EXPLANATORY STATEMENT
STATUTORY RULES 1983 NO. 285
ISSUED BY AUTHORITY OF THE MINISTER FOR HEALTH
HEALTH INSURANCE ACT 1973
HEALTH INSURANCE REGULATIONS (AMENDMENT)
Section 133 of the Health Insurance Act 1973 (‘the Act’) provides that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Schedule 1 to the Act contains a table of medical services and rules for the interpretation of the table. The table of medical services contains items which set out the description of each medical service, and the fee for the calculation of medical benefits applicable in each State in respect of the service.
Section 4 of the Act provides that the table of medical services, items or rules of interpretation in Schedule 1 to the Act may be varied or replaced by regulations, and that regulations replacing such a table may be amended by regulations. The Health Insurance (Variation of Fees and Medical Services) (No. 26) Regulations, as previously amended, prescribe a table under section 4 of the Act.
Section 9 of the Act provides that Commonwealth medical benefits shall be calculated by reference to fees for medical services set out in the table of medical services in Schedule 1 to the Act. The amount of medical benefit paid by a registered medical benefits organization under its basic medical benefits table in respect of a medical service is also, arising from the definition of ‘guaranteed medical benefit’ in sub-section 4(1) of the National Health Act 1953, based on the fees set out in the table. Following amendments by the Health Legislation Amendment Act 1983 (Act No. 53, Assented to on 1 October 1983), medicare benefits will be payable from 1 February 1984 in place of these other benefits and will also be calculated by reference to the table of medical services.
Section 10 of the Act provides that, subject to other requirements being satisfied, medical benefits are payable where medical expenses are incurred in respect of a “professional service”. A “professional service” is defined in sub-section 3(1) of the Act. Arising from paragraph (a) of that definition, included in the services constituting a “professional service”, is a medical service to which an item in the table of medical services relates, being a service rendered by or on behalf of a medical practitioner.
Problems of interpretation had been encountered with the words “on behalf of a medical practitioner” in the definition of a “professional service” where the description of the medical service in an item of the table of medical services does not specify further in this regard. The range of meaning, which could be given to these words could allow medical benefits to become payable where medical services, although legally rendered on behalf of a medical practitioner, involved little or no participation or proper supervision by a medical practitioner in the performance of procedures integral to the services. It was considered that, except in relation to certain simple miscellaneous procedures and to pathology services, which are subject to separate controls under the Act, this situation did not accord with accepted medical practice and lent itself to abuses of the medical benefits scheme.
A similar problem arose in respect of the word “attendance” where the description of medical service in an item of the table of medical services refers, without further qualification, to an “attendance” by a medical practitioner. Because the natural meaning of “attendance” is not precise, it could be argued that a patient has been attended by a medical practitioner who simply turns his attention to the patient but is not physically present
with the patient. This could occur where contact with the patient is by telephone or through an employee of the medical practitioner. It could also be argued that it is possible to “attend” two or more patients simultaneously.
The statutory rules amend the current table of medical services by the insertion of new rules of interpretation to clarify the meaning of “attendance”, and the circumstances in which a service described in an item of the table constitutes a medical service for the purposes of the definition of a “professional service”. The new rules of interpretation have effect as follows:
(i) new rule 5A requires an “attendance”, in those items where this is appropriate, to be a physical attendance on not more than one person on the one occasion;
(ii) new rule 5B applies to medical services, with some exceptions, relating to items in the parts of the table of medical services dealing with obstetrics, anaesthetics, regional nerve or field blocks, assistance with anaesthetics, miscellaneous procedures, assistance at operations, and operations. These services are
required to be performed physically by a medical practitioner, and, except for 6 services relating to group treatment, performed on not more than one person on the one occasion. The exceptions referred to are those miscellaneous procedures covered by new rule 5D, attendances covered by new rule 5A, and services rendered by dental practitioners.
(iii) new rule 5C requires services covered by new rules 5A and 5B, except for those rendered by optometrists, to be rendered, whether or not essential assistance is provided in accordance with accepted professional practice, by a medical practitioner who is not rendering the service in the course of employment by the proprietor of a hospital.
(iv) new rule 5D applies to medical services relating to radiology, radiotherapy, computer axial tomography, nuclear medicine, and miscellaneous services which, it is considered, need not necessarily be rendered by a medical practitioner. These services
are required to be rendered by a medical practitioner, or by a person who is employed by, or who, in accordance with accepted medical practice, acts under the supervision of, a medical practitioner.
The statutory rules came into operation on 1 December 1983.