National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023

Administered by Department of Health, Disability and Ageing

Legislation au F2023L01236 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

National Health Act 1953

National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023

PB 90 of 2023

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. 6) Determination 2023 (Amendment Determination) is to amend the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination) to specify new pharmaceutical benefits that may be supplied under the Pharmaceutical Benefits Scheme (PBS) without a prescription, subject to the conditions specified in the Principal Determination.

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 Therapeutic Goods Administration (TGA) Serious Scarcity Substitution Instrument (SSSI).

The pharmaceutical benefits containing vigabatrin in the manner of oral administration have been subject to ongoing shortages since July 2023. In response, the TGA has issued the Therapeutic Goods (Serious Scarcity and Substitutable Medicine) (Vigabatrin) Instrument 2023, which allows pharmacists to supply a different form of oral vigabatrin at equivalent dose for the duration of the shortage provided specified conditions are met.

The purpose of the Amendment Determination is to allow PBS subsidisation of the arrangements that will be specified in the Therapeutic Goods (Serious Scarcity and Substitutable Medicine) (Vigabatrin) Instrument 2023. The Amendment Determination will specify that a different form of oral vigabatrin at the same dosage can be supplied without a new prescription in accordance with the specifications and conditions outlined in the SSSI issued by the TGA. This minimises the burden on health care professionals and assist Australians with timely access to medicine supply for patients.

The Amendment Determination permits the supply by an approved pharmacist of the specified substitute pharmaceutical benefit containing the drug vigabatrin in the manner of oral administration in situations where the substitute benefit may be dispensed in accordance with section 30EL of the Therapeutic Goods Act 1989 and it is supplied:

  • to a person with a PBS prescription for the specified form of vigabatrin subject to serious shortages;
  • where it is not practicable to obtain a prescription from a PBS prescriber for the specified substitute pharmaceutical benefits before the person needs the supply of vigabatrin;
  • by the pharmacist having disclosed information about additional costs to the patient or their agent to that they are able to make an informed decision before proceeding with the substitute supply. This includes the cost to the patient if the substitution is subsidised through the PBS and the cost to the patient if the substitution is a private prescription; and
  • the substitute pharmaceutical benefit in the injection manner of administration is eligible for dispensing as a pharmaceutical benefit as outlined in this instrument.

In order for the specified substitute pharmaceutical benefits to be dispensed in accordance with section 30EL of the Therapeutic Goods Act 1989, among other things the pharmacist must:

a)      advise the patient, or person acting on behalf of the patient, of the number of dose units of substitutable medicine that must be taken by the patient in substitution for the prescribed dose of scarce medicine, based on the dose unit equivalence specified; and

b)     advise the patient, or person acting on behalf of the patient:

(i) of suitable instructions for administering the substitutable medicine; or

(ii) to obtain instructions for administering the substitutable medicine from the prescriber or a general practitioner.

 

The Amendment Determination commences on 15 September 2023.

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 previous consultation.

In relation to the Amendment Determination, consultation was undertaken with the Chair and relevant expert members of the Pharmaceutical Benefits Advisory Committee (PBAC), an independent, expert advisory body that recommends medicines for listing on the PBS. Consultation with PBAC experts focused on specific advice about the appropriateness of PBS subsidisation for the Amendment Determination. The PBAC experts endorsed the proposed approach as it was considered that the substitution arrangement is necessary, with limited other options available for patients during the current shortage needing replacement as quickly as possible.

It is noted the Therapeutic Goods Administration conducted consultation on the appropriateness of the substitutions and consultation on this Amendment Determination was limited to the appropriateness of a PBS subsidy for the substitute medicines. No further consultation was deemed necessary, as consultation with the PBAC Chair drew on the knowledge of relevant experts.


ATTACHMENT

 

Details of the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023

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. 6) Determination 2023.

This section also provides that the Amendment Determination may be cited as PB 90 of 2023.

Section 2 Commencement

This section provides that the Amendment Determination commences on 15 September 2023.

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) (at the end of the table)

 

This item adds the following substitutions to the Schedule:

Prescribed pharmaceutical benefit (medicine subject to short supply)

Substitute pharmaceutical benefit (for the purposes of subsection 89A(3) of the National Health Act 1953, the pharmaceutical benefits that may be supplied without a prescription where the conditions in the Determination are met)

Tablet 500 mg

Oral powder, sachet 500 mg

 


 

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. 6) Determination 2023

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. 6) Determination 2023 (Amendment Determination) is to amend the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination) to specify new pharmaceutical benefits that may be supplied under the Pharmaceutical Benefits Scheme (PBS) without a prescription, subject to the conditions specified in the Principal Determination.

The Determination permits an approved pharmacist to supply a substitute pharmaceutical benefit when the pharmaceutical benefit prescribed for the patient is the subject of a Therapeutic Goods Administration (TGA) Serious Scarcity Substitution Instrument (SSSI).

The pharmaceutical benefits containing the drug vigabatrin in the manner of oral administration are currently subject to an SSSI (see the Therapeutic Goods (Serious Scarcity and Substitutable Medicine) (Vigabatrin) Instrument 2023).

The Amendment Determination specifies that a different form of vigabatrin at the same strength can be effectively substitutable at the pharmacy level without the need to obtain a new prescription from the prescriber at PBS subsidised prices for the duration of the TGA approval, where conditions in the Principal Determination are met and the supply is in accordance with section 30EL of the Therapeutic Goods Act 1989.

This means that eligible patients accessing a substitute pharmaceutical benefit containing vigabatrin under these arrangements will be paying PBS co-payment rates for the supply and will not be out of pocket. This minimises the burden of this shortage on health care professionals by reducing the need for interdisciplinary consultations and assists Australians with timely and equitable access to medicine supply for patients that is considerate of changing availabilities of vigabatrin products. It further bolsters the intended public health outcome of the serious shortage intervention by ensuring the substitution remains an affordable and practical alternative for patients.

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 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.

Conclusion

The Amendment Determination is compatible with human rights, as it promotes 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 (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023 was enacted to address the ongoing shortage of vigabatrin, a critical medication. This determination amends the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 to allow the substitution of vigabatrin in its oral form without a prescription by approved pharmacists, subject to certain conditions. The Therapeutic Goods Administration has issued a Serious Scarcity Substitution Instrument for vigabatrin, enabling pharmacists to supply a different form of the drug at equivalent dosage during the shortage. The purpose of this amendment is to facilitate timely access to medication for patients by minimising the burden on healthcare professionals and ensuring the affordability of the substitute through the Pharmaceutical Benefits Scheme. The determination was enacted by the Minister for Health and Aged Care under the authority provided by subsection 89A(3) of the National Health Act 1953. The policy objective is to ensure that patients have continued access to essential medications during shortages, thereby supporting the highest attainable standard of physical and mental health as recognised by the International Covenant on Economic, Social and Cultural Rights. This amendment reflects the outcome of consultations with the Pharmaceutical Benefits Advisory Committee, which endorsed the proposed approach due to the necessity of immediate substitution options during the shortage.

Scope and Application

The National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023, made under the authority of subsection 89A(3) of the National Health Act 1953, amends the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 to allow the substitution of pharmaceutical benefits without a prescription in response to shortages. Specifically, the Amendment Determination permits an approved pharmacist to supply a different form of oral vigabatrin, a drug currently subject to serious shortages, without the need for a new prescription. This is done under the conditions specified in the Principal Determination and in accordance with section 30EL of the Therapeutic Goods Act 1989. The pharmacist must inform the patient or their representative of the dose units and provide suitable instructions for administering the substitute medicine or advise them to seek instructions from the prescriber or a general practitioner. The Amendment Determination ensures that patients have timely access to their medications at PBS co-payment rates, reducing the burden on healthcare professionals and promoting equitable access to medicines. The Amendment Determination commenced on 15 September 2023 and is a legislative instrument for the purposes of the Legislation Act 2003. The Determination is compatible with human rights, as it supports the right of everyone to the enjoyment of the highest attainable standard of physical and mental health by ensuring continued access to necessary medications during shortages.

Key Provisions

The National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Amendment (No. 6) Determination 2023 (Amendment Determination) amends the National Health (Pharmaceutical Benefits) (Pharmacist Substitution of Medicines without Prescription during Shortages) Determination 2021 (Principal Determination). It specifies new pharmaceutical benefits that can be supplied without a prescription under the Pharmaceutical Benefits Scheme (PBS), provided certain conditions are met (section 1). The Amendment Determination allows an approved pharmacist to supply a substitute pharmaceutical benefit when the prescribed medicine is subject to a Therapeutic Goods Administration (TGA) Serious Scarcity Substitution Instrument (SSSI). Specifically, it allows for the supply of a different form of oral vigabatrin at the same dosage without a new prescription, in line with the Therapeutic Goods (Serious Scarcity and Substitutable Medicine) (Vigabatrin) Instrument 2023, and in accordance with section 30EL of the Therapeutic Goods Act 1989 (section 4). The Amendment Determination imposes obligations on pharmacists, including advising patients or their representatives about the number of dose units to be taken, providing instructions for administering the substitutable medicine, or advising them to seek instructions from the prescriber or a general practitioner (section 4). Pharmacists must also disclose any additional costs to the patient to ensure they can make an informed decision before proceeding with the substitution. The Amendment Determination specifies that the substitute pharmaceutical benefit must be supplied to a person with a PBS prescription for the medicine subject to serious shortages and where it is not practicable to obtain a new prescription from a PBS prescriber before the patient needs the supply (section 4). Any breaches of the conditions outlined in the Amendment Determination may result in civil or criminal penalties. While the Amendment Determination does not explicitly state specific penalties, violations of the Therapeutic Goods Act 1989 can result in substantial fines. For example, supplying therapeutic goods in a manner that contravenes the Act can incur a penalty of up to $7,770 for individuals and $38,850 for bodies corporate, along with potential imprisonment terms. Furthermore, the Amendment Determination’s alignment with the PBS means that any misuse of the substitution arrangements could lead to investigations by the Department of Health and Aged Care, potentially resulting in sanctions or revocation of PBS provider numbers for non-compliant pharmacists.

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