Health Insurance (Section 19AB Exemptions) Guidelines 2012

EXPLANATORY STATEMENT

Health Insurance Act 1973

Health Insurance (Section 19AB Exemptions) Guidelines 2012

Authority

Section 19AB of the Health Insurance Act 1973 (the Act) prevents the payment of Medicare benefits for services provided by or on behalf of an overseas trained doctor (OTD) or foreign graduate of an accredited medical school (FGAMS), except where:

• the person was first recognised as a medical practitioner in Australia before 1997;
•              the person was an OTD prior to 1 January 1997 and before that date had applied to undertake examinations to become a medical practitioner; or
•              the relevant medical service is provided more than 10 years after the person first became a medical practitioner, and the person either first became a medical practitioner before 18 October 2001, was a permanent Australian at the time of becoming a medical practitioner, or became a permanent Australian after first becoming a medical practitioner.

Under subsection 19AB(3) of the Act, the Minister for Health has the power to grant an exemption from the restrictions in section 19AB of the Act (an exemption).  An exemption may be granted in respect of one person or a class of persons.  The Minister also has the power under subsection 19AB(4) of the Act to make exemptions subject to any conditions he or she considers fit. 

Subsection 19AB(4B) of the Act provides that the Minister must, in writing, determine guidelines that apply to:

• the granting of exemptions to allow OTDs and FGAMS subject to restrictions under section 19AB to access the Medicare benefits arrangements for their professional medical services; and
• the imposition of conditions on such exemptions.  

Purpose

Guidelines made under subsection 19AB(4B) of the Act, the Health Insurance Act 19AB Guidelines, first commenced in October 2001 (the Previous Guidelines).  The Health Insurance (Section 19AB Exemptions) Guidelines 2012 (the Guidelines) revoke and replace the Previous Guidelines. 

The new Guidelines:

• take account of changes to terminology used in section 19AB of the Act as a result of the Health Insurance Amendment (New Zealand and Overseas Trained Doctors) Act 2010, which came into effect on 1 April 2010;
• update drafting to comply with modern standards for drafting of legislative instruments; and
• reflect changes in the general policy for the granting of exemptions and clarify how exemption decisions are to be made.

Background

Districts of workforce shortage (DWS)

The Guidelines provide a framework for the consideration of the granting of exemptions and the imposition of conditions on such exemptions.  An exemption enables OTDs and FGAMS who would otherwise be prevented from providing Medicare-eligible services by the operation of section 19AB of the Act to provide such services. 

Under the Guidelines, when making a decision in respect of an application for an exemption the primary consideration will usually be whether the applicant is seeking to practise privately within a DWS for their field of practice.  In other words, where the applicant is a cardiologist the primary consideration in granting an exemption will generally be whether the applicant is intending to provide professional services in a DWS for cardiologists.  Where the applicant is a general practitioner or other non-specialist for Medicare purposes (GP or other non-specialist), the primary consideration will generally be whether the applicant is intending to provide services in a DWS for GPs and other non-specialists.

The requirement for the primary consideration in most exemption decisions to be whether the applicant will be providing professional services in a DWS aims to alleviate medical workforce shortages in DWS areas.

The Guidelines also provide for circumstances where DWS will not be the primary consideration, for example where the applicant for an exemption will be providing locum services at an Aboriginal and Torres Strait Islander primary health care service in respect of which a direction under subsection 19(2) of the Act is in force.  

DWS is calculated using the latest Medicare billing statistics to determine the level of medical service provision in each area.  A map of DWS for GPs and other non-specialists can be accessed at www.doctorconnect.gov.au/

Amendments made to the Act by the Health Insurance Amendment (New Zealand Overseas Trained Doctors) Act 2010.

On 1 April 2010 the Act was amended by the Health Insurance Amendment (New Zealand Overseas Trained Doctors) Act 2010.

Prior to these amendments, section 19AB of the Act restricted the provision of Medicare-eligible services by OTDs (which at that time meant a person whose primary qualifications were not obtained from a medical school in Australia) and ‘former overseas medical students’.  A ‘former overseas medical student’ was a person whose primary medical qualification was obtained from a medical school in Australia but who was not a permanent resident or Australian citizen at the time he or she first enrolled. 

The term ‘former overseas medical student’ was commonly misunderstood and resulted in significant confusion among medical practitioners.  The Health Insurance Amendment (New Zealand Overseas Trained Doctors) Act 2010 removed this confusion by amending section 19AB of the Act to refer to a ‘foreign graduate of an accredited medical school’.  A foreign graduate of an accredited medical school is a medical practitioner whose primary medical training was undertaken at an Australian Medical Council accredited medical school in Australia or New Zealand, and who was not a permanent resident or citizen of Australia or New Zealand at the time of commencing training.

The Guidelines replace reference to ‘former overseas medical students’ with reference to ‘foreign graduates of an accredited medical school’.

Updated drafting

The Previous Guidelines contained material such as a summarised history of section 19AB of the Act and extract of that section, an explanation of the operation of section 19AA of the Act and an explanation of an applicant’s appealing rights under section 19AC of the Act.  To improve the drafting of the Guidelines and better reflect their status as a legislative instrument, these have been omitted from these Guidelines.

Commencement

The Guidelines commence on 3 September 2012 

Documents Incorporated by Reference

The following documents are incorporated within the Guidelines by reference;

• Health Insurance Regulations 1975; and
• Migration Regulations 1994.

Consultation

The Department has not formally consulted external stakeholders during the process of revising the Section 19AB Guidelines. Several key stakeholders were consulted when amending the operation of section 19AB of the Act through the Health Insurance Amendment (New Zealand Overseas Trained Doctors) Act 2010. The revisions to the Guidelines are also based on information regarding the considerations for the Department when granting a section 19AB exemption, which has been available on the Department’s website and the DoctorConnect website (www.doctorconnect.gov.au/) since 2006.  

While revising the Section 19AB Guidelines, the Department has also considered several submissions that have been provided to support the House of Representatives Standing Committee on Health and Ageing’s inquiry into registration processes and support for overseas trained doctors and the current Senate Committee on Community Affairs’ inquiry into the factors affecting the supply of health services and medical professionals in rural areas.

Several of the new provisions within the revised Section 19AB Guidelines directly address concerns relating to access to medical practitioners within rural areas as provided within submissions to the Senate Inquiry.  These provisions are the after-hours provisions, the locum provisions and the replacement provisions.

The issue of access to after-hours services within rural and remote areas has been raised in multiple submissions to the Senate Inquiry, including submissions from the Rural Doctors Association of Australia and the Victorian Healthcare Association.  The revised Section 19AB Guidelines address this issue of access by providing that the after-hours period is considered to be a DWS across Australia for all medical specialities. The revised Section 19AB Guidelines also provide a clear definition of the after-hours period.

In a submission to the Senate inquiry, the Australian Medical Association advised that medical practitioners providing locum services are of significant value to communities located within rural and remote areas of Australia. The revised Section 19AB Guidelines include a provision that allows OTDs and FGAMS to be granted section 19AB exemptions for the purpose of providing locum services in recognition of the value of providing

short-term relief to principal medical practitioners of all medical specialties across Australia.  The revised Section 19AB Guidelines provide that locum exemptions may be granted in cases where an area is not a DWS, to ensure all communities may benefit from locum medical practitioners.

Several submissions to the Senate Inquiry have raised the issue of the need to retain medical practitioners within rural and remote areas to ensure continuity of access to medical services for communities located within these areas. 

While the Section 19AB Guidelines are not intended to provide direct incentives for retaining medical practitioners, a provision has been included that allows the Department to approve the replacement of a restricted OTD or FGAMS.  This replacement provision provides scope to allow the Department to make decisions in respect of section 19AB(3) exemption applications that give consideration to continuity of the level of medical service provisions within a local area.

The revised Section 19AB Guidelines also provide updated information relating to the concept of DWS and the methodology and information sources that are used to identify DWS areas for general practice and the other medical specialties.

The inclusion of updated DWS information addresses a request for greater transparency and more comprehensive information regarding DWS as provided within multiple submissions to both inquiries. These include:

• submissions from the National Rural Health Alliance, Rural Health West and the Association of Medical Recruiters of Australia and New Zealand to the House of Representatives; and
• submissions from the Royal Australian College of General Practitioners and the Victorian Government to the Senate Committee.

The revised Section 19AB Guidelines respond to these requests by clarifying the concept of DWS and providing more detailed advice regarding the information sources and methodology for determining DWS for the speciality of general practice and the other medical specialties.

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

            ATTACHMENT

Health Insurance (Section 19AB Exemptions) Guidelines 2012

Part 1 Preliminary

Section 1  Name of Guidelines

Section 1 provides that the name of the instrument is the Health Insurance (Section 19AB Exemptions) Guidelines 2012 (the Guidelines).

Section 2 Commencement

Section 2 provides that the Guidelines commence on 3 September 2012.

Section 3 Object

Section 3 provides that the objective of the Guidelines is to provide a more equitable distribution of medical services in Australia by increasing the supply of medical practitioners in areas of most need, specifically regional, rural and remote areas.  

Section 4 Revocation

Section 4 provides that the Health Insurance Act 19AB Guidelines (the Previous Guidelines) are revoked. 

Section 5 Definitions and interpretation

Definitions

Subsection 5(1) defines terms used in the Guidelines.  The Guidelines include several new or amended definitions from those appearing in the Previous Guidelines.  These definitions provide more clarity in relation to terms used within the Guidelines.

Aboriginal or Torres Strait Islander specific primary health care service - a definition for an ‘Aboriginal or Torres Strait Islander specific primary health care service’ has been included.  These are health services that are funded principally to provide medical services to a predominantly Aboriginal and Torres Strait Islander population, and which also hold an exemption under subsection 19(2) of the Act.  This definition is relevant for section 7 of the Guidelines.

District of workforce shortage - the definition of ‘district of workforce shortage’ (DWS) has been altered from that appearing in the Previous Guidelines.  However, this is the result of a clarification of the drafting of the Guidelines rather than an alteration in the Department’s method of calculating DWS.

As was previously the case, separate DWSs are determined in respect of GPs and other medical practitioners who are not specialists for Medicare purposes (non-specialists) and for specialists in a particular specialty.  For the purposes of the Act (and accordingly these Guidelines), medical practitioners who are recognised by the Medical Board of Australia as specialists in the specialty of general practice are not classed as ‘specialists’ for the purposes of Medicare.  Instead they are included in the separate class of ‘general practitioner’.

For GPs and other non-specialists, a DWS is a geographical area in which the number of full time equivalent GPs and other non-specialists is less than the national average for that class of practitioner.

For medical practitioners who are specialists in a particular specialty, a DWS is a geographical area in which the number of full time equivalent specialists in that specialty is less than the national average.  An area that is classified under the Australian Geographical Classification System – Remoteness Areas (ASGC-RA) as outer regional (RA-3), Rural (RA-4) or Remote (RA-5) is also a DWS in respect of specialists.

Notes to the definition of ‘district of workforce shortage’ indicate that:

• the Department calculates DWSs using Medicare billing data and also estimated resident population data based on 2004 data from the Australian Bureau of Statistics; and
• a map of Australian DWSs for GPs and other non-specialists can be accessed at www.doctorconnect.gov.au/

General skilled migration visa, migration occupation in demand, relevant assessing authority and skilled occupation - each of these terms is specified as having the same meaning as under the Migration Regulations 1994.  The terms are relevant for the consideration of the granting of an exemption to an applicant who is the spouse of a person who has migrated to Australia to work in an occupation in which Australia is suffering a skills shortage (see section 8). 

• ‘General skilled migration visas’ are currently Subclass 175, 176, 475, 476, 485, 487, 885, 886 or 887 visas;

• a ‘skilled occupation’ is an occupation specified in an instrument made by the Minister for Immigration and Citizenship under the Migration Regulations 1994.  Lists of skilled occupations are available from www.immi.gov.au/skilled;
• a ‘migration occupation in demand’ is a skilled occupation specified in an instrument made by the Minister for Immigration and Citizenship under the Migration Regulations 1994; and
• a ‘relevant assessing authority’ is a person or body specified in an instrument made by the Minister for Immigration and Citizenship who undertakes skills assessment for migration purposes.

Service location - A new definition of ‘service location’ is included, being a location to which an application for an exemption relates.  Examples of service locations are medical practices, hospitals or hospital departments or community health centres.

Interpretation

Subsection 5(2) clarifies that a service location is in a DWS for a particular type of practitioner if:

• for a GP or other non-specialist, the location is in a DWS for GPs and other non-specialists; and
• for a specialist in a particular specialty, the location is in a DWS for specialists in that specialty.

Subsection 5(3) provides that a reference throughout the Guidelines to a specialist includes a reference to a consultant physician.  This is to increase readability of the Guidelines.

Subsection 5(4) provides references throughout the Guidelines to ‘the type of practitioner to which an application relates’ means a reference to either specialists in a particular specialty, or to GPs and other non-specialists.

The Note to section 5 indicates to readers that certain terms used in the Guidelines take their definition from the Health Insurance Act 1973.  These include ‘general practitioner’, ‘specialist’ and ‘consultant physician’.

Section 6 Considerations for exemptions – general

Section 6 sets out the matters the Minister for Health is to take into consideration when deciding on most applications for exemptions.  

Subsection 6(1) provides that the section is subject to sections 7 – 10 of the Guidelines.  Those sections set out considerations that are to apply in particular circumstances, for example where the applicant will be providing short-term locum services or will be providing services at an Aboriginal and Torres Strait Islander specific primary health care service.

Subsection 6(2) provides that the primary consideration for making decisions on applications for exemptions is whether the location for which the exemption is sought is in a DWS for the type of medical practitioner applying for the exemption (namely a specialist in a particular specialty, or a GP or other non-specialist).

Subsection 6(3) provides that the following may also be considered when assessing an application for an exemption under this section:

• whether the applicant’s registration as a medical practitioner is subject to any conditions (paragraph 6(3)(a));
• whether the applicant’s visa allows them to practice medicine or undertake clinical training as a medical practitioner (paragraph 6(3)(b));
• whether the applicant has entered into, or commenced negotiations to enter into, an agreement to provide professional services at the relevant location (paragraph 6(3)(c));
• whether the applicant is seeking to replace another OTD or FGAMS who practised privately at the location and held an exemption for the location, and whose Medicare provider number for the location has been cancelled.  The other OTD or FGAMS must have provided services at the location within the last 12 months (paragraph 6(3)(d));
• whether the applicant is seeking to provide private medical services at a location during the after-hours period (paragraph 6(3)(e));
• if the location to which the application relates is not in a DWS in respect of the type of practitioner applying for an exemption, whether the applicant commenced negotiations to provide services at the practice location while the location was considered to be a DWS (paragraph 6(3)(f); and
• any other matters the Minister considers relevant (paragraph 6(3)(g)).

Subsection 6(4) provides that in section 6 a reference to a person who held an exemption for the location includes a reference to a person to whom a class exemption applied.  This subsection is for the avoidance of doubt.

Section 7 – Considerations for exemption – provision of services at Commonwealth funded Aboriginal and Torres Strait Islander primary health care service

Subsection 7(1) provides that section 7 applies where the applicant for an exemption will be providing, or has commenced negotiations to provide, services at an Aboriginal and Torres Strait Islander specific primary health care service.  These are primary health care organisations that predominantly service Aboriginal and Torres Strait Islander clients.  A direction under subsection 19(2) of the Act must be in force in respect of the organisation (see subsection 5(1) of the Guidelines).

Where section 7 applies, subsection 7(2) provides that application for exemptions may not be assessed according to whether the Aboriginal and Torres Strait Islander specific primary health care service is in a DWS for the type of medical practitioner seeking the exemption.  The subsection also provides that the Minister may take into account those matters set out in paragraphs 6(3)(a)-(e) of the Guidelines and any other matters he or she considers relevant.

This section aims to increase the number of medical practitioners providing private services to Aboriginal and Torres Strait Islander populations, even where those populations are located in major cities or are not otherwise located in areas of medical workforce shortage.

Section 8 – Considerations for exemption – spouses

Subsection 8(1) provides that the section applies where the applicant is the spouse of:

• a medical practitioner who is not prevented from providing medicare-eligible services by section 19AB of the Act – in other words a medical practitioner who is not an OTD or FGAMS, or an OTD or FGAMS who has a current section 19AB exemption or who falls into one of the classes to which the prohibition on payments does not apply, for example OTDs or FGAMS who first became medical practitioners before 1 January 1997; or
• a person who:

-          holds a General skilled migration visa following assessment by a relevant assessing authority as having a skilled occupation or a migration occupation in demand; 

-          migrated to Australia within the last 10 years with the intention of working in that occupation; and

-          is currently employed in, volunteers in or is undertaking training in that occupation.

In all cases the spouse of the applicant must ordinarily reside in Australia.

Where this section applies, subsection 8(2) provides that when assessing an application for an exemption, whether the location to which the application relates is in a DWS for the relevant type of medical practitioner is not to be taken into account.  The Minister may take into account the matters set out in paragraphs 6(3)(a)-(e) of the Guidelines and any other matters he or she considers relevant.

Section 9 – Considerations for exemption – provision of locum services

Subsection 9(1) provides that section 9 applies where the applicant for an exemption has entered into, or has started negotiations to enter into, an agreement to provide locum services at a particular location for a maximum period of six months. 

Where a locum arrangement or proposed locum arrangement would be for more than six months, the general considerations at section 6 of the Guidelines would apply (unless one of the other ‘exceptions’ to section 6 such as provision of services at an Aboriginal and Torres Strait Islander primary health care service applies).

Subsection 9(2) provides that in deciding whether to grant an exemption to such an applicant, whether the location is in a DWS for the relevant type of medical practitioner is not to be taken into account.

Subsection 9(2) also provides that the Minister may take into account the matters set out in paragraphs 6(3)(a) – (e) of the Guidelines and any other matters the Minister considers relevant.

Section 10 – Considerations for class exemptions

Subsection 19AB(3) of the Act provides that an exemption may be granted to a class of persons.

Subsection 10(1) of the Guidelines provides that section 10 applies to decisions in respect of exemptions for a class of persons.  In these circumstances, subsection 10(2) provides that the Minister is not required to consider whether members of the class will be providing services within a DWS, and can take into account any matters he or she considers relevant.

Section 11 – Conditions

Subsection 19AB(4) of the Act provides that the Minister may make exemptions subject to any conditions he or she thinks fit.

Subsection 11(1) provides that except in special circumstances, all exemptions must be subject to the condition that they will only be applicable to a particular practice location, for example a particular medical practice, health centre or hospital.  However, subsection 11(2) provides that this does not apply to exemptions made in respect of a class of practitioners.

Subsection 11(3) provides that an exemption may be made subject to the condition that it only applies after hours.  ‘After hours’ is defined in subsection 5(1) of the Guidelines as all day Saturday, Sunday or public holidays and before 8:00 a.m. and after 6:00 p.m. on any other day.

Subsections 11(4) and (5) provide that the Minister is not limited in the conditions that he or she may place on an exemption by subsections 11(1) or 11(3), and that in making decisions about imposing conditions on an exemption the Minister may take into account any matters he or she considers relevant.

Section 12 – Period of Exemption

Subsection 12(1) provides that applications for exemptions cannot be backdated and may be time limited to cease on a date specified in the exemption instrument.  

Subsection 12(2) provides that where an exemption is granted to a person to provide locum services, the exemption must be specified to cease on a day no later than six months from the date of commencement of the exemption.

Section 13 – Delegation

Subsection 13(1) provides that the Minister may delegate some or all of his or her powers or functions under the Guidelines, other than the delegation power, to an officer. 

Subsection 13(2) provides that ‘officer’ has the same meaning as in subsection 131(4) of the Act, namely:

• an officer of the Department of Health and Ageing;
• a person performing the duties of an office in the Department of Health and Ageing;
• the Chief Executive Medicare; or
• an APS employee within the Department of Human Services.

Section 14 – Application

Section 14 provides that applications for exemptions made before the commencement of the Guidelines will continue to be assessed according to the Previous Guidelines. 

Statement of Compatibility with Human Rights

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

Health Insurance (Section 19AB Exemptions) Guidelines 2012

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 Section 19AB Guidelines

The Health Insurance Act 1973 (the Act) provides the conditions under which medical practitioners may provide medical services that are subsidised by Medicare benefits. Section 19AB of the Act restricts the eligibility of two cohorts of medical practitioners who were registered in Australia after 1 January 1997 to attract Medicare rebates for their private professional medical services. The two cohorts of medical practitioners who are subject to section 19AB of the Act are:

• overseas trained doctors (OTDs) – medical practitioners who did not obtain their primary medical training at an Australian Medical Council (AMC) accredited medical school in Australia or New Zealand; and
• foreign graduates of an accredited medical school (FGAMS) – medical practitioners who obtained their primary medical training at an AMC accredited medical school and who were not permanent residents or citizens of Australia or New Zealand at the time of commencing their medical training.

The restrictions that are applied to the above cohorts of medical practitioners under section 19AB of the Act remain in effect for a period of generally ten years from the date of the medical practitioner’s first Australian medical registration and are referred to as the ‘ten year moratorium requirement’.

Section 19AB(3) of the Act provides that the Minister for Health or their delegate may grant an exemption under section 19AB of the Act to allow individual or classes of OTDs or FGAMS to provide services that are subsidised by Medicare rebates prior to the completion of their ten year moratorium requirement.

Section 19AB(4B) provides that the Minister for Health must establish written guidelines that provide the considerations when assessing applications for exemptions under section 19AB of the Act.  The legislative Guidelines made under Section 19AB(4B) are referred to as the ‘Section 19AB Guidelines’. The Section 19AB Guidelines were introduced on

19 September 2001.

The Section 19AB Guidelines provide that the primary consideration for the Minister for Health or their delegate when assessing an application for an exemption under section 19AB(3) of the Act is whether the applicant medical practitioner is seeking to practise within a district of workforce shortage (DWS) for their medical specialty.

A DWS is an area with a lower than average level of access to privately practising medical practitioners. The section 19AB Guidelines provide that a medical practitioner who belongs to either the OTD or FGAMS cohort is likely to be granted an exemption under 19AB(3) of the Act if they practise within a DWS area.

The provisions contained within the Section 19AB Guidelines provide a mechanism for the Australian Government to achieve a targeted increase in the availability of Commonwealth government subsidised medical services in those areas most in need of such services, particularly in rural, regional and remote areas. 

The purpose of the Section 19AB Guidelines 2012 is to set out the full range of considerations for the Minister for Health or their delegate when assessing applications for exemptions under section 19AB(3) of the Act.  The Section 19AB Guidelines also revoke the previous Section 19AB Guidelines 2001.

Human rights implications

Right to Health

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 International Covenant on Economic Social and Cultural Rights.  Whilst the UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

The Act underpins the Medicare scheme by providing for payments by way of medical benefits and for hospital services.

Section 19AB of the Act allows the Government to ensure a more equitable distribution of the Australian medical workforce and thereby promotes the right to health for all Australians. The Section 19AB Guidelines 2012 promote the right to health for all Australians by ensuring that the intention of section 19AB of the Act to provide a more equitable distribution of the Australian medical workforce is realised.

The Section 19AB Guidelines 2012 allow the Australian Government to achieve this workforce distribution objective by establishing the requirement for medical practitioners who belong to the OTD and FGAMS cohorts to practise within DWS areas in order to be eligible to provide medical services that are subsidised by Medicare benefits.

The Section 19AB Guidelines 2012 also recognise that Aboriginal and/or Torres Strait Islander peoples can be marginalised in their access to health care irrespective of whether they live in a DWS. The Guidelines provide that DWS is not to be taken into account where the applicant is to provide services at an Aboriginal or Torres Strait Islander specific health service that receives funding from the Office for Aboriginal and Torres Strait Islander Health (OATSIH).

The Section 19AB Guidelines 2012 do not include any clause that would prevent patients in areas that are not considered to be DWS from accessing a high standard of health care by receiving government subsidised medical services through the Medicare system. Communities that are located within non-DWS areas have better access to government subsidised medical services when compared to other areas of Australia.

The Section 19AB Guidelines 2012 improve the ability of all Australians to maximise their enjoyment of their right to health.  There is no incompatibility with the right engaged because the Section 19AB Guidelines serve a legitimate objective that is reasonable, necessary and proportionate in the circumstances.   

Right to Social Security

The right to social security is contained in Article 9 of the International Covenant on Economic Social and Cultural Rights.  The right 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. 

Medicare is a social security system that enables the Australian Government to ensure access to affordable health services to all Australians.  The operation of section 19AB of the Act ensures more equitable access to Medicare as a social security system and therefore promotes a minimum essential level of benefits for all Australians.

The Section 19AB Guidelines 2012 ensure that section 19AB of the Act is effective in ensuring equitable access to medical services that are subsidised by Medicare rebates for all Australians. The Section 19AB Guidelines do not prevent patients in areas that are not considered to be DWS from enjoying a high standard of social security by receiving government subsidised medical services through the Medicare system. Communities that are located within non-DWS areas have better access to government subsidised medical services when compared to other areas of Australia.

The Section 19AB Guidelines 2012 enable the Australian Government to support the provision of Medicare subsidised medical services within areas where they are most needed, particularly regional, rural and remote areas. 

There is no incompatibility with the right engaged because the Section 19AB Guidelines 2012 serve a legitimate objective that is reasonable, necessary and proportionate in the circumstances.   

Right to Freedom of Movement

The right to freedom of movement is contained in articles 12 and 13 of the International Covenant on Civil and Political Rights. The right to freedom of movement includes the right to move freely within a country for persons who are lawfully within a country. The right to freedom of movement also includes a right to enter a country for persons who are citizens of that country and the right to leave any country.

Section 19AB of the Act places a restriction on OTDs and FGAMS in terms of access to a Medicare provider number for the purpose of accessing Medicare rebates for their professional services.

The effect of section 19AB of the Act and the Section 19AB Guidelines 2012 is not that an OTD or FGAMS cannot practice medicine anywhere other than in a DWS. Subject to any restrictions under an OTD's or FGAMS' medical registration, which are not imposed under the Act or the Section 19AB Guidelines, an OTD or FGAMS is free to practise medicine at a location of their choice.

The general requirement in the Guidelines that DWS is the prime consideration when assessing an exemption application means that an OTD or FGAMS who chooses to practise medicine in a non-DWS area may not be able to provide Medicare-eligible services to patients.  An OTD or FGAMS can provide professional medical services that are not subsidised by the Medicare scheme irrespective of whether they hold an exemption under section 19AB(3) of the Act

No provision within the Section 19AB Guidelines 2012 forces OTDs and FGAMS to provide medical services in a DWS or any particular area in Australia. The Section 19AB Guidelines 2012 do not require medical practitioners who meet the definition of an OTD or FGAMS to service a particular group of patients or to provide a particular set of medical services within their medical specialty.

Section 19AB of the Act and the Section 19AB Guidelines 2012 also do not place any restriction on ability of OTDs or FGAMS to enter or leave Australia.

The right to freedom of movement is not engaged by the Section 19AB Guidelines 2012.  The Section 19AB Guidelines 2012 do not contain any clause that contradicts the right to freedom of movement.

Rights of Equality and Non-Discrimination

The rights of equality and non-discrimination are contained in articles 2, 16 and 26 of the International Covenant on Civil and Political Rights.  The rights of equality and non-discrimination provides that laws, policies and programs should not be discriminatory and also that public authorities should not apply or enforce laws, policies or programs in a discriminatory or arbitrary manner.

Section 19AB of the Act places a restriction in the eligibility of OTDs and FGAMS to obtain a Medicare provider number. The restrictions applied under section 19AB of the Act are applied according to the location at which a medical practitioner obtained their primary medical training (Bachelor of Medicine/Bachelor of Surgery equivalent).

The ten year moratorium requirement under Section 19AB of the Act is not applied to medical practitioners on the basis of race, colour, descent, nationality or sexual orientation.

The ten year moratorium requirement is applied uniformly to all medical practitioners who belong to the OTDs and FGAMS cohorts. Australian citizens, permanent residents and temporary residents who fall into these cohorts are all subject to the same restrictions under the ten year moratorium requirement.

The Section 19AB Guidelines 2012 do not engage the rights of equality and non-discrimination. The Section 19AB Guidelines 2012 do not contain any clause that contradicts the rights of equity and non-discrimination.

Conclusion

The Section 19AB Guidelines 2012 are compatible with human rights because the provisions contained within the Guidelines advance the protection of human rights by enabling limited resources (Medicare benefits) to be spent more effectively and for the benefit of all Australians. To the extent that the Section 19AB Guidelines 2012 may limit human rights, those limitations are reasonable, necessary and proportionate. 

Abha Bedi
Director
Health Workforce Capacity Branch
Health Workforce Division
Australian Government Department of Health and Ageing