victorian Audit of Surgical Mortality (VASM) shares documents and information with the VPCC relating to mortality cases identified by VASM that require multidisciplinary review, and anaesthetic-related mortality cases identified by VASM.
The documents and information are shared between the VASM and VPCC for the purposes of sharing notifications of mortality from the health sector and validating notifications received by each body to confirm the accurate capture and triage of mortality, and avoidance of case duplication.
In accordance with its functions under Division 2 of Part 4 of the Public Health and Wellbeing Act 2008 (Vic), the VPCC may make recommendations in respect of the documents and information received from the VASM and monitor the implementation of those recommendations.
Pursuant to s124ZC of the Act, Part VC of the Act will continue to apply to the VPCC as a person engaging in the declared activity only to the extent to which any relevant State or Territory law would not otherwise apply.
The remainder of the declared activity is unchanged.
The Declaration is a legislative instrument for the purposes of the Legislation Act 2003. The Declaration commences on the day after registration on the Federal Register of Legislation. The Declaration will be repealed in accordance with Division 1 of Part 3 of the Legislation Act 2003.
Details of the Declaration are set out in Attachment A.
CONSULTATION
The Royal Australasian College of Surgeons (RACS), as the applicant for declaration of the activity, and the Australian Commission on Quality and Safety in Health Care were consulted in relation to the content of the Declaration.
Further consultation was not considered necessary as the quality assurance activity relates only to the conduct of the ANZASM activity, which is an activity undertaken by the RACS.
The amendment of the declared activity to include the VPCC will not result in any direct or substantial indirect effect on business.
ATTACHMENT A
Section 1 – Name
This section provides for the Declaration to be referred to as the Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 (the Amendment Declaration).
Section 2 – Commencement
This section provides that the Declaration commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section provides that the Declaration is made under subsection 124X(1) of the Health Insurance Act 1973.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Section 4 – Schedule
This section provides that Schedule 1 amends the Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973 – QAA 1/2017 (Principal Declaration).
Schedule 1 – Amendments
Item 1 – Item 1, Schedule 1 (Description of Quality Assurance Activity)
This Item replaces the description of the declared activity in Schedule 1 of the Principal Declaration with a new description that includes the VPCC. The amended description provides:
- the names of each Audit of Surgical Mortality participating in the ANZASM. These are the:
(a) Australian Capital Territory Audit of Surgical Mortality;
(b) Northern Territory Audit of Surgical Mortality;
(c) Queensland Audit of Surgical Mortality;
(d) South Australian Audit of Surgical Mortality;
(e) Tasmanian Audit of Surgical Mortality;
(f) Victorian Audit of Surgical Mortality (VASM);
(g) Western Australian Audit of Surgical Mortality; and
(h) New South Wales’ (NSW) Collaborative Hospitals Audit of Surgical Mortality (CHASM);
2. the role of the VPCC in the conduct of the VASM, relevant disclosures to be made by the VASM to the VPCC and the potential use of disclosed information by the VPCC;
3. the ANZASM and each of the included Audits of Surgical Mortality is managed by the RACS, with the exception of the NSW CHASM which is co-governed by RACS and the NSW Clinical Excellence Commission;
4. the ANZASM includes a self-reporting system for participating surgeons, anaesthetists and radiologists to record information relating to patient deaths in hospitals where the patient was under the care of:
(a) a surgeon (surgical admissions), whether or not an operation was performed; or
(b) a physician (medical and non-surgical admission) and there was surgical intervention;
5. components within the ANZASM include but are not limited to:
(a) notification of death by surgeon, radiologist or anaesthetist, hospital or health system;
(b) completion and review of relevant case form;
(c) report to reporting surgeon, anaesthetist or radiologist by assessing surgeon;
(d) public reporting on aggregated data;
(e) strategic and national review by the ANZASM Steering Committee; and
(f) the making of recommendations and monitoring of the implementation of those recommendations (including by the VPCC in respect of the ANZASM in accordance with its functions under Division 2 of Part 4 of the Public Health and Wellbeing Act 2008 (Vic)).
6. the ANZASM is a mandatory component of the RACS Continuing Professional Development Scheme.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021
This Declaration 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 Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973 – QAA 1/2017 (the Principal Declaration) declares the Australian and New Zealand Audits of Surgical Mortality (ANZASM) to be a quality assurance activity to which Part VC of the Health Insurance Act 1973 (the Act) applies. Information known solely as a result of the ANZASM, or documents created solely for the purpose of the ANZASM, will be covered by qualified privilege.
This Declaration amends the Principal Declaration so as to include the Victorian Perioperative Consultative Council (VPCC), which is a statutory body established by the Public Health and Wellbeing Act 2008 (Vic) and Public Health and Wellbeing Regulations 2019 (Vic), in the description of the declared activity, being the ANZASM.
Human rights implications
This Declaration engages the right to health as set out in Article 12 of the International Covenant on Economic, Social and Cultural Right by assisting with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The qualified privilege scheme established by Part VC of the Act is aimed at encouraging participation in quality assurance activities that help ensure the highest possible health care standards are maintained. The application of the qualified privilege scheme to the ANZASM (through the Principal Declaration as amended by this Declaration) addresses, in part, the findings of the Safer Care Victoria Review of The Victorian Perioperative Consultative Council (VPCC): Improving the review of perioperative mortality and morbidity in Victoria.
The amended description of the declared activity enables the VASM to determine how it shares documents and information with the VPCC. Under this arrangement, the VPCC is subject to restrictions on treatment of those documents and that information under Part VC of the Act. The VPCC is also subject to the confidentiality requirements of any relevant Victorian qualified privilege legislation.
This Declaration also engages, but does not limit, the right to privacy as contained in Article 17 of the International Covenant on Civil and Political Rights by involving the collection, storage, security, use, disclosure or publication of personal information. Data collected as part of the quality assurance activity will be de-identified to ensure that no individual or individuals are identified prior to disclosure of the information outside of the declared activity.
Conclusion
This Declaration is compatible with human rights as it promotes the right to health and does not limit the right to privacy.
Professor Paul Kelly
Chief Medical Officer
Department of Health