EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Section 3C General Medical Services – Childhood Access to Anaesthesia) Determination 2019
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 general medical services table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table.
The Table is set out in the regulations made under subsection 4(1) of the Act, which is repealed and remade each year. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulations 2019 (the GMST).
Purpose
On 1 November 2019, changes where introduced through the Health Insurance Legislation Amendment (2019 Measures No. 1) Regulations 2019 which changed the age parameters in the descriptor for item 25015. The change to the item descriptor was introduced to better reflect the anaesthesia complexities of the patients of this age cohort.
The Health Insurance (Section 3C General Medical Services – Childhood Access to Anaesthesia) Determination 2019 (the Determination) will add a temporary item to the Medicare Benefits Schedule (MBS) to provide for the anaesthesia, perfusion or assistance in the management of anaesthesia for patients aged over three years old but under four years old. The service will move into the GMST from 1 May 2020.
The purpose of the Determination is to allow benefits to be available for patient’s aged over three years of age but under four years of age as their physical status results in an increase of complexity for the anaesthesia. To this effect, the amendments in the Schedule are taken to have commenced from 1 November 2019. Section 3C(2) of the Health Insurance Act 1973 allows for retrospective commencement as it excludes section 12(2) of the Legislation Act 2003 from applying to determinations made under section 3C(1) of the Health Insurance Act 1973.
Consultation
The Australian Society of Anaesthetists, the Australian Medical Association, and Private Healthcare Australia have been consulted on the introduction of this new item.
Details of the Determination are set out in the Attachment.
The Determination commences immediately after registration.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Section 3C General Medical Services – Childhood Access to Anaesthesia) Determination 2019
Section 1 – Name
Section 1 provides that the instrument is the Health Insurance (Section 3C General Medical Services – Childhood Access to Anaesthesia) Determination 2019.
Section 2 – Commencement
Section 2 provides that the instrument commences upon registration on the Federal Registrar of Legislation.
The item in the Schedule is taken to have commenced from 1 November 2019.
Section 3
Section 3 provides that the instrument ceases on midnight 30 April 2020. The service will move into the GMST from 1 May 2020.
Section 4 – Authority
Section 4 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 5 – Definitions
Section 5 provides definitions for the following items:
- Act;
- relevant provisions;
- relevant service; and
- Schedule.
Section 6 – Treatment of relevant service in the Schedule
Section 6 provides that a clinically relevant service provided in accordance with the Childhood Determination shall be treated, for relevant provisions of the Health Insurance Act 1973 and National Health Act 1953, and regulations made under those Acts, as if it were a professional service and as if there were an item in the general medical services table for the service.
Schedule – Relevant Service
The Schedule lists item 25012. The service provides a patient benefit for patients aged over three years and under four years that reflects the patient’s physical status and the resulting increase in complexity of the anaesthesia. These patients have a complex systemic disease or who “require immediate treatment without which there would be significant threat to life or body”.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C General Medical Services– Childhood Access to Anaesthesia) Determination 2019
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 Health Insurance (Section 3C General Medical Services – Childhood Access to Anaesthesia) Determination 2019 (the Determination) establishes a temporary item to the Medicare Benefits Schedule (MBS) to provide for the anaesthesia, perfusion or assistance in the management of anaesthesia for patients aged over three years of age but under four years of age. Medicare benefits will be available for this item on the day the Determination is registered for services performed from 1 November 2019.
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.
Analysis
This instrument will maintain rights to health and social security by ensuring patients aged over three years of age and under four years of age can have access to subsidised anaesthesia services on the Medicare Benefits Schedule.
Conclusion
This instrument is compatible with human rights as it has a positive effect on the right to health and the right to social security.
Andrew Simpson
Assistant Secretary
MBS Reviews Unit
Medical Benefits Division
Health Financing Group
Department of Health