National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3)

Administered by Department of Health, Disability and Ageing

Legislation au F2023L00390 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

NATIONAL HEALTH ACT 1953

NATIONAL HEALTH (EFFICIENT FUNDING OF CHEMOTHERAPY)
SPECIAL ARRANGEMENT AMENDMENT INSTRUMENT 2023 (No. 3)

PB 25 of 2023

Purpose

This is the National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3) (PB 25 of 2023) (this Instrument). The purpose of this Instrument, made under subsection 100(2) of the National Health Act 1953 (the Act), is to amend the National Health (Efficient Funding of Chemotherapy) Special Arrangement 2011 (PB 79 of 2011) (the Special Arrangement) to make changes relating to the Efficient Funding of Chemotherapy.

The Special Arrangement achieves greater efficiency in payment for the supply of injected or infused chemotherapy medicines (‘chemotherapy pharmaceutical benefits’) to eligible patients being treated for cancer, to reflect the 2010 Budget measure titled ‘Revised arrangements for the efficient funding of chemotherapy drugs’. The Special Arrangement also relates to the supply of medicines associated with the side-effects of cancer and cancer treatment (‘related pharmaceutical benefits’) at certain public hospitals.

This Instrument makes amendments to the Special Arrangement to reflect changes made to the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (PB 71 of 2012) which commences on the same day.

Schedule 1 to this Instrument provides for the alteration of circumstances in which a prescription may be written for the listed drug nivolumab under the Special Arrangement.

This change is summarised, by subject matter, in the Attachment.

Authority

Subsection 100(1) of the Act enables the Minister to make special arrangements for the supply of pharmaceutical benefits. Subsection 100(2) of the Act provides that the Minister may vary or revoke a special arrangement made under subsection 100(1).

Subsection 100(3) of the Act provides that Part VII of the Act, and instruments made for the purposes of Part VII, have effect subject to a special arrangement made under subsection 100(1).

Consultations

An ongoing and formal process of consultation in relation to matters relevant to the Special Arrangement includes the involvement of interested parties through the membership of the Pharmaceutical Benefits Advisory Committee (PBAC). The PBAC is an independent expert body established by section 100A of the Act which makes recommendations to the Minister about which drugs and medicinal preparations should be available as pharmaceutical benefits. Part VII of the Act only applies to drugs or medicinal preparations recommended by the PBAC. When recommending the listing of a medicine on the Pharmaceutical Benefits Scheme, the PBAC takes into account the medical conditions for which the medicine has been approved for use in Australia and its clinical effectiveness, safety and cost-effectiveness compared with other treatments.

PBAC members are appointed following nomination by prescribed organisations and associations from consumers, health economists, practising community pharmacists, general practitioners, clinical pharmacologists and specialists, with at least one member selected from each of these interests or professions. Remaining members are persons whom the Minister is satisfied have qualifications and experience in a field relevant to the functions of the PBAC, and that would enable them to contribute meaningfully to the deliberations of the PBAC.

Pharmaceutical companies are consulted throughout the process for additions and changes to listings on the Pharmaceutical Benefits Scheme (PBS), including consultation through the PBAC process and agreement to final listing details.

It was considered that further consultation for this Instrument was unnecessary due to the nature of the consultation that has already taken place.

General

A provision-by-provision description of this instrument is contained in the Attachment.

This Instrument commences on 1 April 2023.

This Instrument is a legislative instrument for the purposes of the Legislation Act 2003.


ATTACHMENT

PROVISION-BY-PROVISION DESCRIPTION OF NATIONAL HEALTH (EFFICIENT FUNDING OF CHEMOTHERAPY) SPECIAL ARRANGEMENT AMENDMENT INSTRUMENT 2023 (No. 3)

Section 1 Name of Instrument

This section provides the name of this Instrument as the National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3) and may also be cited as PB 25 of 2023.

Section 2 Commencement

This section provides that this Instrument commences on 1 April 2023.

Section 3 Authority

This section states that this instrument is made under subsection 100(2) of the National Health Act 1953.

Section 4  Schedules

Section 4 provides that each instrument that is specified in a Schedule to the Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.

Schedule 1  Amendments

The amendments in Schedule 1 involve the alteration of circumstances in which a prescription may be written for a pharmaceutical benefit available under Special Arrangement. This change is summarised below.

SUMMARY OF CHANGES TO THE EFFICIENT FUNDING OF
CHEMOTHERAPY PROGRAM MADE BY THIS INSTRUMENT

Alteration of Circumstances in Which a Prescription May be Written

Listed Drug

Nivolumab

 

Documents Incorporated by Reference

Listed Drug

Document incorporated

Document access

Nivolumab

Approved Product Information/Australian Product Information/TGA-approved Product Information.

The document is incorporated as in force on the day this Instrument takes effect, pursuant to paragraph 14(1)(b) of the Legislation Act 2003.

This document provides health professionals with a summary of the scientific information relevant to the safe and effective use of a prescription medicine.

TGA-approved Product Information is available for download for free from the TGA website: https://www.tga.gov.au/product-information-0

Nivolumab

World Health Organization (WHO)/Eastern Cooperative Oncology Group (ECOG) Performance Status/Performance Status Score.

The document is incorporated as in force on the day this Instrument takes effect, pursuant to paragraph 14(1)(b) of the Legislation Act 2003.

The WHO/ECOG performance status is a standard medical diagnostic tool used to measure how cancer impacts a patient’s daily living abilities, by evaluating a patient’s level of functioning in terms of their ability to care for themself, daily activity, and physical ability (walking, working, etc.).

The WHO/ECOG Performance Status is available for download for free from the ECOG-ACRIN Cancer Research Group website: https://ecog-acrin.org/resources/ecog-performance-status

Diagnostic tools referenced in the Instrument

The following standard medical diagnostic tools are referenced in the Instrument but are not intended to incorporate a document by reference.

Listed Drug

Diagnostic tool

Purpose and use in the Instrument

Reason this reference does not serve to incorporate a document

Nivolumab

Tumour Nodes Metastases (TNM) staging system

The TNM staging system was developed and is maintained by the Union for International Cancer Control. It is a way of categorising the extent of the patient’s cancer, such as the location in the body of the cancer, the size of the cancer and if it has spread. Knowing the stage of cancer helps the prescriber understand how serious the cancer is and the chances of survival so that treatment can be planned accordingly.

The TNM staging system is a globally recognised standard for classifying the extent of spread of cancer and therefore does not constitute a written record of information that must be referred to in order to determine whether statutory conditions have been met.

 


Statement of Compatibility with Human Rights

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

National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3)

(PB 25 of 2023)

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 Legislative Instrument

The purpose of this Legislative Instrument, made under subsection 100(2) of the National Health Act 1953 (the Act), is to amend the National Health (Efficient Funding of Chemotherapy) Special Arrangement 2011 (PB 79 of 2011) (the Special Arrangement) to make changes relating to the Efficient Funding of Chemotherapy.

The Special Arrangement achieves greater efficiency in payment for the supply of injected or infused chemotherapy medicines (‘chemotherapy pharmaceutical benefits’) to eligible patients being treated for cancer, to reflect the 2010 Budget measure titled ‘Revised arrangements for the efficient funding of chemotherapy drugs’. The Special Arrangement also relates to the supply of medicines associated with the side-effects of cancer and cancer treatment (‘related pharmaceutical benefits’) at certain public hospitals.

This Instrument provides for amendments to the Special Arrangement to ensure that the Special Arrangement accurately reflects changes to the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (the Listing Instrument), made under sections 84AF, 84AK, 85, 85A, 88 and 101 of the Act, which commences on the same day.

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 social security and 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 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.


Analysis

This Instrument advances the right to health and the right to social security by ensuring that the amendments to the Listing Instrument, that affect the pharmaceutical benefits that may be supplied under the Special Arrangement, are made concurrently. This Instrument provides for the alteration of circumstances in which a prescription may be written for the listed drug nivolumab under the Special Arrangement.

The Listing Instrument determines the pharmaceutical benefits that are on the Pharmaceutical Benefits Scheme (PBS) through declarations of drugs and medicinal preparations, and determinations of forms, manners of administration and brands. The PBS is a benefit scheme which assists with advancement of these human rights by providing for subsidised access by patients to medicines. The recommendatory role of the Pharmaceutical Benefits Advisory Committee (PBAC) ensures that decisions about subsidised access to medicines on the PBS are evidence-based.

Conclusion

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

Nikolai Tsyganov

Assistant Secretary

Pricing and PBS Policy Branch

Technology Assessment and Access Division

Department of Health and Aged Care

Overview

The National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3) (PB 25 of 2023) was enacted to amend the National Health (Efficient Funding of Chemotherapy) Special Arrangement 2011, which aims to enhance the efficiency of funding for chemotherapy medicines provided to cancer patients under the National Health Act 1953. This amendment reflects changes made to the National Health (Listing of Pharmaceutical Benefits) Instrument 2012, ensuring that the special arrangement aligns with the updated listing of pharmaceutical benefits. The Instrument is made under the authority of subsection 100(2) of the National Health Act 1953, empowering the Minister to modify or revoke special arrangements. The policy objective of this Instrument is to ensure that the Special Arrangement accurately reflects changes to the Pharmaceutical Benefits Scheme, thereby maintaining an efficient and effective system for funding chemotherapy drugs. This Instrument ensures that the amendments to the Special Arrangement, particularly concerning the circumstances under which prescriptions for certain chemotherapy drugs may be written, are implemented in accordance with the changes to the Pharmaceutical Benefits Scheme. This alignment helps to maintain the integrity and efficiency of the funding arrangements for chemotherapy, ultimately supporting the provision of essential health services to cancer patients. The changes are intended to enhance the quality and accessibility of cancer treatment within Australia, ensuring that the Special Arrangement remains effective and relevant in light of updated medical and pharmaceutical practices.

Scope and Application

The National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3) amends the National Health (Efficient Funding of Chemotherapy) Special Arrangement 2011 to reflect changes made to the National Health (Listing of Pharmaceutical Benefits) Instrument 2012. The Special Arrangement pertains to the efficient funding of chemotherapy pharmaceutical benefits, which are injected or infused chemotherapy medicines, and related pharmaceutical benefits, which are medicines for the side-effects of cancer and cancer treatment, supplied at certain public hospitals. The amendments, which commence on 1 April 2023, specifically alter the circumstances under which a prescription for the listed drug nivolumab can be written under the Special Arrangement. This Act applies to the Minister for Health and Aged Care, as the amendments are made under subsection 100(2) of the National Health Act 1953. The Act's jurisdiction is at the Commonwealth level, impacting all states and territories within Australia. The Special Arrangement, and thus this amendment, is subject to the recommendations of the Pharmaceutical Benefits Advisory Committee, which advises on which drugs and medicinal preparations should be available as pharmaceutical benefits. The Act and its amendments are designed to ensure that the supply of chemotherapy and related medicines to eligible patients is both efficient and evidence-based, reflecting the overarching goal of providing accessible and effective cancer treatment to patients across Australia.

Key Provisions

The National Health (Efficient Funding of Chemotherapy) Special Arrangement Amendment Instrument 2023 (No. 3) (PB 25 of 2023) amends the National Health (Efficient Funding of Chemotherapy) Special Arrangement 2011 (the Special Arrangement) to reflect changes made to the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (the Listing Instrument) (sections 1 and 3). This amendment, made under subsection 100(2) of the National Health Act 1953 (the Act), ensures the Special Arrangement aligns with the latest updates to the Listing Instrument, which determines the pharmaceutical benefits available under the Special Arrangement (section 3). The changes, which commence on 1 April 2023, include altering the circumstances in which a prescription may be written for the listed drug nivolumab (Schedule 1). The Act imposes specific obligations on the parties involved, particularly the Pharmaceutical Benefits Advisory Committee (PBAC). The PBAC, established by section 100A of the Act, plays a critical role in recommending which drugs and medicinal preparations should be available as pharmaceutical benefits. The Special Arrangement is contingent on the recommendations made by the PBAC, which considers the medical conditions for which a medicine has been approved for use in Australia, its clinical effectiveness, safety, and cost-effectiveness compared with other treatments. The PBAC is composed of members with diverse expertise, including consumers, health economists, practising community pharmacists, general practitioners, clinical pharmacologists, and specialists. Pharmaceutical companies are also consulted throughout the process of adding or changing listings on the Pharmaceutical Benefits Scheme (PBS). The Special Arrangement is designed to ensure that eligible patients receiving treatment for cancer have access to efficient funding for chemotherapy pharmaceutical benefits and related pharmaceutical benefits at certain public hospitals. Breach of the provisions set out in this Instrument may lead to civil or criminal consequences. The Act and any instruments made under it have the force of law, and any failure to comply with the requirements may result in legal action. For instance, prescribing a drug outside the amended circumstances set out in the Special Arrangement could lead to penalties under the Act, although specific penalties are not detailed in this particular Instrument. The Listing Instrument, which determines the pharmaceutical benefits available under the Special Arrangement, also has associated penalties for non-compliance, though these are not specified within this amendment. The amendments are intended to ensure that the Special Arrangement remains aligned with the most current standards and recommendations for the efficient funding of chemotherapy drugs, thereby protecting the rights of eligible patients to access necessary treatments.

Legal classification tags

Area of Law
Health Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Licensing & Registration
Reporting & Disclosure Obligations
Regulatory Standards

Interactions

Authorises

All Versions

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.