National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) (PB 8 of 2018)

Administered by Department of Health, Disability and Ageing

Legislation au F2018L00129 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

National Health Act 1953

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2)

PB 8 of 2018

Authority

Subsection 88(1) of the National Health Act 1953 (the Act), as amended by the National Health Amendment (Pharmaceutical Benefits – Budget and Other Measures) Act 2017 (the Amendment Act), provides that the Minister may determine, by legislative instrument, the pharmaceutical benefits for which a medical practitioner is authorised to write a prescription for supply as a pharmaceutical benefit.

Purpose

The National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) (the instrument) amends the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (PB 71 of 2012) (the principal instrument) to make changes required as a result of the commencement of Schedule 8 of the Amendment Act. Under subsection 88(1) of the Act as amended, it is necessary for the Minister to determine the pharmaceutical benefits for which a medical practitioner is authorised to write a prescription under the Pharmaceutical Benefits Scheme (PBS).

To meet this requirement, the instrument inserts new subsection 9(1A) into the principal instrument which provides that the Minister has determined that a medical practitioner is authorised to write a prescription for the supply of any pharmaceutical benefit. The instrument also repeals a note at the end of section 9 of the principal instrument which had reminded the reader that subsection 88(1) of the Act had provided previously that a medical practitioner could prescribe any pharmaceutical benefit. The insertion of the new subsection in section 9 means that this note is no longer required.

Background

Prior to the changes made by the Amendment Act, subsection 88(1) of the Act provided an overarching authority for a medical practitioner to write a prescription for the supply of any pharmaceutical benefit.

Subsection 88(1) as amended provides that a medical practitioner is authorised to write a prescription for the supply of any pharmaceutical benefit determined from time to time by the Minister by legislative instrument.

The amendment of the Act has brought the provisions for specifying the PBS medicines for prescribing by medical practitioners into line with those for other PBS prescribers. It means that pharmaceutical benefits for prescribing by medical practitioners are determined by the Minister; as are pharmaceutical benefits for prescribing by dentists, optometrists, nurse practitioners and midwives.

The change is necessary to enable an existing PBS listing for a medicine to be designated as being for ‘supply only’ when certain particulars of a listing change. For a supply only listing, existing prescriptions held by patients can be dispensed by approved suppliers, but no new prescriptions can be written by medical practitioners (or any other PBS prescriber). Prescriptions written with the old details remain valid for dispensing using the old listing, but all new prescriptions are written and supplied using the revised listing. To achieve this, a pharmaceutical benefit needs to be able to be listed without automatic authority for a medical practitioner to write a prescription for supply of that benefit (that is, it is necessary to be able to ‘turn off’ medical practitioner prescribing for supply only items).

The instrument determines that any pharmaceutical benefit listed on the PBS on the date of effect of the instrument can be prescribed by a medical practitioner. This in effect ‘grandfathers’ all PBS listings to the new arrangements.

The effect of the amendment to the principal instrument is that all pharmaceutical benefits currently listed on the PBS are determined for prescribing by medical practitioners under subsection 88(1) the Act. The amendment does not change the pharmaceutical benefits that can be prescribed by medical practitioners and does not result in any change to listings for pharmaceutical benefits. The instrument does not designate any listings as supply only.

Consultation

Consultation has occurred with the Department of Human Services. Public consultation was not considered necessary as the amendment maintains the pharmaceutical benefits that can be prescribed by medical practitioners.

General

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

This instrument commences immediately after the commencement of Schedule 8 to the Amendment Act.

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

This instrument has been made in anticipation of the commencement of subsection 88(1) of the Act as amended by the Amendment Act. As such, it relies on subsection 4(2) of the Acts Interpretation Act 1901.

 

 

ATTACHMENT

 

Provision by provision description of the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2)

 

Section 1 Name of Instrument

This section provides that the instrument is the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) and which may also be cited as PB 8 of 2018.

Section 2 Commencement

This section provides that the instrument commences immediately after the commencement of Schedule 8 to the National Health Amendment (Pharmaceutical Benefits—Budget and Other Measures) Act 2017 (the Amendment Act).

Section 3 Authority

This section provides that the instrument is made under subsection 88(1) of the National Health Act 1953 (the Act).

Section 4 Schedule

This section 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. The Schedule to the instrument specifies the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (PB 71 of 2012).

 

Schedule 1   Amendments

Item 1 Before subsection 9(1)

This item inserts new subsection 9(1A), which provides that for the purposes of subsection 88(1) of the Act, a medical practitioner is authorised to write a prescription for the supply of any pharmaceutical benefit.

This means that a medical practitioner may prescribe any drug listed for supply as a pharmaceutical benefit under the Pharmaceutical Benefits Scheme. It should be noted, however, that the writing of a prescription for supply as a pharmaceutical benefit can only be in accordance with any circumstances and purposes determined by the Minister under the Act.

Item 2 Section 9 (note)

This item repeals the note at the end of section 9, which is obsolete. The note reminded the reader that prior to the amendment of subsection 88(1) of the Act by the Amendment Act, a medical practitioner was authorised to prescribe any pharmaceutical benefit. Under subsection 88(1) as amended, the Minister determines the pharmaceutical benefits a medical practitioner is authorised to prescribe, and new subsection 9(1A) of the instrument serves this purpose by indicating the relevant pharmaceutical benefits.

 

Statement of Compatibility with Human Rights

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

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2)

(PB 8 of 2018)

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 Instrument

The National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) (the instrument) amends the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 (the principal instrument) which determines the pharmaceutical benefits that are included on the Pharmaceutical Benefits Scheme (PBS) through declarations of drugs and medicinal preparations, and determinations of forms and brands. The principal instrument also provides for related matters, including prescribing circumstances, schedule equivalence, maximum quantities, numbers of repeats, determined quantities, pack quantities, and drugs which are section 100 only or prescriber bag only.

The instrument does not alter the drugs currently listed in the principal instrument. Rather, it makes changes in response to the amendment of subsection 88(1) of the National Health Act 1953 (the Act). The amendment of subsection 88(1) replaced an overarching provision which authorised medical practitioners to prescribe any pharmaceutical benefit under the PBS with a new power that provides for the Minister to determine the pharmaceutical benefits that may be prescribed by medical practitioners under the PBS. The change to the Act has brought the provisions for medical practitioners into line with the existing provisions for determining benefits for prescribing by other PBS prescriber groups.

The principal instrument now provides that a medical practitioner is authorised to write a prescription for the supply of any pharmaceutical benefit. The effect is that medical practitioners may prescribe all the same pharmaceutical benefits after commencement of the instrument as before.

Human rights implications

The instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

The principal instrument engages Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights by assisting with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. It does this by supporting arrangements for access to affordable medicines for consumers via the PBS. The amendment to the principal instrument ensures that medical practitioners can continue to prescribe all pharmaceutical benefits listed on the PBS and does not affect the benefits listed on the PBS, or any other aspect of the operation of the principal instrument.

Taking into account the effect of the instrument and the nature of the applicable rights and freedoms, the outcome is that the instrument promotes the right to health and does not limit any rights or freedoms.

Conclusion

The instrument is compatible with human rights as it does not raise any human rights issues.

Greg Hunt
Minister for Health

 

Overview

The National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) was enacted to amend the National Health (Listing of Pharmaceutical Benefits) Instrument 2012, aligning the provisions for medical practitioners to prescribe Pharmaceutical Benefits Scheme (PBS) drugs with those for other prescribers. This change was necessitated by the amendment of subsection 88(1) of the National Health Act 1953, which now requires the Minister to determine the pharmaceutical benefits that medical practitioners can prescribe under the PBS. The instrument, made by the Minister for Health under the authority of the Act, ensures that any pharmaceutical benefit listed on the PBS can be prescribed by medical practitioners, thereby maintaining the existing list of drugs available for prescription without any reduction or alteration. The policy objective is to harmonise the prescription authority across different healthcare professionals, ensuring consistent access to pharmaceuticals for patients while allowing the Minister to control and adjust the list of available pharmaceutical benefits as needed. This legislative instrument, commencing immediately after the commencement of Schedule 8 of the National Health Amendment (Pharmaceutical Benefits – Budget and Other Measures) Act 2017, does not introduce any changes to the current listings of pharmaceutical benefits or their availability for prescription. Instead, it addresses the legislative framework to ensure that all drugs listed on the PBS remain available for prescription by medical practitioners, supporting the right to health by maintaining access to affordable medications. The instrument is compatible with human rights, as it supports the progressive realisation of the right to the highest attainable standard of physical and mental health by ensuring continued access to necessary pharmaceutical benefits.

Scope and Application

The National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) applies to medical practitioners and the Pharmaceutical Benefits Scheme (PBS) under the National Health Act 1953. It grants authority to the Minister to determine which pharmaceutical benefits medical practitioners are authorised to prescribe, aligning these provisions with those for other prescribers. The Act applies across the Commonwealth of Australia, ensuring uniform regulations and access to the PBS throughout the country. The instrument maintains the existing pharmaceutical benefits listed on the PBS and does not introduce any exclusions, exemptions, or thresholds. Instead, it ensures that all drugs currently listed on the PBS can continue to be prescribed by medical practitioners without alteration. Subordinate instruments may further specify the conditions under which these benefits can be prescribed, but the primary intent is to preserve the status quo regarding the scope of prescription authority for medical practitioners.

Key Provisions

The National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2018 (No. 2) amends the National Health (Listing of Pharmaceutical Benefits) Instrument 2012 to reflect changes made by the National Health Amendment (Pharmaceutical Benefits – Budget and Other Measures) Act 2017. This amendment primarily responds to changes in subsection 88(1) of the National Health Act 1953, which now requires the Minister to determine which pharmaceutical benefits can be prescribed by medical practitioners. The instrument introduces a new subsection 9(1A) into the principal instrument, which specifies that medical practitioners are authorised to write prescriptions for any pharmaceutical benefit, effectively granting them the same authority as other prescribers under the Pharmaceutical Benefits Scheme (PBS). This amendment ensures consistency in the authority to prescribe across different types of prescribers and allows for the designation of certain listings as "supply only," where new prescriptions cannot be written but existing ones can still be filled. The instrument imposes specific obligations on medical practitioners and the Minister. Medical practitioners must now adhere to the Minister’s determinations regarding which pharmaceutical benefits they can prescribe. The Minister, on the other hand, is obligated to make these determinations in line with the requirements of the National Health Act 1953 and to ensure that the PBS remains operational and accessible. The instrument ensures that all pharmaceutical benefits listed on the PBS at the time of the instrument’s effect remain available for prescription by medical practitioners, without introducing any new restrictions or changes to the existing listings. Any breaches of the obligations set out in the instrument may result in civil or criminal penalties. Although the instrument itself does not specify particular penalties, violations of the National Health Act 1953 or related regulations may lead to substantial fines or other legal consequences. For example, prescribing a pharmaceutical benefit not authorised by the Minister could be considered an offence under the Act, potentially resulting in penalties as stipulated in the relevant legislation. The precise penalties would depend on the specific nature and severity of the breach, as well as other applicable laws and regulations.

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