EXPLANATORY STATEMENT
Issued by the Minister for Health and Aged Care
Health Insurance Act 1973
Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by legislative instrument, determine that a health service not specified in an item in the diagnostic imaging services table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table.
The diagnostic imaging services table is set out in the regulations made under section 4AA of the Act. The most recent version of the regulations is the Health Insurance (Diagnostic Imaging Services Table) Regulations (No. 2) 2020 (DIST).
This instrument relies on subsection 33(3) of the Acts Interpretation Act 1901 (AIA). Subsection 33(3) of the AIA provides that 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
The purpose of the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024 (the Repeal Determination) is to repeal the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020 (the Principal Determination).
Items for duplex scanning for erectile dysfunction (items 55282 and 55284) are provided by a specialist in diagnostic radiology, nuclear medicine, urology, general surgery (sub-specialising in vascular surgery) or a consultant physician in nuclear medicine. These items are prescribed in the DIST and will be unchanged by the Repeal Determination.
The Principal Determination lists two Medicare Benefit Schedule (MBS) items 55208 and 55211 for duplex scanning services for erectile dysfunction provided by a doctor who was not specialist or consultant physician in the specialities referred to above but had the experience to render duplex scanning services for erectile dysfunction. However the Principal Determination will be repealed as the Department of Health and Aged Care has been advised that that Dr Christopher McMahon has retired and is no longer practicing.
Consultation
Consultation was not undertaken for the remake of this instrument as it is machinery in nature.
The Repeal Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Repeal Determination commences on 1 January 2025.
Details of the Repeal Determination are set out in the Attachment.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024
Section 1 – Name
Section 1 provides for the Repeal Determination to be referred to as the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024 (the Repeal Determination).
Section 2 – Commencement
Section 2 provides for the Repeal Determination to commence on 1 January 2025.
Section 3 – Authority
Section 3 provides that the Repeal Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to this Repeal Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Repeal Determination has effect according to its terms.
Schedule 1 – Repeals
Schedule 1 repeals the whole of the Repeal of Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024
This 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 Determination
The purpose of the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Repeal Determination 2024 (the Repeal Determination) is to repeal the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020 (the Principal Determination).
Items for duplex scanning for erectile dysfunction (items 55282 and 55284) are provided by a specialist in diagnostic radiology, nuclear medicine, urology, general surgery (sub-specialising in vascular surgery) or a consultant physician in nuclear medicine. These items are prescribed in the Health Insurance (Diagnostic Imaging Services Table) Regulations (No. 2) 2020 and will be unchanged by the Repeal Determination.
The Principal Determination lists two Medicare Benefit Schedule (MBS) items 55208 and 55211 for duplex scanning services for erectile dysfunction provided by a doctor who was not specialist or consultant physician in the specialities referred to above but had the experience to render duplex scanning services for erectile dysfunction. However the Principal Determination will be repealed as the Department of Health and Aged Care has been advised that that Dr Christopher McMahon has retired and is no longer practicing.
Human rights implications
This instrument engages Articles 9 and 12 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 reports that the ‘highest attainable standard of health’ takes into account the country’s available resources. This 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 realisation of the highest attainable standard of health.
The Right to Social Security
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.
The Committee reports that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups previously entitled to them. However, it is legitimate for a Government to re-direct its limited resources in ways that it considers to be more effective at meeting the general health needs of all society, particularly the needs of the more disadvantaged members of society.
The right 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 (ICCPR). Article 26 of the ICCPR requires that all persons are equal before the law, are entitled without any discrimination to the equal protection of the law and in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Analysis
This instrument does not affect the rights to health and social security and the right of equality and non-discrimination. This is an administrative change as the sole provider of the items listed has retired and there is no change to the Medicare arrangements for patients or health providers under the ongoing items 55282 and 55284.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security and the right of equality and non-discrimination.
Mary Warner
Assistant Secretary
Diagnostic Imaging and Pathology Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health and Aged Care