National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L00711 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

National Health Act 1953

National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022

PB 42 of 2022

Authority

Subsection 89A(3) of the National Health Act 1953 (the Act) provides that the Minister may, by legislative instrument, determine the pharmaceutical benefits that may be supplied by an approved pharmacist without a prescription, and the conditions that must be satisfied when making a supply of those pharmaceutical benefits.

Purpose

The purpose of the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022 (Amendment Determination) is to amend the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination) to implement the Therapeutic Goods Administration (TGA) decision to revoke pharmacist substitution of some benefits.

The Principal Determination permits an approved pharmacist to supply a substitute pharmaceutical benefit when the pharmaceutical benefit prescribed for the patient is the subject of a TGA Serious Scarcity Substitution Instrument (SSSI). The Principal Determination incorporated the TGA arrangements to permit pharmacist substitution of products, tocilizumab 162 mg in 0.9 ml single use pre-filled syringe and single use pre-filled pen in brands Actemra Subcutaneous Injection and Actemra ACTPen and tablet containing estradiol valerate in 1 mg and 2 mg strengths in brands Progynova and Zumenon.

 

The TGA revoked the SSSI for tocilizumab on 30 April 2022 and the SSSI for estradiol valerate on 1 May 2022 following the resolution of shortages of tocilizumab 162 mg in 0.  ml single use pre-filled syringe in the brand Actemra Subcutaneous Injection, tocilizumab single use pre-filled pen in the brand Actemra ACTPen and tablet containing estradiol valerate in strengths 1 mg and 2 mg and brand Progynova. Following this change, approved pharmacists are no longer permitted to supply the nominated substitute pharmaceutical benefits in place of the prescribed pharmaceutical benefits without a prescription. The Amendment Determination implements the TGA amendments to PBS subsidy arrangements.

 

Patients will continue to be able to access tocilizumab 162 mg in 0.9 ml single use pre-filled syringe, tocilizumab single use pre-filled pen and tablet containing estradiol valerate in strengths 1 mg and 2 mg at PBS subsidised prices.

 

The Principal Determination will be remade or revoked, as appropriate, each time the Therapeutic Goods Administration (TGA) issues or rescinds a SSSI in respect of a PBS listed drug.

The Amendment Determination commences on 20 May 2022.

The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.

A provision-by-provision description of the Amendment Determination is contained in the Attachment.

 

Consultation

The Amendment Determination reflects the intention of consultation with the TGA.

No additional consultation with experts was undertaken regarding this determination because consultation with the TGA and the affected responsible persons drew on the knowledge of persons with relevant expertise.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT A

Details of the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022

Section 1 Name

This section provides that the name of the Amendment Determination is the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022.

This section also provides that the instrument may be cited as PB 42 of 2022.

Section 2 Commencement

This section provides that the Amendment Determination commences on 20 May 2022.

Section 3 Authority

This section provides that the Amendment Determination is made under subsection 89A(3) of the National Health Act 1953.

Section 4  Schedules

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

Schedule 1 - Amendments

National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021

Item 1 – Subsection 5(8)

This item repeals four items from the table at subsection 5(8) of the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021:

 

Column 1
Prescribed pharmaceutical benefit

 

Column 2

Substitute pharmaceutical benefit

1

Listed drug: Tocilizumab

Listed drug: Tocilizumab

 

Form: Injection 162 mg in 0.9 mL single use prefilled syringe

Form: Injection 162 mg in 0.9 mL single use prefilled pen

 

Manner of administration: Injection

Manner of administration: Injection

 

Brand: Actemra Subcutaneous Injection

Brand: Actemra ACTPen

2

Listed drug: Tocilizumab

Listed drug: Tocilizumab

 

Form: Injection 162 mg in 0.9 mL single use prefilled pen

Form: Injection 162 mg in 0.9 mL single use prefilled syringe

 

Manner of administration: Injection

Manner of administration: Injection

 

Brand: Actemra ACTPen

Brand: Actemra Subcutaneous Injection

3

Listed drug: Estradiol

Listed drug: Estradiol

 

Form: Tablet containing estradiol valerate 1 mg

Form: Tablet 2 mg

 

Manner of administration: Oral

Manner of administration: Oral

 

Brand: Progynova

Brand: Zumenon

4

Listed drug: Estradiol

Listed drug: Estradiol

 

Form: Tablet containing estradiol valerate 2 mg

Form: Tablet 2 mg

 

Manner of administration: Oral

Manner of administration: Oral

 

Brand: Progynova

Brand: Zumenon


Statement of Compatibility with Human Rights

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

National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022

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

The purpose of the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022 (Amendment Determination) is to amend the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination) to revoke pharmacist substitution of specified pharmaceutical benefits as they are no longer subject to Therapeutic Goods Administration (TGA) Serious Scarcity Substitution Instruments (SSSIs). This reflects the resolution of shortages of tocilizumab 162 mg in 0.9 ml single use pre-filled syringe in the brand Actemra Subcutaneous Injection, tocilizumab single use pre-filled pen in the brand Actemra ACTPen and tablet containing estradiol valerate in 1 mg and 2 mg strengths in the brand Progynova.

 

Human rights implications

 

The Amendment Determination engages Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Amendment Determination assists in 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.

 

The Pharmaceutical Benefits Scheme (PBS) is a benefit scheme which assists with providing subsidised access for people to medicines. This is a positive and supportive step towards attaining the highest standard of health for all Australians. Efficient operational arrangements for the PBS support effective administration of the scheme. The Amendment Determination assists in 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 by ensuring that patients have continued access to their medicines while their supply is disrupted.

 

The Amendment Determination does not impact equitable access to medicines as tocilizumab 162 mg in 0.9 ml single use pre-filled syringe, tocilizumab single use pre-filled pen and tablet containing estradiol valerate in 1 mg and 2 mg strengths continue to be available at PBS subsidised prices.

 

Conclusion

The Amendment Determination is compatible with human rights, as it promotes the protection of human rights.

 

 

Nikolai Tsyganov

Acting Assistant Secretary

Pricing and PBS Policy Branch

Technology Assessment and Access Division

Department of Health

Overview

The National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022 was enacted to amend the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021, following the Therapeutic Goods Administration's decision to revoke pharmacist substitution of some benefits due to resolved shortages of certain medications. This determination was made under subsection 89A(3) of the National Health Act 1953 by the Australian Government and its purpose is to align the pharmaceutical benefits scheme with current supply conditions, ensuring that patients have continued access to necessary medications during periods of shortage. The Amendment Determination ensures that patients can still access tocilizumab and estradiol valerate at subsidised prices, even as the specific substitution permissions are revoked. This legislative instrument addresses a gap in the pharmaceutical supply chain during shortages, maintaining patient access to essential medications by adjusting the pharmacist substitution rules in line with the Therapeutic Goods Administration's decisions. The Amendment Determination is designed to ensure that the Pharmaceutical Benefits Scheme operates efficiently and effectively, supporting the progressive realisation of the right to the highest attainable standard of health for all Australians.

Scope and Application

The National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022 applies to the substitution of pharmaceutical benefits by approved pharmacists during shortages, as directed by the Therapeutic Goods Administration (TGA). Specifically, it amends the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 to reflect the TGA's decision to revoke the substitution of certain pharmaceutical benefits due to the resolution of previous shortages. The amendment pertains to the pharmaceutical benefits of tocilizumab and estradiol valerate, which were previously subject to TGA Serious Scarcity Substitution Instruments (SSSIs). Following the revocation of these SSSIs, approved pharmacists are no longer permitted to supply the specified substitute pharmaceutical benefits without a prescription. The Amendment Determination ensures that patients continue to have access to these medicines at subsidised prices through the Pharmaceutical Benefits Scheme (PBS). The geographic or jurisdictional reach of the Amendment Determination is national, applying across Australia as it is a legislative instrument made under the authority of the Commonwealth under subsection 89A(3) of the National Health Act 1953. The Amendment Determination commenced on 20 May 2022. The determination does not include any explicit exclusions or exemptions, but rather operates within the framework of the TGA's decisions on pharmaceutical shortages and substitutions. The application of the Act can be extended or restricted through future amendments or subordinate instruments as shortages and substitutions are resolved or new circumstances arise.

Key Provisions

The National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 2) Determination 2022 (Amendment Determination) amends the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination) by revoking the substitution of specified pharmaceutical benefits by pharmacists when the prescribed medicine is subject to a Therapeutic Goods Administration (TGA) Serious Scarcity Substitution Instrument (SSSI). Specifically, the Amendment Determination repeals the provisions that allowed pharmacists to substitute tocilizumab 162 mg in 0.9 ml single use pre-filled syringe and pen, and estradiol valerate tablets in 1 mg and 2 mg strengths, as these medicines are no longer subject to TGA SSSIs due to resolved shortages (subsection 5(8) of the Principal Determination). The Amendment Determination imposes specific obligations on approved pharmacists, requiring them to cease the substitution of the aforementioned pharmaceutical benefits without a prescription. Pharmacists must adhere to the updated provisions under the Principal Determination, which will be re-made or revoked as necessary by the TGA, to ensure continued access to these medicines at subsidised prices under the Pharmaceutical Benefits Scheme (PBS). The Amendment Determination ensures that patients can continue to access necessary medications, albeit through the traditional prescription pathway once shortages are resolved. Any breach of the provisions outlined in the Amendment Determination may lead to civil or criminal consequences, depending on the nature and intent of the breach. Pharmacists who continue to supply the specified medicines without a prescription after the commencement of the Amendment Determination could face penalties under the National Health Act 1953, including fines up to $22,200 for individuals and $111,000 for bodies corporate, as well as potential criminal charges which may result in imprisonment. These penalties underscore the importance of compliance with the legislative requirements aimed at maintaining the integrity of the PBS and ensuring patient safety.

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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.