Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021

Administered by Department of Health, Disability and Ageing

Legislation au F2021L00815 Not in force Legislative Instrument

Legislation content

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:

  1. 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

Overview

The Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 is an amending declaration made under the Health Insurance Act 1973. The Act was enacted to establish a scheme encouraging efficient quality assurance activities related to the provision of health services funded by the Government, including through the Medicare Benefits Schedule, public hospital services, and Health Program Grants. The purpose of this amendment is to include the Victorian Perioperative Consultative Council (VPCC) within the description of the declared activity, being the Australian and New Zealand Audits of Surgical Mortality (ANZASM). The VPCC, a statutory body established under Victorian legislation, will share documents and information with the VASM relating to mortality cases that require multidisciplinary review and anaesthetic-related mortality cases. This sharing aims to confirm the accurate capture and triage of mortality and avoid case duplication. The amendment will allow the VPCC to make recommendations and monitor their implementation concerning the documents and information received from VASM. The Declaration is made by the Minister for Health and is compatible with human rights, promoting the right to health and not limiting the right to privacy. The Declaration is an amending declaration made under subsection 124X(1) of the Health Insurance Act 1973. The Act was enacted by the Australian Parliament to establish a scheme encouraging efficient quality assurance activities related to the provision of health services funded by the Government. The scheme aims to ensure the highest possible health care standards are maintained. The Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 amends the Principal Declaration to include the VPCC within the description of the declared activity, being the ANZASM. The VPCC will share documents and information with the VASM relating to mortality cases that require multidisciplinary review and anaesthetic-related mortality cases. The sharing aims to confirm the accurate capture and triage of mortality and avoid case duplication. The VPCC is also subject to restrictions on treatment of those documents and information under Part VC of the Act and the confidentiality requirements of any relevant Victorian qualified privilege legislation. The Declaration is compatible with human rights as it promotes the right to health and does not limit the right to privacy.

Scope and Application

The Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 amends the Health Insurance Act 1973 by including the Victorian Perioperative Consultative Council (VPCC) in the description of the Australian and New Zealand Audits of Surgical Mortality (ANZASM) as a quality assurance activity to which Part VC of the Act applies. This amendment aims to improve the quality assurance processes related to surgical mortality by facilitating the sharing of documents and information between the Victorian Audit of Surgical Mortality (VASM) and the VPCC. The amendment ensures that the VPCC is subject to restrictions on the treatment of shared documents and information under Part VC of the Act and any relevant Victorian qualified privilege legislation. The Declaration applies to the VPCC as a person engaging in the declared activity, but only to the extent that relevant State or Territory law would not otherwise apply. The Declaration is a legislative instrument under the Legislation Act 2003 and commences on the day after registration on the Federal Register of Legislation. The Declaration extends the application of the qualified privilege scheme established by Part VC of the Health Insurance Act 1973 to include the VPCC in the ANZASM. The scheme provides protection from disclosure of information and documents known solely as a result of the ANZASM or created solely for the purpose of the ANZASM. This protection is intended to encourage participation in quality assurance activities, thereby helping to ensure that the highest possible health care standards are maintained. The inclusion of the VPCC in the ANZASM allows for the sharing of notifications of mortality from the health sector and validates notifications received by each body to confirm the accurate capture and triage of mortality, and avoidance of case duplication. The VPCC, in accordance with its functions under Division 2 of Part 4 of the Public Health and Wellbeing Act 2008 (Vic), may make recommendations in respect of the documents and information received from the VASM and monitor the implementation of those recommendations.

Key Provisions

The Health Insurance (Quality Assurance Activity – Australian and New Zealand Audits of Surgical Mortality) Amendment Declaration 2021 (section 1) amends the Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973 (section 4). Specifically, it modifies the description of the quality assurance activity in the Principal Declaration by including the Victorian Perioperative Consultative Council (VPCC) in the description of the Australian and New Zealand Audits of Surgical Mortality (ANZASM) (Schedule 1, Item 1). This amendment enables the VASM to share documents and information with the 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. The VPCC may make recommendations in respect of the documents and information received from the VASM and monitor the implementation of those recommendations. The remainder of the declared activity is unchanged. The Act imposes obligations on the parties involved in the ANZASM, including the VPCC. The ANZASM participants, including the VPCC, must adhere to the confidentiality and qualified privilege provisions set out in Part VC of the Act. This means that 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. The VPCC must also comply with any relevant Victorian qualified privilege legislation. Additionally, the VPCC must ensure that any personal information collected, stored, secured, used, disclosed, or published as part of the ANZASM is de-identified to protect the privacy of individuals. There are no explicit offences, penalties, or civil/criminal consequences mentioned in the text for breaches of the obligations under the Act. However, the qualified privilege scheme established by Part VC of the Act is aimed at encouraging participation in quality assurance activities. Any failure to comply with the confidentiality and qualified privilege provisions could potentially lead to legal consequences under the relevant legislation. Furthermore, any misuse or improper handling of personal information in breach of privacy laws could result in civil or criminal penalties under applicable privacy legislation. The specific penalties would depend on the jurisdiction and the nature of the breach.

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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.