EXPLANATORY STATEMENT

Veterans’ Affairs (Private Patient Principles Re-Making) Instrument 2014

EMPOWERING PROVISIONS

The Veterans’ Entitlements Act 1986 (the VEA) – section 90A.

The Military Rehabilitation and Compensation Act 2004 (MRCA) – section 286(1)(b).

The Australian Participants in British Nuclear Tests (Treatment)Act 2006 (APBNT(T)A) – section 17.

PURPOSE

The attached instrument (2014 No.R79/MRCC79) re-makes the three (virtually identical) sets of “Private Patient Principles” under the VEA, MCRA and APBNT(T)A namely, and respectively:

the Repatriation Private Patient Principles;

the MRCA Private Patient Principles 2004; and

the Veterans’ Affairs (Modified Repatriation Private Patient Principles - Australian Participants in British Nuclear Tests) Instrument 2006.

Hereinafter these instruments are referred to collectively as the Private Patient Principles.

The Private Patient Principles is a legislative instrument that sets out the circumstances in which treatment under the VEA, MRCA and APBNT(T)A may be provided to persons eligible for treatment (entitled persons) as private patients. 

Usually, but not necessarily, treatment provided to a person as a private patient is treatment provided to a person in a hospital where the person has a choice of medical practitioner.

The attached instrument revokes and re-makes the Private Patient Principles for the purpose of the sunsetting exercise and for the purpose of including a provision in the Private Patient Principles that will enable the Department of Veterans’ Affairs (DVA) to part-pay for an entitled person’s non-medically necessary private accommodation in hospital where the person or his/her insurer pays the remainder of the cost of the accommodation (private accommodation surcharge measure). 

Accordingly, apart from technical, legal updating, and the inclusion of the private accommodation surcharge measure, the instruments are the same in substance as the instruments they replace.

It should be noted that subsection 26(1B) of the Legislative Instruments Act 2003 (as it was known on 1 August 2014) provides that the requirement for an explanatory statement to explain the purpose and operation of an instrument may be met by an explanation that the instrument replaces a specified earlier legislative instrument or a specified provision of an earlier legislative instrument and is the same in substance as the specified instrument or provision.

sunsetting

On 1 April 2015 the Private Patient Principles under the VEA and MRCA will “sunset” (expire) unless they are re-made. 

DVA has performed preliminary reviews of the instruments to ascertain if they are still required and found the instruments are still required.  Accordingly the instruments have been re-made. 

The review also found that, generally, the instruments were “fit-for-purpose” but did not out rule out a more comprehensive review in the future, resources permitting.

One purpose, therefore, of the attached instrument is to save the Private Patient Principles from sunsetting and thereby preserve the entitlements of the men and women who have served in Australia’s Defence Force and the entitlements of their dependants.

private accommodation surcharge measure

DVA is able to pay a client’s shared hospital accommodation costs and is able to pay the costs of a client’s private accommodation in hospital where such accommodation is medically necessary but uncertainty surrounds the issue of whether DVA is able to lawfully pay for part of a client’s non-medically necessary private accommodation in hospital where the client or his/her insurer agrees to pay the difference (the surcharge) between the amount DVA would have paid for shared hospital accommodation for the client and the amount payable for the client’s private accommodation in hospital. 

Where a client chooses non-medically necessary private accommodation over shared accommodation, DVA does not pay the full cost of the private accommodation because it is a lifestyle choice by the client and unrelated to any medical need of the client.

The attached instrument, therefore, make it clear DVA can pay part of the costs for non-medically necessary private accommodation for a client in hospital where the client or his/her insurer pays the remainder of the costs i.e. the surcharge. 

Schedules 1-3 of the attached instrument re-make the following legislative instruments, respectively.  A description of the instruments is given in Attachment A:

Repatriation Private Patient Principles

MRCA Private Patient Principles

Veterans’ Affairs (Modified Repatriation Private Patient Principles - Australian Participants in British Nuclear Tests) Instrument 2006

CONSULTATION

Yes.  There has been consultation with the forum known as ESORT (Ex Service Organisations Round Table).  ESORT endorsed the proposals at its meeting on 12 August 2014. 

Nature of Consultation

Noting that paragraph 26(1A)(d) of the Legislative Instruments Act 2003 requires an Explanatory Statement for a legislative instrument to contain a description of the nature of any consultation, the nature of the consultation was listing the matter as an agenda item for an ESORT meeting.

RETROSPECTIVITY

None.

DOCUMENTS INCORPORATED-BY-REFERENCE

No.

HUMAN RIGHTS STATEMENT

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

The attached legislative instrument engages and promotes the Right to Health contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights.

For the private accommodation surcharge measure, although the changes made by the attached instrument are not made on the basis they will advance the health of an entitled person in that in the relevant circumstances the person would not medically need private accommodation in hospital (shared accommodation being adequate) and obtaining such accommodation is a lifestyle choice, nevertheless any measure that could enhance the wellbeing of a person could be regarded as engaging the person’s right to health and in this regard the attached instrument does that and in a positive manner

For the sunsetting measure, the attached instrument re-makes legislative instruments that set out the circumstances in which DVA may pay for a section of the community to be treated in hospital as private patients (choice of medical practitioner).  Accordingly the instrument enables free and enhanced (choice of medical practitioner) hospital treatment to be provided to the people in question and therefore promotes their right to health.

Michael Ronaldson

Minister for Veterans’ Affairs

Rule-Maker

FURTHER EXPLANATION OF NEW PROVISIONS

See: Attachment A

Attachment A

Section [1]

This section sets out the name of the instrument - Veterans’ Affairs (Private Patient Principles Re-Making) Instrument 2014.

Section [2]

This section provides that the instrument commences on the day after it is registered.

Section [3]

This section is a transitional provision and provides that if, before the commencement of the attached instrument, an entitled person, or an insurer of the person, had requested the Repatriation Commission or Military Rehabilitation and Compensation Commission to accept financial responsibility for part of the cost of the entitled person being accommodated in private accommodation in a hospital, and on the commencement of the instrument the request had not been determined, then the request is to be determined under the relevant set of Private Patient Principles made by the attached instrument.

Schedule 1

This Schedule revokes and re-makes the Repatriation Private Patient Principles under the Veterans’ Entitlements Act 1986 in accordance with Part A of the Schedule. 

Part A

Apart from technical legal updating, such as to the definition of “Medicare Australia” and the streamlining of the treatment monitoring provisions the only new policy change to the previous Repatriation Private Patient Principles is the inclusion of paragraph 1.3(d)(the private accommodation surcharge measure).

Schedule 2

This Schedule revokes and re-makes the MRCA Private Patient Principles 2004 under the Military Rehabilitation and Compensation Act 2004 in accordance with Part A of the Schedule. 

Part A

Apart from technical legal updating, such as to the definition of “Medicare Australia” and the inclusion of a treatment monitoring provision, the only new policy change to the previous MRCA Private Patient Principles 2004 is the inclusion of paragraph 1.3(d)(the private accommodation surcharge measure).

Schedule 3

This Schedule revokes the Repatriation Private Patient Principles (Australian Participants in British Nuclear Tests) 2006 and essentially re-makes the instrument as the Veterans’ Affairs (Modified Repatriation Private Patient Principles - Australian Participants in British Nuclear Tests) Instrument 2006 in accordance with Part A of the Schedule. 

Part A

Essentially no new changes have been made to the previous Repatriation Private Patient Principles (Australian Participants in British Nuclear Tests) 2006 (the instrument that modified the Repatriation Private Patient Principles under the Veterans’ Entitlements Act 1986 as that instrument applied under the Australian Participants in British Nuclear Tests (Treatment) Act 2006).

In the current exercise there was no need to modify the Repatriation Private Patient Principles, as that instrument applied under the Australian Participants in British Nuclear Tests (Treatment) Act 2006, because the technical legal updating and the private accommodation surcharge measure in the Repatriation Private Patient Principles could be applied under the Australian Participants in British Nuclear Tests (Treatment) Act 2006 without modification.

Accordingly, the Repatriation Private Patient Principles (Australian Participants in British Nuclear Tests) 2006 were mainly re-made to make the drafting style of the instrument more appropriate i.e. set out, in table form, the provisions in the Repatriation Private Patient Principles that were being modified and the corresponding modification). 

Re-making the Repatriation Private Patient Principles (Australian Participants in British Nuclear Tests) 2006 has the incidental effect of extending its sunsetting date (previously 1 April 2017).