Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L01367 Rules Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Health and Aged Care

 

Medical Indemnity Act 2002

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010

 

Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022

 

Authority

 

Section 80 of the Medical Indemnity Act 2002 (the MI Act) provides that the Minister may make rules prescribing matters, which are required or permitted by the MI Act to be prescribed by the rules, or which are necessary or convenient to be prescribed for carrying out or giving effect to the MI Act.

 

Section 90 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010  (the MPICCS Act) provides that the Minister may make rules providing for matters required or permitted by the Act to be provided for in the rules or necessary or convenient to be provided for in order to carry out or give effect to the MPICCS Act.

 

Under subsection 33(3) of the Acts Interpretation Act 1901, 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 and operation

 

The Medical Indemnity Rules 2020 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020 (Medical and Midwife Indemnity Rules) were amended on 1 April 2020 by the Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) Rules 2020 (2020 Amending Instrument).

 

The 2020 Amending Instrument inserted a temporary exemption that applies to any medical practitioner or eligible midwife (midwives endorsed by the Nursing and Midwifery Board of Australia to prescribe scheduled medicines), within the meaning of subsection 4(1) of the MI Act and subsection 5(1) of the MPICCS Act, respectively, who is eligible for the Run-off Cover Scheme and who returns to private practice. This temporary exemption allows retired medical practitioners and eligible midwives to return to private practice to provide treatment during the COVID-19 pandemic without losing their eligibility for medical indemnity insurance under the Run-off Cover Scheme.

 

On 17 May 2022 the Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) Rules 2022 (2022 Amending Instrument No 1) extended the temporary Run-off Cover Scheme exemption from 17 May 2022 to 21 October 2022. The 2022 Amending Instrument No 1 was made to ensure the ongoing involvement of formerly retired private sector medical practitioners and eligible midwives in the COVID-19 Pandemic Response by allowing them to assist with workforce shortages without losing their entitlements under the Run-off Cover Scheme.

 

The previous cessation date of 21 October 2022 aligned the 2022 Amending Instrument No 1 with the Australian Health Practitioner Regulation Agency (AHPRA) pandemic sub-register, scheduled to end on 21 September 2022. An additional month coverage after the end of the AHPRA sub-register was included to allow time to extend the temporary exemption if the AHPRA sub-register was extended beyond 21 September 2022. 

 

The AHPRA pandemic sub-register was established to allow the health workforce to respond to the changing environment of the COVID-19 pandemic by ensuring there is an adequate number of registered healthcare professionals. The healthcare system has continued to sustain pressure during the COVID-19 pandemic and the sub-register has now been extended. This Rule extends the temporary exemption related to the Run-Off Cover Scheme to 31 December 2022.  Further consideration of the need for additional extensions will be considered prior to that date.

 

This change will ensure that private sector retired medical practitioners and eligible midwives can continue to assist with the COVID-19 Pandemic Response without losing their entitlements under the Run-off Cover Scheme.

 

Consultation

 

The policy of ensuring that returning practitioner do not lose their ROCS cover has been the subject of consultation with medical indemnity insurers.

 

Commencement

 

The 2022 Amending Instrument No 2 is a disallowable legislative instrument for the purposes of the Legislation Act 2003 and commences on the day after it is registered on the Federal Register of Legislation.

 

Details of the 2022 Amending Instrument No 2 are set out in Attachment A.

 

The 2022 Amending Instrument No 2 is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.


ATTACHMENT A

 

Details of the Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022

  

Section 1 – Name

 

Section 1 provides that the name of the instrument is the Medical and Midwife Indemnity Legislation Amendment (Eligible Run-Off Claims) (No 2) Rules 2022 (2022 Amending Instrument No 2).

 

Section 2 – Commencement

 

Section 2 provides that the 2022 Amending Instrument No 2 commences on the day after it is registered on the Federal Register of Legislation. 

 

Section 3 – Authority

 

Section 3 provides that the 2022 Amending Instrument No 2 is made under section 80 of the Medical Indemnity Act 2002 and section 90 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010.

 

Section 4 – Schedules

 

Section 4 provides that the Schedule sets out the specific terms of amendment of each instrument, and any other item in the Schedule has effect according to its terms.  

 

Schedule 1—Amendments

 

Medical Indemnity Rules 2020

Item 1 – Subsection 23(2)(b)

This item omits the words “21 September 2022” and substitutes “31 December 2022”.

Item 2 – Subsection 23(3)

This item omits the words “21 October 2022” and substitutes “31 December 2022”.

Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020

Item 3 – Subsection 11(2)

This item omits the words “21 September 2022” and substitutes “31 December 2022.

Item 4 – Subsections 11(3)

This item omits the words “21 October 2022” and substitutes “31 December 2022”.

 


ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022

This 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 Amending Rules

 

The Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022 (the 2022 Amending Instrument No 2) amends the Medical Indemnity Rules 2020 and the Midwife Professional Indemnity (Commonwealth Contribution Scheme Rules 2020 by further extending the temporary Run-off Cover Scheme exemption to 31 December 2022. The effect of the 2022 Amending Instrument No 2 is to allow the return and ongoing involvement of formerly retired medical practitioners and eligible midwives in private practice to assist with the COVID-19 Pandemic Response without losing their entitlements under the Run-off Cover Scheme.

 

This Instrument enables the health workforce to effectively respond to the changing environment of the COVID-19 pandemic by ensuring there is an adequate number of registered healthcare professionals. The healthcare system has come under sustained pressure during the COVID-19 pandemic. The 2022 Amending Instrument No 2 will ensure that private sector retired medical practitioners and eligible midwives can continue to assist with the COVID-19 Pandemic Response without losing their entitlements under the Run-off Cover Scheme.

Human rights implications

The 2022 Amending Instrument No 2 engages Article 12 of the International Covenant on Economic Social and Cultural Rights (the ICESCR), specifically the rights 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 instead 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 overarching purpose of the 2022 Amending Instrument No 2 is to facilitate the participation of medical practitioners and eligible midwives in the country’s COVID-19 Pandemic Response. This supports Article 12(2)(d) of the International Covenant on Economic, Social and Cultural Rights such that it creates “conditions which would assure to all medical service and medical attention in the event of sickness”.

Conclusion

This Legislative Instrument is compatible with human rights as it maintains the rights to health.

The Hon Mark Butler MP

Minister for Health and Aged Care

 

Overview

The Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022 were enacted to address the ongoing workforce shortages in the healthcare sector due to the COVID-19 pandemic. This legislative instrument was introduced by the Minister for Health and Aged Care and is designed to facilitate the return of retired medical practitioners and eligible midwives to private practice without compromising their eligibility for the Run-off Cover Scheme, which provides medical indemnity insurance. The purpose of these rules is to support the healthcare system's response to the pandemic by ensuring an adequate number of registered healthcare professionals are available to provide treatment. These amending rules extend the temporary exemption under the Medical Indemnity Act 2002 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 from 21 October 2022 to 31 December 2022. This extension aligns with the Australian Health Practitioner Regulation Agency's pandemic sub-register, which was extended to ensure a robust healthcare response. The 2022 Amending Instrument No 2 ensures that formerly retired private sector medical practitioners and eligible midwives can assist with the COVID-19 Pandemic Response while retaining their entitlements under the Run-off Cover Scheme.

Scope and Application

The Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022 (2022 Amending Instrument No 2) is an instrument made under the authority of the Minister for Health and Aged Care, pursuant to sections 80 of the Medical Indemnity Act 2002 and 90 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. The 2022 Amending Instrument No 2 further extends the temporary exemption from the Run-off Cover Scheme to 31 December 2022, allowing eligible retired medical practitioners and midwives to return to private practice in response to the COVID-19 pandemic without losing their entitlement to medical indemnity insurance under the Run-off Cover Scheme. This extension ensures that these healthcare professionals can continue to assist with the COVID-19 Pandemic Response, maintaining an adequate number of registered healthcare professionals in the workforce. The 2022 Amending Instrument No 2 is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as it supports the right to health by enabling these healthcare professionals to provide necessary medical services during the pandemic. This amending instrument applies to eligible retired medical practitioners and midwives within the meaning of subsection 4(1) of the MI Act and subsection 5(1) of the MPICCS Act, respectively. The geographic or jurisdictional reach of this Act is nationwide, as it concerns Commonwealth legislation. The temporary exemption provided by the 2022 Amending Instrument No 2 is effective until 31 December 2022, and any additional extensions will be considered prior to that date. The 2022 Amending Instrument No 2 commenced on the day after it was registered on the Federal Register of Legislation. The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003, and it amends the Medical Indemnity Rules 2020 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020 by extending the exemption from the Run-off Cover Scheme.

Key Provisions

The Medical and Midwife Indemnity Legislation Amendment (Eligible Run-off Claims) (No 2) Rules 2022 (the 2022 Amending Instrument No 2) amends the Medical Indemnity Rules 2020 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020. This amendment extends the temporary exemption from the Run-off Cover Scheme to 31 December 2022 for eligible medical practitioners and midwives who return to private practice. These provisions are detailed in the Schedule to the 2022 Amending Instrument No 2, which replaces the previous cessation dates of 21 September 2022 and 21 October 2022 with 31 December 2022 (Schedule, Item 1, Item 3, Item 2, and Item 4). The purpose of these amendments is to facilitate the ongoing involvement of formerly retired medical practitioners and eligible midwives in the COVID-19 pandemic response without them losing their entitlements under the Run-off Cover Scheme. The obligations imposed by these rules are primarily on the eligible medical practitioners and midwives who return to private practice during the COVID-19 pandemic. They must adhere to the terms and conditions of the Run-off Cover Scheme as amended by the 2022 Amending Instrument No 2. This includes maintaining their eligibility for the scheme by continuing to provide treatment within the specified timeframe. The rules also impose obligations on the Australian Health Practitioner Regulation Agency (AHPRA) and the relevant medical indemnity insurers to administer the scheme and ensure that the practitioners and midwives meet the eligibility criteria. The 2022 Amending Instrument No 2 does not introduce new offences, penalties, or consequences for breach. However, any breaches of the existing terms and conditions of the Run-off Cover Scheme would be subject to the penalties and consequences outlined in the Medical Indemnity Rules 2020 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Rules 2020. These may include fines, revocation of eligibility for the scheme, and other administrative or legal actions. The primary consequence for non-compliance would be the loss of eligibility for the Run-off Cover Scheme, which could have significant financial and professional implications for the affected practitioners and midwives. The 2022 Amending Instrument No 2 is made under the authority of section 80 of the Medical Indemnity Act 2002 and section 90 of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. It commences on the day after it is registered on the Federal Register of Legislation. The instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as detailed in the Statement of Compatibility in Attachment B. The overarching purpose of the 2022 Amending Instrument No 2 is to facilitate the participation of medical practitioners and eligible midwives in the country’s COVID-19 pandemic response, which supports the rights to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights.

Legal classification tags

Area of Law
Medical Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Regulatory Standards
Enforcement Powers
Catchwords
Run-off Cover Scheme
Eligible Run-off Claims

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.