EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Subsection 3(5) General Practitioner Post-Operative Treatment) Direction 2017
Subsection 3(5) of the Health Insurance Act 1973 (the Act) provides that a professional service that is not expressed to relate to a professional attendance by a practitioner shall be deemed to include all professional attendances necessary for the purposes of post-operative treatment of the person who received the professional service, unless the Minister directs otherwise.
Purpose
Subsection 3(5) of the Act generally operates so that a Medicare benefit is not payable for a person who has received a service that is not a professional attendance service, and subsequently receives a professional attendance service that is necessary for post-operative treatment purposes related to the initial service. The period during which this restriction typically applies is known as the aftercare period.
The Government’s response to the Medicare Benefit Schedule (MBS) Review Taskforce’s recommendations was to remove the restriction for non-referred General Practitioner (GP) professional attendances in the aftercare period. From 1 November 2017 this restriction will be removed so that a Medicare benefit is payable when a GP or medical practitioner practising in general practice (who is not a specialist or consultant physician) provides a professional attendance of this kind. However, subsection 3(5) will still apply when the follow-up care is provided by the medical practitioner who performed the procedure.
This will improve access to post-operative care for patients who are not able to return to the original medical practitioner (usually a specialist) to receive post-operative care.
Consultation
The proposed changes which are given effect in the Direction were released for public comment prior to finalisation of the recommendations to Government. This was undertaken through the public consultation process during consideration by the MBS Review Taskforce.
Details of the Direction are set out in the Attachment.
The Direction commences on 1 November 2017.
The Direction is a legislative instrument for the purposes of the Legislation Act 2003.
Authority: Subsection 3(5) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Subsection 3(5) General Practitioner Post-Operative Treatment) Direction 2017.
Section 1 – Name of Direction
Section 1 provides for the Direction to be referred to as the Health Insurance (Subsection 3(5) General Practitioner Post-Operative Treatment) Direction 2017.
Section 2 – Commencement
Section 2 provides that the Direction commences on 1 November 2017.
Section 3 – Authority
Section 3 provides that the Direction is made under subsection 3(5) of the Health Insurance Act 1973.
Section 4 – Interpretation
Section 4 defines terms used in the Direction.
Section 5 – Direction
Section 5 provides that certain professional services that would otherwise be deemed by subsection 3(5) of the Act to include any necessary post-operative professional attendance services do not include necessary post-operative professional attendance services, where those services are rendered by a medical practitioner practising in general practice who is not a specialist or consultant physician and who did not render the initial service.
Subsection 5(1) provides that, subject to subsection 5(2), a professional service of the kind referred to in subsection 3(5) of the Act does not include a professional service that is necessary for the post-operative treatment of the person to whom the service was rendered, if that professional service is rendered by a medical practitioner practising in general practice. This includes general practitioners, but does not include specialists or consultant physicians.
Subsection 5(2) provides that subsection 5(1) does not apply where the initial service and the post-operative professional attendance service are both rendered by the same practitioner.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Subsection 3(5) General Practitioner Post-Operative Treatment) Direction 2017
This Disallowable 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 Disallowable Legislative Instrument
Subsection 3(5) of the Act generally operates so that a Medicare benefit is not payable for a person who has received a service that is not a professional attendance service, and subsequently receives a professional attendance service that is necessary for post-operative treatment purposes. The period during which the restriction typically applies is known as the aftercare period. The Government agreed to the Medicare Benefit Schedule (MBS) Review Taskforce’s recommendation to remove this restriction for non-referred general practitioner (GP) professional attendances in the aftercare period.
The aftercare rule will still apply when the follow-up care is provided by the medical practitioner including GPs, who performed the procedure.
This will improve access to post-operative care for patients who are not able to return to the original medical practitioner (usually a specialist) to receive post-operative care.
Human rights implications
The Direction 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 Direction will advance rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it has a positive effect on human rights issues.
Natasha Ryan
Assistant Secretary
MBS Policy and Specialist Services Branch
Medical Benefits Division
Department of Health