EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C General Medical Services – Proton-Photon Comparison Plan) Determination (No.2) 2025
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 GMST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the GMST.
The GMST is set out in the regulations made under subsection 4(1) of the Act. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulations 2021.
Subsection 12(1A) of the Legislation Act 2003 provides that a registered legislative instrument may have a commencement date prior to the date of registration (retrospective commencement). Subsection 12(2) has the effect of preventing retrospective application of a legislative instrument if it disadvantages a person or imposes a liability on a person (other than the Commonwealth or an authority of the Commonwealth) for actions taken before the instrument's registration. Subsection 12(4) of the Legislation Act 2003 provides that the effect of subsections (1A) or (2) in relation to an instrument is subject to any contrary provision in an Act.
Subsection 3C(2) of the Act expressly excludes subsection 12(2) of the Legislation Act 2003 from applying to determinations made under subsection 3C(1) of the Act. However, consistent with the intent of the Legislation Act 2003, this instrument will not impose a liability or disadvantage a person other than the Commonwealth.
Purpose
The purpose of the Health Insurance (Section 3C General Medical Services – Proton-Photon Comparison Plan) Determination (No.2) 2025 (the Principal Determination) is to repeal and remake the Health Insurance (Section 3C General Medical Services - Proton-Photon Comparison Plan) Determination 2025 (the Previous Determination).
The Principal Determination will correct an error in the commencement table which prevented the instrument from taking legal effect from 1 July 2024. The Principal Determination will introduce new Medicare Benefits Service (MBS) item 15990 to allow patients to access proton-photon comparative planning services for proton beam therapy (PBT) to assess for eligibility for Medical Treatment Overseas Program (MTOP). The proton-photon comparative planning services will be available in select locations in Australia with retrospective application from 1 July 2024.
PBT is currently a treatment that is not available in Australia. Cancer patients who wish to access PBT can apply for funding from the Government through the MTOP. Applications for accessing PBT through MTOP require comparative proton-photon planning to assess eligibility for the treatment. The Principal Determination will benefit cancer patients by increasing access to PBT comparative planning services in Australia to determine whether a patient may be better treated by standard photon radiation therapy in Australia, or by PBT overseas supported by MTOP.
Approval to list new item 15990 was granted by the Minister for Health and Ageing through the authority to approve certain Medical Services Advisory Committee recommendations outside of a budget process.
Consultation
The Department of Health, Disability and Ageing consulted extensively with the peak professional body the Royal Australian and New Zealand College of Radiologists (RANZCR), including the RANZCR Particle Therapy Working Group (PTWG). RANZCR and the PTWG are supportive of the change.
The Principal Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Principal Determination is taken to have commenced on 1 July 2024.
Details of the Principal 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 General Medical Services – Proton-Photon Comparison Plan) Determination (No.2) 2025
Section 1 – Name
Section 1 provides for this instrument to be referred to as the Health Insurance (Section 3C General Medical Services – Proton-Photon Comparison Plan) Determination (No.2) 2025.
Section 2 – Commencement
Section 2 provides that the Principal Determination is taken to have commenced on 1 July 2024.
Section 3 – Authority
Section 3 provides that the Principal Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Definitions
Section 4 defines terms used in the Principal Determination.
Section 5 – Treatment of relevant services
Section 5 provides that a clinically relevant service provided in accordance with the 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 both a professional service and a general medical service and as if there were an item specified in the GMST for the service.
Section 6 – Indexation
Section 6 applies annual indexation to the schedule fee for new MBS item 15990. This will increase the Medicare benefit paid to patients for these services, which is calculated as a percentage of the fee per section 10 of the Act. Indexation will be applied by 2.4 per cent for item 15990 listed in Schedule 1 of the Principal Instrument.
Section 7 – Schedules
Section 7 of the Principal Determination provides that each instrument that is specified in a Schedule to the Principal Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to the Principal Determination has effect according to its terms.
Schedule 1 – Relevant services
Schedule 1 specifies the service and associated fee for item 15990. Item 15900 will be inserted into new Subgroup 15 for Proton Beam Therapy in existing Group T2 for Radiation Oncology services.
Schedule 2 – Repeals
Item 1 repeals the Health Insurance (Section 3C General Medical Services – Proton-Photon Comparison Plan) Determination 2025 (the Previous Determination).
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 – Proton-Photon Comparison Plan) Determination (No.2) 2025
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 General Medical Services – Proton-Photon Comparison Plan) Determination (No.2) 2025 (the Principal Determination) is to repeal and remake the Health Insurance (Section 3C General Medical Services - Proton-Photon Comparison Plan) Determination 2025 (the Previous Determination). This Principal Determination will correct an error in the commencement table which prevented the instrument from taking legal effect from 1 July 2024. The Principal Determination will introduce new Medicare Benefits Service (MBS) item 15990 to allow patients to access proton-photon comparative planning services for proton beam therapy (PBT) to assess their eligibility for the Medical Treatment Overseas Program (MTOP). The proton-photon comparative planning services will be available in select locations in Australia with retrospective application from 1 July 2024.
PBT is currently a treatment that is not available in Australia. Cancer patients who wish to access PBT can apply for funding from the Government through the MTOP. Applications for accessing PBT through MTOP require comparative proton-photon planning to assess eligibility for the treatment. The Principal Determination will benefit cancer patients by increasing access to PBT comparative planning services in Australia to determine whether a patient may be better treated by standard photon radiation therapy in Australia, or by PBT overseas supported by MTOP.
Approval to list new item 15990 was granted by the Minister for Health and Ageing through the authority to approve certain Medical Services Advisory Committee recommendations outside of a budget process.
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 advances the rights to health and social security and maintains the right of equality and non-discrimination by introducing access to a PBT comparative planning service for eligible patients through a subsidised service on the Medicare Benefits Schedule.
Conclusion
This instrument is compatible with human rights as it advances 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, Disability and Ageing