EXPLANATORY STATEMENT
Therapeutic Goods Act 1989
Therapeutic Goods (Authorised Supply of Specified Medicines) 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 medicines, this involved the insertion of new subsections 19(7A) to (7H) in the Act.
Subsection 19(7A) 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 therapeutic goods for use in the treatment of humans; or
(b) a specified class of such goods;
to the class or classes of recipients specified in those rules, so long as:
(c) the goods are supplied in the circumstances specified in those rules; and
(d) the conditions (if any) specified in those rules are satisfied.
The Rules therefore specify classes of health practitioners, therapeutic goods, classes of recipients, circumstances and conditions and set out the relevant authorisations, for the purposes of new subsection 19(7A).
Subsection 19(7B) of the Act provides that, in making rules under subsection (7A), 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.
Following the enactment of the Amendment Act, the Therapeutic Goods Legislation Amendment (2017 Measures No. 1) Regulations 2017 amended the Therapeutic Goods Regulations 1990 (the Regulations) to add a provision (subregulation 12B(5)) setting out, for the purposes of paragraph 19(7B)(b) of the Act, restrictions precluding the Minister from authorising in the new instrument the supply of any medicines that contain a substance in Schedules 8 (Controlled Drug), 9 (Prohibited Substance) or 10 (Substances of such danger to health as to warrant prohibition of sale, supply and use) of the Poisons Standard (a copy of the current Poisons Standard can be found at www.legislation.gov.au). This has been complied with, and the Rules do not authorise the supply of any medicines containing these substances.
Subsection 19(7C) of the Act imposes a requirement for a health practitioner to notify a supply of goods under rules made under subsection 19(7A) to the Secretary after the health practitioner has supplied those goods. The health practitioner must do so in accordance with subsection 19(7D) of the Act (principally, this relates to ensuring that the notification contains the information prescribed in the regulations for the purposes of subsection 19(7D) – e.g. the practitioner’s name, and the medical condition for which the medicine was supplied to the patient).
The Rules are made for the purposes of subsection 19(7A) and comply with subregulation 12(5B) of the Regulations.
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 19(7A) of the Therapeutic Goods Act 1989
ATTACHMENT
Details of the Therapeutic Goods (Authorised Supply of Specified Medicines) Rules 2017
Section 1 – Name
This section provides for the Rules to be referred to as the Therapeutic Goods (Authorised Supply of Specified Medicines) 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 19(7A) of the Therapeutic Goods Act 1989.
Section 4 – Authorisation to supply medicines
This section sets out the relevant authorisations.
The therapeutic goods that may be supplied under the Rules are medicines containing only the active ingredient, or ingredients, specified in an item in table 1, in the strength or concentration (if any), and the dosage form, specified in that table item.
Subsection 4(1) provides that a health practitioner of the kind specified in an item in table 1 is authorised to supply the medicine 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 medicine 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 an indication specified in the relevant table item and the medicine must be for administration through the route of administration mentioned in the relevant table item.
The supply of a medicine 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 medicine is not on the Register, must receive informed consent, and must supply the medicine in accordance with good medical practice.
The health practitioner supplying the medicine (whether under subsection 4(1) or (2)) must notify the TGA, and the sponsor of the medicine, if the health practitioner becomes aware of any adverse event suffered by the patient or any defect in the medicine.
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 Medicines) 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 19(7A) 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 medicines, this involved the insertion of new subsections 19(7A) to (7H) in the Act
The Rules are made for the purposes of subsection 19(7A) and authorise health practitioners included in a specified class of health practitioners to supply specified therapeutic goods 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