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Health Practitioner Regulation (Consequential Amendments) Bill 2010

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2008-2009-2010

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

 

Health Practitioner Regulation

(Consequential Amendments) Bill 2010

 

 

 

 

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY

THE HOUSE OF REPRESENTATIVES

TO THE BILL AS INTRODUCED

 

 

 

 

(Circulated by authority of the Minister for Health and Ageing,

the Hon Nicola Roxon MP)





HEALTH PRACTITIONER REGULATION

(CONSEQUENTIAL AMENDMENTS) BILL 2010

 

OUTLINE

 

The Health Practitioner Regulation (Consequential Amendments) Bill 2010 (the Bill) provides for consequential amendments to recognise and support the implementation of the National Registration and Accreditation Scheme for the Health Professions (NRAS).  The Bill also proposes to streamline the extensive processes involved in the recognition of doctors for Medicare purposes under the Health Insurance Act 1973 (HIA) ensuring reduction of red tape.

 

The Council of Australian Governments (COAGs) agreed on 14 July 2006 to establish a national registration scheme for health professionals and a national accreditation scheme for health education and training.  COAG subsequently agreed to establish a single national scheme, with a single national agency encompassing both the registration and accreditation functions.  On 26 March 2008, COAG signed an Intergovernmental Agreement to implement the NRAS by 1 July 2010 .

The new arrangement will help health practitioners move around the country more easily, reduce red tape, provide greater safeguards for the public and promote a more flexible, responsive and sustainable health workforce.

The legislative framework for the NRAS is an applied laws model:

a.           Queensland is the lead state. The first tranche of legislation, the Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 (Qld) , received Royal Assent on 25 November 2008.  This Act established the structure and functions of the NRAS, including the new national agency, the Australian Health Practitioner Regulation Agency (AHPRA);

b.          The second tranche of legislation, the Health Practitioner Regulation National Law Act 2009 (Qld) , known as ‘the National Law’ received Royal Assent on 3 November 2009.  The National Law details the substantive provisions for registration and accreditation and replaces the first tranche of legislation.

c.           The third tranche of legislation involves the States and Territories passing legislation to apply the National Law and to include jurisdiction specific consequential and transitional provisions. 

The Commonwealth does not need to apply the National Law, however the purpose of this Bill is to make consequential and transitional amendments to Commonwealth legislation required to recognise and support the NRAS.

 

The HIA provides various pathways for recognising specialists, consultant physicians and general practitioners (GPs) for Medicare purposes.  The current HIA pathways to specialist, consultant physician and GP recognition necessitate communication exchange between Medicare Australia and relevant organisations (such as medical colleges) to ascertain eligibility.

 

The requirement to enact consequential amendments to Commonwealth health legislation provides an opportunity to streamline current specialist recognition processes under Commonwealth legislation, including removing the current Vocational Register for GPs.

 

Financial Statement

The financial impact of this Bill for the Department of Health and Ageing is small.  There may be some administrative savings within Medicare Australia from a reduction in resources to process specialist recognition. However, any possible savings will be offset through improvements in information technology systems.

 

COAGallocated $19.8 million over four years for implementation of the NRAS.  Jurisdictions agreed to split this budget in accordance with the Australian Health Ministers’ Advisory Council cost share formula.

 

Jurisdiction

C’wealth

NSW

Vic

Qld

WA

SA

Tas

ACT

NT

Amount ($m)

9.90

3.31

2.45

1.91

0.98

0.75

0.24

0.16

0.10

 

 



HEALTH PRACTITIONER REGULATION

(CONSEQUENTIAL AMENDMENTS) BILL 2010

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

This clause provides that the Bill, once enacted, may be cited as the Health Practitioner Regulation (Consequential Amendments) Act 2010 .

 

Clause 2 - Commencement

This clause provides that sections 1 to 3 will commence on the day the Bill receives Royal Assent. Schedule 1 will commence on a single day to be fixed by Proclamation.  It is necessary for Schedule 1 to commence by proclamation as the amendments proposed by the Bill are dependant on all State and Territory Parliaments passing their respective application laws to establish the NRAS as a national scheme and it is not certain at this stage when that will be, though it is planned that NRAS will be fully operational by 1 July 2010.  A date fixed by proclamation will provide certainty as to when Schedule 1 is to commence rather than relying on a provision which refers to when all the States and Territories’ application laws have commenced.

 

Clause 3 - Schedule(s)

Clause 3 specifies that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned. Schedule 1, Part 1 amends the Crimes Act 1914 and the Health Insurance Act 1973. Schedule 1, Part 2 provides transitional arrangements.

 

SCHEDULE 1 — PART 1 AMENDMENTS

 

Crimes Act 1914

 

Item 1 amends the definition of nurse in subsection 3(1), by removing the word ‘registered’ from the definition as a consequence of repealing the definition of ‘registered nurse’ and insertion of definition of ‘nurse’ in the HIA (item 5 and 8 refers).

 

Health Insurance Act 1973

 

Items 2 to 10 amend subsection 3(1) to ensure definitions of health practitioners in the HIA are consistent with the NRAS.  Current definitions relating to health practitioners in Commonwealth legislation refer to registration ‘under a State or Territory law’, which will technically remain the case with the introduction of the NRAS.  However, some provisions in need of consequential amendment were identified, to clearly define nurses and medical practitioners and modernise definitions as described in the National Law.

 

Item 2

The term ‘consultant physician’ is a term used for the purposes of the HIA. The definition of ‘consultant physician’ in section 3(1) of the HIA is currently:

‘consultant physician, in relation to a particular speciality, means a medical practitioner in relation to whom there is in force a determination under section 3DB or 3E that the medical practitioner is recognised for the purposes of this Act as a consultant physician in that speciality.’

 

Consultant physicians are specialists who generally work in ‘internal medicine’ areas and largely do consultations rather than procedural work. 

 

Item 2 repeals the definition of ‘consultant physician’ in subsection 3(1) and substitutes a new definition. Under the new definition there is no longer a need for determinations, rather a medical practitioner is a ‘consultant physician’ where:

(a)               the following conditions are met:

(i)         he or she is registered under a law of a State or Territory in a speciality (i.e a person is on the specialists register under the NRAS),:

(ii)       that speciality is prescribed in regulations for the purposes of the definition; and

(iii)     that specialty is also prescribed for the purposes of the definition of ‘specialist’, the regulations provide that the person is either a consultant physician rather than a specialist in relation to the specialty, or both a consultant physician and a specialist in relation to the specialty; or

(b)              he or she is a member of a class of medical practitioner prescribed in the regulations for the purposes of paragraph b of the definition. 

 

Regulations providing that a person is either a consultant physician rather than a specialist, or both a consultant physician and a specialist, in relation to a specialty provide a mechanism to distinguish between practitioners who can be both specialists and consultant physicians in relation to a particular speciality, for the purposes of Medicare.

 

The second limb of the definition at (b) is intended to capture, for example, those medical practitioners who may not be on the specialist register under the NRAS but who are nevertheless providing services related to a speciality in accordance with their registration under the NRAS for which medicare benefits should be payable for under the HIA so as not to disadvantage patients.

 

Item 3

This item repeals the current definition of ‘general practitioner’ in subsection 3(1) and substitutes a new definition. As a consequence of this amendment sections 3EA and 3F of the HIA are repealed (item 11 refers). The new definition of a ‘general practitioner’ is a medical practitioner who is registered under a law of a State or Territory to practise in the speciality of general practice or a medical practitioner of a kind specified in the regulations. The second limb of the definition is intended to capture, for example, those medical practitioners who may not be on the specialist register under the NRAS in the speciality of general practice but who are nevertheless providing services related to general practice in accordance with their registration under the NRAS for which medicare benefits should be payable for under the HIA so as not to disadvantage patients.

 

Item 4

Item 4 repeals and substitutes a new definition for ‘medical practitioner’ in sub-section 3(1) to better reflect the situation under the NRAS.  A ‘medical practitioner’ will be someone registered under a State or Territory law as a medical practitioner.’ The new definition does not replicate paragraphs (a) and (b) of the current definition of ‘medical practitioner’, as if a person’s registration is cancelled or revoked in one jurisdiction, then under the NRAS, registration is revoked in all participating jurisdictions so the person will no longer be a medical practitioner in any jurisdiction and thereby will not be a ‘medical practitioner’ under the HIA.  Further, under the NRAS, where a practitioner is ‘suspended’ they are considered not to be registered as a practitioner for the period of suspension.

 

Item 5

Item 5 inserts a new definition of ‘nurse’ in subsection 3(1) as a consequence of repealing the definition of ‘registered nurse’ (item 8 refers). The current definition of ‘registered nurse’ in sub-section 3(1) has been replaced with a definition of ‘nurse’.  There will be no significance under the NRAS arising from the term ‘general nurse’ (as in section 3(1)(a)) or ‘nurses registered in South Australia’ (as in section 3(1)(b)). Rather, the definition is amended to define nurses as ‘registered nurse (Division 1)’ and ‘enrolled nurse (Division 2)’.

 

Item 6 is a consequential amendment required following the revised definition of ‘nurse’ in Item 5, omitting ‘registered’ from the definition of nursing care and substituting ‘ nurse who is covered by paragraph (a) of the definition of nurse’ . A nurse who is covered by paragraph (a) of the definition of ‘nurse’ is a ‘registered nurse (Division 1)’.

 

This reflects the clinical practice of the nursing profession where enrolled nurses work under the supervision of registered nurses.

 

Item 7 repeals the definition of ‘ professional attention' in subsection 3(1) as it is no longer relevant and is therefore redundant. The concept of ‘professional attention’ is not used in any legislation, regulations or other delegated legislation. This term was relevant for the definition of 'hospital treatment' that appeared in the HIA, that term is now defined in the Private Health Insurance Act 2007 which does not refer to 'professional attention'.

 

Item 8 repeals the current definition of registered nurse under section 3(1) in the HIA. Item 5 provides for the revised definition.

 

Item 9

The current definition of ‘specialist’ in sub-section 3(1) is repealed and substituted with a new definition providing that a medical practitioner is a ‘specialist’ where :

(a)               the following conditions are met:

(i)         he or she is registered under a law of a State or Territory in a speciality (i.e a person is on the specialists register under the NRAS),:

(ii)       that speciality is prescribed in regulations for the purposes of the definition; and

(iii)     that specialty is also prescribed for the purposes of the definition of ‘consultant physician’, the regulations provide that the person is either a specialist rather than a consultant physician in relation to the specialty, or both a specialist and a consultant physician in relation to the specialty; or

(b)              he or she is a member of a class of medical practitioner prescribed in the regulations for the purposes of paragraph b of the definition. 

 

As for the definition of ‘consultant physician’, r egulations made for the purposes of paragraph (a)(iii) of the definition provide a mechanism to distinguish between practitioners who can be both specialists and consultant physicians in relation to a particular speciality, for the purposes of Medicare.

 

The second limb of the definition at (b) is intended to capture, for example, those medical practitioners who may not be on the specialist register under the NRAS but who are nevertheless providing services related to a speciality in accordance with their registration under the NRAS for which medicare benefits should be payable for under the HIA so as not to disadvantage patients.

 

The HIA currently distinguishes between ‘general practitioners’ and other ‘specialists’... Although the specialist register under the NRAS will include the speciality of ‘general practice’, it is intended that the regulations under the HIA will not prescribe ‘general practice’ for the purposes of this definition. The distinction between ‘general practitioners’ and ‘specialists’ needs to be maintained under the HIA, because there are differing Medicare items for general practitioners as opposed to other specialists.

Item 10 repeals the definition of ‘vocationally registered general practitioner’ as there will no longer be a Vocational Register of General Practitioners as consequence of the new definition of ‘general practitioner’ (items 3 and 11 refer).

 

Item 11 repeals sections:

·       3D ‘Recognition as specialists of members of certain organisations on advice from the organisation’

·       3DA: ‘Period of section 3D recognition’

·       3DB: ‘Alternative method of recognition as a specialist or consultant physician’

·       3DC: ‘Period of effect of determination’

·       3E: ‘Recognition as consultant physicians etc. of certain medical practitioners’

·       3EA: ‘Recognised Fellow of the Royal Australian College of General Practitioners’

·       3EB: ‘Revocation of determination’

·       3F: ‘Vocationally registered general practitioners’

·       3G: ‘Removal from Register’

 

Currently, there are a number of pathways for specialist and consultant physician recognition under the HIA:

·          Section 3D - Recognition as specialists of members of certain organisations on advice from the organisation.  A medical practitioner is taken to be recognised as a specialist under this section if a relevant organisation (prescribed by Regulation 4 and Schedule 4 of the Health Insurance Regulations 1975 ) , generally a College, notifies Medicare Australia that the medical practitioner meets the criteria for specialist recognition.  The criteria is set out in sub-section 3D(2) and includes (a) Australian domicile; (b) fellowship of a relevant organisation in relation to the speciality; and (c) a relevant qualification. Section 3D is a pathway for specialists only (not consultant physicians).

·          Section 3DB - Alternative method of recognition as a specialist or consultant physician.   A medical practitioner may apply to the Minister for a determination that the medical practitioner is a specialist or consultant physician if the following criteria are met (a) Australian domicile; and (b) registration as a specialist in a particular speciality. Sub-section 3DB(2) states that a medical practitioner can also apply for a determination if the medical practitioner meets the criteria set out in sub-section 3D(2) (see paragraph above). Section 3DB is a pathway for both specialists and consultant physicians. 

·          Section 3E - Recognition as consultant physicians etc. of certain medical practitioners .   The Minister may make a determination that a medical practitioner who is not domiciled in Australia should be recognised for the purposes of the HIA for a specified period as a specialist or a consultant physician. Section 3E is a pathway for both specialists and consultant physicians. The purpose of this section is primarily to increase the supply of health practitioners to ‘areas of need’, that is, areas of Australia where there is a shortage of specialists and consultant physicians in comparison to the population.

 

Under the NRAS, the Medical Board of Australia (MBA), the new National Board responsible for registering medical practitioners, in conjunction with the AHPRA, will maintain a ‘specialists register ’ which will record all medical practitioners who are registered as a specialist under the National Law. As a consequence of the new definition of ‘specialist’ and ‘consultant physician’ provided in this Bill, which relies on the NRAS registers, the Minister will no longer be required to make determinations in relation to a medical practitioner, thereby simplifying processes for specialist recognition for Medicare purposes. For example, this will reduce the need for Medicare Australia to liaise with a number of bodies, instead Medicare Australia will liaise with the MBA to establish whether a person is a ‘specialist’ or ‘consultant physician’ under the HIA. Sections 3D, 3DA, 3DB, 3DC and 3E are therefore redundant and repealed.

 

The HIA currently contains three pathways to recognition as a general practitioner. They are set out in the definition of ‘general practitioner’ in subsection 3(1) and are as follows:

(a)   a medical practitioner in respect of whom a determination under section 3EA is in force; or

(b)   a person registered under section 3F as a vocationally registered general practitioner; or

(c)   a medical practitioner of a kind specified in the regulations .

 

The MBA is currently considering how it will recognise these vocationally registered general practitioners under the NRAS, for example, whether they can transition on to the specialists register under the NRAS in the speciality of ‘general practice’. If the MBA determines that these practitioners will transition onto the specialists register, they will be covered under item 3(a). If not, these practitioners will be covered under a regulation under item 3(b).

 

There is a small group of medical practitioners who are currently engaged in application or review processes relating to the Vocational Register of General Practitioners. A transitional provision at item 27 enables the making of regulations to ensure that appropriate medical practitioners who are on the Vocational Register for General Practitioners under the HIA prior to the commencement of the Schedule to the Bill will continue to be considered a ‘general practitioner’ under the HIA for a specified period of time even though they may not meet the new definition under item 3. 

 

As a consequence of the new arrangements, s ections 3EA, 3EB, 3F and 3G are redundant and are repealed.

 

Item 12 makes a consequential amendment to subsection 3GC(6A) as a result of repealing section 3D of the HIA, it also renumbers the provision to be 3GC(7) and inserts a new subsection 3GC(8).

 

The purpose of the definition in subsection 3GC(6A)  is to provide clarity to the meaning of ‘medical college’ so the functions of the Medical Training Review Panel (MTRP)  in relation to the compilation of information relating to medical colleges is clear (paragraph 3GC(2)(d) refers). Subsection 3GC(6A) currently defines ‘medical college’ for the purposes of section 3GC as an organisation declared by the regulations to be a professional organisation in relation to a speciality for the purposes of section 3D.  As section 3D has been repealed (item 11 refers), the regulations made under section 3D will no longer have effect, therefore a new definition of medical college is required.

 

This amendment confers a power on the Minister to specify to the MTRP, by a notice in writing, that an organisation is a medical college for the purposes of section 3GC. This amendment does not confer a power on the Minister to accredit medical colleges or recognise what is a medical college. Rather it enables the Minister to specify to the MTRP the medical colleges about which it may collect information.  These will be medical colleges providing training in specialties accredited by the Australian Medical Council.  The notice is non-legislative in character and this is reflected in the proposed subsection 3GC(8) which, for clarity, provides that a notice under proposed 3GC(7) is not a legislative instrument.

 

Item 13 repeals section 3H - ‘References in RACGP may be varied’ and is a consequential amendment required because of the repeal and substitution of the definition of ‘general practitioner’ and the repeal of sections 3EA, 3EB, 3F,amd 3G (item 11 refers).

 

Items 14 to 22

Sections 19C, 19CB and 19DA of the Act currently only apply to medical practitioners. In recent years an increasing range of health professionals, such as psychologists, speech pathologists and chiropractors have become able to provide Medicare eligible services. However, these health professionals are not currently subject to sections 19C, 19CB and 19DA of the Act.

 

Amendments 14 to 22 will widen the scope of sections 19C, 19CB and 19DA of the Act so they apply to all health professionals registered under a state or territory law who render Medicare eligible services.

 

Section 19C of the Act prohibits the payment of Medicare benefits for a service provided by a medical practitioner where that service is beyond the scope of the practitioner’s registration, that is, the service is not authorised under the practitioner’s registration or not authorised to be provided in the circumstances in which it was provided.

 

·            Item 14

Item 14 repeals subsection 19C(2) and inserts two new definitions: ‘practitioner’ and ‘practitioner’s registration’. The new definition of practitioner widens the scope of section 19C to apply not just to medical practitioners but also to all health professionals that are registered under a State or Territory law and who provide Medicare eligible services.

 

The new definition of ‘practitioner’s registration’ is a consequential amendment as a result of the new categories of health professionals to whom section 19C applies.

 

The note removes the word ‘medical’ from the heading of the section.

 

·            Item 15 repeals paragraphs 19C(3)(a) and (b) and provides substituted wording as a consequence amendments in item 14.

 

·            Item 16 repeals paragraphs 19C(4)(a) and (b) and provides substituted wording as a consequence of amendments in item 14.

 

Section 19CB is an offence provision which currently places an obligation on medical practitioners, to whom a direction applies under section 19CB, a requirement to give a patient notice that medicare benefits will not be payable in respect of services rendered by them unless the Minister otherwise directs. Failure to give such a notice is an offence. 

 

Items 17 to 21A expand the application of section 19CB to registered health professionals other than medical practitioners.

 

·            Item 17 inserts a new subsection (1A) to section 19CB to define ‘practitioner’ and ‘practitioner’s registration’ for the purposes of this section. These terms have the same meaning as in section 19C.

·            Item 17A removes ‘medical’ from ‘medical practitioner’ in subsection 19CB(1). This will enable the Minister to issue directions to the wider scope of registered health professionals meeting the definition of ‘practitioner’ in new subsection 19CB(1A).

·            Item 18 modernises the terminology in subsection 19CB(1)(a) and (b) by omitting and substituting ‘practitioner’s licence’ with ‘registration’.

·            Item 19 omits ‘in that State and Territory’ from subsection 19CB(1) as the NRAS replaces the current separate State and Territory registration processes with a nationally consistent scheme.

·            Item 20 modernises the terminology in paragraph 19CB(1)(d) by omitting and substituting ‘practitioner’s licence’ with ‘registration’.

·            Item 21 is a technical change consequential to the expansion of the scope of section 19CB.

·            Item 21A is a technical change consequential to the expansion of the scope of section 19CB.

 

The note removes the word ‘medical’ from the heading of the section.

 

Section 19DA currently prohibits a medical practitioner whose registration is suspended or cancelled from providing a service unless the practitioner first informs his or her patient that Medicare benefits will not be payable for the service.  A penalty is imposed on medical practitioners who fail to comply with this provision.

 

·            Item 22 amends section 19DA. The item provides for a new definition of ‘deregistered practitioner’, being a person who was registered under a law of state or territory as a practitioner but who is not currently so registered. Practitioner has the same meaning as in section 19C. This widens the scope of section 19DA to apply to all health professionals registered under a law of a State or Territory, not just to medical practitioners. 

 

Items 23 and 24

These amend section 106XB - ’Referring to appropriate regulatory body and non-compliance by a practitioner with professional standards’.  Section 106XB requires the Director of Professional Services Review (PSR) to forward any material detailing concerns about a practitioner failing to comply with professional standards that he or she receives from a PSR Committee or Determining Authority to the ‘appropriate body’ referred to in sub-section 106XB(3). Currently, the appropriate body for general practitioners is the body specified in the regulations made for paragraph 3F(6)(b) (which will be repealed by this Bill) and otherwise a body specified in the regulations  Upon introduction of the NRAS, the appropriate body will be the MBA for medical practitioners. The amendment retains the power for regulations to prescribe other appropriate bodies for the purposes of section 106XB.

 

Item 25 repeals sub-sections 130(5C) and (5D) regarding ‘Officers to observe secrecy’. These provisions are redundant as sections 3F and 3G are repealed by this Bill.   



 

SCHEDULE 1 — PART 2 TRANSITIONAL PROVISIONS

 

Item 26

This provision provides definitions for ‘commencement time’, ‘new law’ and ‘old law’ for the purposes of the transitional provisions.

 

Item 27

Item 27 enables the making of regulations to ensure that appropriate medical practitioners who are on the Vocational Register for General Practitioners under the HIA prior to the commencement of the Schedule to the Bill will continue to be considered a ‘general practitioner’ under the HIA for a specified period of time even though they may not meet the new definition under Item 3. The transitional provision also covers practitioners who have outstanding applications or appeals to the General Practice Recognition Eligibility Committee or to the General Practice Recognition Appeal Committee. This item is intended to offer flexibility to deal with people who may be affected by the introduction of the NRAS and the amendments made to the HIA.

 

Item 28

Item 28 is a savings provision which provides that a direction made under subsection 19C(3) or 19C(4) prior to the commencement of the Schedule to this Bill continues to remain in force after the amendments to those subsections come into force under this Bill.

 

Item 29

Item 29 is a savings provision which provides that a direction made under subsection 19CB(1) prior to the commencement of the Schedule to this Bill continues to remain in force after the amendments to that subsections comes into force under this Bill.