EXPLANATORY STATEMENT
Therapeutic Goods Act 1989
Therapeutic Goods (Authorised Supply of Specified Medical Devices) Rules 2017
The object of the Therapeutic Goods Act 1989 (the Act) is to establish and maintain a national system of controls for the quality, safety, efficacy/performance and timely availability of therapeutic goods that are used in Australia or exported from Australia. The Therapeutic Goods Administration (the TGA), which is part of the Department of Health, is responsible for administering the Act.
The Therapeutic Goods Amendment (2016 Measures No.1) Act 2017 (the Amendment Act) recently amended the Act to, in particular, support the implementation of several key recommendations of the Expert Panel Review of Medicines and Medical Device Regulation (the Review) agreed to by the Australian Government in its response to the Review. The Expert Panel was established to, principally, identify areas of the regulation of medicines and medical devices which could be streamlined while maintaining the safety and quality of therapeutic goods in Australia, and made 58 recommendations. The Australian Government supported 56 of the 58 recommendations for reform. The Amendment Act addressed a first tranche of these recommendations.
One of the reforms supported by the Amendment Act was to enable health practitioners to supply certain unapproved therapeutic goods – principally those with an established history of use in similar overseas countries or in Australia through the existing provisions to access unapproved therapeutic goods – to their patients by way of notification to the TGA, rather than (as currently) requiring pre-approval. For medical devices, this involved the insertion of new subsections 41HC(6) to (6G) in the Act
Subsection 41HC(6) of the Act provides that the Minister may, by legislative instrument, make rules authorising any health practitioner who is included in a specified class of health practitioners to supply a specified kind of medical device for use in the treatment of humans to the class or classes of recipients specified in those rules, so long as:
(a) the kind of medical device is supplied in the circumstances specified in those rules; and
(b) the conditions (if any) specified in those rules are satisfied.
The Rules therefore specify classes of health practitioners, kinds of medical devices, classes of recipients, circumstances and conditions and set out the relevant authorisations, for the purposes of new subsection 41HC(6).
Subsection 41HC(6A) of the Act provides that, in making rules under subsection (6), the Minister must comply with:
(a) such requirements (if any) as are prescribed by the regulations; and
(b) such restrictions (if any) as are prescribed by the regulations; and
(c) such limitations (if any) as are prescribed by the regulations.
No regulations have been made for the purposes of subsection 41HC(6A).
Subsection 41HC(6B) of the Act imposes a requirement for a health practitioner to notify a supply of a medical device under rules made under subsection 41HC(6) to the Secretary after the health practitioner has supplied the medical device. The health practitioner must do so in accordance with subsection 41HC(6C) of the Act (principally, this relates to ensuring that the notification contains the information prescribed in the regulations for the purposes of subsection 41HC(6C) – e.g. the practitioner’s name, and medical condition for which the medical device was supplied to the patient).
The Rules are made for the purposes of subsection 41HC(6).
Details of the Rules are set out in the Attachment.
The Rules are a legislative instrument for the purposes of the Legislation Act 2003.
The Rules commence on 3 July 2017.
Consultation
Extensive stakeholder consultation was undertaken with consumers, industry and health professionals as part of the Review.
A public consultation on the proposed changes to introduce a new, streamlined pathway to access unapproved therapeutic goods which have been deemed to have an established history of safe use has also been completed. The focus of this consultation included the criteria used to determine whether a product has an established history of use.
Authority: Subsection 41HC(6) of the Therapeutic Goods Act 1989
ATTACHMENT
Details of the Therapeutic Goods (Authorised Supply of Specified Medical Devices) Rules 2017
Section 1 – Name
This section provides for the Rules to be referred to as the Therapeutic Goods (Authorised Supply of Specified Medical Devices) Rules 2017.
Section 2 – Commencement
This section provides for the Rules to commence on 3 July 2017.
Section 3 – Authority
This section provides that the Rules are made under subsection 41HC(6) of the Therapeutic Goods Act 1989.
Section 4 – Authorisation to supply medical devices
This section sets out the relevant authorisations.
The kinds of medical devices that may be supplied under the Rules are specified in table 1.
Subsection 4(1) provides that a health practitioner of the kind specified in an item in table 1 is authorised to supply the medical device covered by that table item to a patient of the health practitioner.
Subsection 4(2) provides that another health practitioner is authorised to supply the medical device to a patient of the first health practitioner if requested to do so by the first health practitioner.
In both cases, the supply must be for a purpose specified in the relevant table item.
The supply of a medical device under the Rules is subject to conditions. In the case of supply by a health practitioner to their own patient, the health practitioner must inform the patient (or a parent or guardian of the patient) that the medical device is not on the Register, must receive informed consent, and must supply the medical device in accordance with good medical practice.
The health practitioner supplying the medical device (whether under subsection 4(1) or (2)) must notify the TGA, and the sponsor of the medical device, if the health practitioner becomes aware of any adverse event suffered by the patient or any defect in the medical device.
Subsection 4(3) provides that notification must be in accordance with reporting guidelines set out in the document titled Special Access Scheme Guidance for health practitioners and sponsors, published in June 2017. In accordance with subsection 14(2) of the Legislation Act 2003, this document is incorporated as in force at the commencement of the Rules. The document is freely available on the TGA website (www.tga.gov.au).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Therapeutic Goods (Authorised Supply of Specified Medical Devices) Rules 2017
The Rules are 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 Rules are made under subsection 41HC(6) of the Therapeutic Goods Act 1989 (the Act). They take effect on 3 July 2017.
The Therapeutic Goods Amendment (2016 Measures No.1) Act 2017 (the Amendment Act) recently amended the Act to, in particular, support the implementation of several key recommendations of the Expert Panel Review of Medicines and Medical Device Regulation (the Review) agreed to by the Australian Government in its response to the Review (see www.tga.gov.au). The Expert Panel was established to, principally, identify areas of the regulation of medicines and medical devices which could be streamlined while maintaining the safety and quality of therapeutic goods in Australia, and made 58 recommendations. The Australian Government supported 56 of the 58 recommendations for reform, and the Amendment Act addressed a first tranche of these recommendations.
One of the reforms supported by the Amendment Act was to enable health practitioners to supply certain unapproved therapeutic goods – principally those with an established history of use in similar overseas countries – to their patients by way of notification to the TGA, rather than (as currently) requiring pre-approval. For medical devices, this involved the insertion of new subsections 41HC(6) to (6G) in the Act
The Rules are made for the purposes of subsection 41HC(6) and authorise health practitioners included in a specified class of health practitioners to supply specified kinds of medical devices to specified classes of recipients.
Human rights implications
The Rules do not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Larry Kelly, delegate of the Minister for Health