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This is a Bill, not an Act. For current law, see the Acts databases.

MEDICAL INDEMNITY LEGISLATION AMENDMENT BILL 2005

2004-2005
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Medical Indemnity Legislation
Amendment Bill 2005
No. , 2005
(Health and Ageing)
A Bill for an Act to amend the Medical Indemnity
Act 2002, and for other purposes
i Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
Contents
1
Short title.......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................4
Schedule 1--Run-off cover indemnity scheme
5
Medical Indemnity Act 2002
5
Medical Indemnity (Prudential Supervision and Product Standards)
Act 2003
8
Medical Indemnity (Run-off Cover Support Payment) Act 2004
9
Schedule 2--Claims protocols
10
Medical Indemnity Act 2002
10
Schedule 3--Other amendments
15
Medical Indemnity Act 2002
15
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 1
A Bill for an Act to amend the Medical Indemnity
1
Act 2002, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Medical Indemnity Legislation
5
Amendment Act 2005.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent.
2. Schedule 1,
items 1 to 5
Immediately after the commencement of
items 1 to 24 of Schedule 1 to the Medical
Indemnity Legislation Amendment (Run-off
Cover Indemnity and Other Measures) Act
2004.
1 July 2004
3. Schedule 1,
item 6
The day on which this Act receives the
Royal Assent.
4. Schedule 1,
item 7
Immediately after the commencement of
sections 3 to 62 of the Legislative
Instruments Act 2003.
1 January 2005
5. Schedule 1,
item 8
The day on which this Act receives the
Royal Assent.
6. Schedule 1,
item 9
Immediately after the commencement of
items 1 to 24 of Schedule 1 to the Medical
Indemnity Legislation Amendment (Run-off
Cover Indemnity and Other Measures) Act
2004.
1 July 2004
7. Schedule 1,
items 10 to 12
The day after this Act receives the Royal
Assent.
8. Schedule 1,
items 13 and 14
Immediately after the commencement of
items 1 to 24 of Schedule 1 to the Medical
Indemnity Legislation Amendment (Run-off
Cover Indemnity and Other Measures) Act
2004.
1 July 2004
9. Schedule 1,
items 15 and 16
The day after this Act receives the Royal
Assent.
10. Schedule 1,
items 17 and 18
The first day of the first financial year to
start on or after the day on which this Act
receives the Royal Assent.
11. Schedule 2,
items 1 to 10
The day on which this Act receives the
Royal Assent.
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
12. Schedule 2,
items 11 to 13
The day after this Act receives the Royal
Assent.
13. Schedule 2,
item 14
The day on which this Act receives the
Royal Assent.
14. Schedule 3,
item 1
Immediately after the commencement of
sections 3 to 62 of the Legislative
Instruments Act 2003.
1 January 2005
15. Schedule 3,
items 2 and 3
The day on which this Act receives the
Royal Assent.
16. Schedule 3,
item 4
Immediately after the commencement of
sections 3 to 62 of the Legislative
Instruments Act 2003.
1 January 2005
17. Schedule 3,
items 5 to 7
Immediately after the commencement of the
Medical Indemnity Act 2002.
1 January 2003
18. Schedule 3,
items 8 and 9
The day on which this Act receives the
Royal Assent.
19. Schedule 3,
items 10 and 11
Immediately after the commencement of
sections 3 to 62 of the Legislative
Instruments Act 2003.
1 January 2005
20. Schedule 3,
item 12
The day on which this Act receives the
Royal Assent.
1 January 2003
21. Schedule 3,
items 13 and 14
Immediately after the commencement of
sections 3 to 62 of the Legislative
Instruments Act 2003.
1 January 2005
22. Schedule 3,
items 15 and 16
Immediately after the commencement of
Schedule 2 to the Medical Indemnity
Amendment Act 2003.
5 December
2003
23. Schedule 3,
items 17 to 21
The day on which this Act receives the
Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by the Parliament and assented to. It will not be expanded to
2
deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
4 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Run-off cover indemnity scheme Schedule 1
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 5
1
Schedule 1--Run-off cover indemnity scheme
2
3
Medical Indemnity Act 2002
4
1 Subsection 4(1) (at the end of the definition of claim)
5
Add:
6
Note:
Subsection (1A) extends the meaning of claim for the purposes of
7
Division 2B of Part 2 (run-off cover indemnity scheme).
8
2 After subsection 4(1)
9
Insert:
10
Notifications by practitioners may constitute claims
11
(1A) A reference in Division 2B of Part 2 to a claim includes a reference
12
to a notification by or on behalf of a person of an incident, or a
13
series of related incidents, if:
14
(a) at the time of the incident, or one or more of the incidents,
15
the person was a medical practitioner or other health
16
professional; and
17
(b) the notification is to a medical indemnity insurer or an MDO;
18
and
19
(c) at the time of the notification:
20
(i) a contract of insurance with the insurer provided the
21
person with medical indemnity cover; or
22
(ii) an arrangement with the MDO provided medical
23
indemnity cover (within the meaning of the Medical
24
Indemnity (Prudential Supervision and Product
25
Standards) Act 2003) for the person;
26
and the cover would have indemnified the person in relation
27
to any claim relating to the incident, or series of incidents, if
28
the claim had been made at the time of the notification.
29
The notification is taken, for the purposes of Division 2B of Part 2,
30
to be a claim against the person.
31
3 Application in relation to section 34ZK
32
Schedule 1 Run-off cover indemnity scheme
6 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
Subsection 4(1A) of the Medical Indemnity Act 2002 as amended by
1
this Act does not apply in relation to section 34ZK of that Act until the
2
beginning of the day after this Act receives the Royal Assent.
3
4 At the end of subparagraph 34ZB(1)(c)(ii)
4
Add "and".
5
5 Paragraph 34ZB(1)(c)
6
Omit "and the cover would have indemnified the person in relation to
7
the claim if the claim had been made at that time; and".
8
6 Paragraphs 34ZB(2)(c) and (d)
9
Repeal the paragraphs, substitute:
10
(c) a person who has ceased (temporarily or permanently) the
11
person's practice as a medical practitioner because of
12
maternity (see subsection (4A));
13
(d) a person who has ceased the person's practice as a medical
14
practitioner because of permanent disability (see
15
subsection (4B));
16
7 Subsection 34ZB(4)
17
Omit "are notified in the Gazette", substitute "in question are entered on
18
the Federal Register of Legislative Instruments".
19
8 After subsection 34ZB(4)
20
Insert:
21
(4A) A person is taken, for the purposes of paragraph (2)(c), to have
22
ceased the person's practice as a medical practitioner because of
23
maternity if and only if:
24
(a) the person:
25
(i) is pregnant; or
26
(ii) has given birth; or
27
(iii) is recovering from a pregnancy (including a miscarriage
28
or a stillbirth); and
29
(b) another person who is a medical practitioner has certified, in
30
the form approved by the HIC, that the person is pregnant,
31
has given birth or is recovering from a pregnancy, as the case
32
requires; and
33
Run-off cover indemnity scheme Schedule 1
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 7
(c) the person has ceased all practice as a medical practitioner:
1
(i) because she is pregnant; or
2
(ii) in order to care for one or more children to whom she
3
has given birth; or
4
(iii) in order to recover from the pregnancy; and
5
(d) any other requirements specified in the regulations have been
6
met.
7
(4B) A person is taken, for the purposes of paragraph (2)(d), to have
8
ceased the person's practice as a medical practitioner because of
9
permanent disability if and only if:
10
(a) the person has incurred an injury, or suffers from an illness,
11
that is permanent, or is likely to be permanent; and
12
(b) as a result of the injury or illness, the person can no longer
13
practise in the area of medicine in which he or she had (at the
14
time of the injury or illness) chosen to practise and been
15
qualified to practise; and
16
(c) another person who is a medical practitioner has certified, in
17
the form approved by the HIC, that the person:
18
(i) has incurred an injury, or suffers from an illness, that is
19
permanent, or is likely to be permanent; and
20
(ii) can no longer practise in that area of medicine; and
21
(d) the person has permanently ceased all practice as a medical
22
practitioner.
23
(4C) For the purposes of paragraph (4B)(b), if registration in respect of
24
that area of medicine is required in order to practise in that area of
25
medicine in the place where the person would have practised, the
26
person is not taken to be qualified in that area of medicine unless
27
he or she is so registered.
28
9 Subsection 34ZB(5) (paragraphs (a), (b) and (c) of the
29
definition of private medical practice)
30
Omit "; and", substitute "; or".
31
10 Section 34ZV
32
Before "If:", insert "(1)".
33
11 Paragraphs 34ZV(c), (d) and (e)
34
Repeal the paragraphs, substitute:
35
Schedule 1 Run-off cover indemnity scheme
8 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
(c) the amount of the medical indemnity insurer's premium
1
income, for the contribution year in question, that represents
2
the premium that is or will be payable for medical indemnity
3
cover provided by the contract of insurance; and
4
(d) the applicable percentage relating to that contribution year;
5
and
6
(e) the amount of the run-off cover support payment imposed on
7
the medical indemnity insurer, for that contribution year, that
8
relates to the premium that is or will be payable for medical
9
indemnity cover provided by the contract of insurance.
10
12 At the end of section 34ZV
11
Add:
12
(2) In this section:
13
applicable percentage has the same meaning as in subsection 6(2)
14
of the Medical Indemnity (Run-off Cover Support Payment) Act
15
2004.
16
premium income has the same meaning as in the Medical
17
Indemnity (Run-off Cover Support Payment) Act 2004.
18
run-off cover support payment has the same meaning as in the
19
Medical Indemnity (Run-off Cover Support Payment) Act 2004.
20
13 Section 44B
21
Omit "an affected medical practitioner", substitute "a medical
22
practitioner".
23
14 Paragraph 44B(c)
24
Before "the practitioner's", insert "if a termination date for the run-off
25
cover indemnity scheme has been set (see subsection 34ZB(3))--".
26
Medical Indemnity (Prudential Supervision and Product
27
Standards) Act 2003
28
15 Subsection 26A(9) (at the end of the definition of medical
29
practice period)
30
Add (before the note):
31
; and (c) if the practitioner:
32
Run-off cover indemnity scheme Schedule 1
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 9
(i) was engaged in medical practice (other than private
1
medical practice); and
2
(ii) was provided with medical indemnity cover in relation
3
to incidents occurring during that medical practice; and
4
(iii) is no longer engaged in that medical practice;
5
the period during which the practitioner was engaged in that
6
medical practice and in relation to which the practitioner was
7
provided with that medical indemnity cover.
8
16 Paragraph 26D(2)(b)
9
After "does not", insert ", within 28 days after providing the medical
10
indemnity cover,".
11
Medical Indemnity (Run-off Cover Support Payment) Act
12
2004
13
17 At the end of subsection 7(2)
14
Add:
15
; and (d) the amount worked out under subsection (2A).
16
18 After subsection 7(2)
17
Insert:
18
(2A) The amount referred to in paragraph (2)(d) is worked out as
19
follows:
20
Applicable rate
Net premium
1
Applicable rate
21
where:
22
applicable rate is the applicable percentage under subsection 6(2)
23
for the insurer, expressed as a decimal fraction.
24
net premium is the sum of all the premiums referred to in
25
subsection (1) reduced by the amounts referred to in
26
paragraphs (2)(a), (b) and (c) in relation to those premiums.
27
Schedule 2 Claims protocols
10 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
1
Schedule 2--Claims protocols
2
3
Medical Indemnity Act 2002
4
1 Subsection 4(1) (at the end of the definition of high cost
5
claim indemnity)
6
Add:
7
Note:
Amounts payable under the High Cost Claims Protocol are not
8
covered by this definition.
9
2 Subsection 4(1)
10
Insert:
11
High Cost Claims Protocol means the protocol (as amended and in
12
force from time to time) determined by the Minister under
13
section 34AA.
14
3 Subsection 10(1A)
15
Omit "claims in relation to".
16
4 At the end of subsection 27A(2)
17
Add:
18
; and (c) make provision for making payments on account of legal,
19
administrative or other costs incurred by MDOs and insurers
20
(whether on their own behalf or otherwise), in respect of
21
incidents notified to MDOs and insurers that could give rise
22
to claims in relation to which an IBNR indemnity could be
23
payable.
24
5 After subsection 27A(3)
25
Insert:
26
(3A) It does not matter for the purposes of paragraph (2)(c) whether
27
claims are subsequently made in relation to the incidents referred
28
to in that paragraph.
29
6 After subsection 28(1)
30
Insert:
31
Claims protocols Schedule 2
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 11
(1A) This Division also provides for the determination of a High Cost
1
Claims Protocol that can deal with other matters relating to
2
incidents covered by the high cost claim indemnity scheme.
3
7 Subsection 28(2) (after table item 4)
4
Insert:
5
4A
the High Cost Claims Protocol, and
what it can deal with
sections 34AA and
34AB
8 At the end of Division 2 of Part 2
6
Add:
7
Subdivision C--The High Cost Claims Protocol
8
34AA Minister may determine a protocol dealing with various
9
matters
10
(1) The Minister may, by legislative instrument, determine a protocol
11
(the High Cost Claims Protocol) for:
12
(a) making payments to MDOs and insurers of claim handling
13
fees; and
14
(b) making payments on account of legal, administrative or other
15
costs incurred by MDOs and insurers (whether on their own
16
behalf or otherwise);
17
in respect of claims relating to incidents in relation to which a high
18
cost claim indemnity is payable (see section 30).
19
(2) Without limiting subsection (1), the High Cost Claims Protocol
20
may:
21
(a) make provision for:
22
(i) the conditions that must be satisfied for an amount to be
23
payable to an MDO or insurer; and
24
(ii) the amount that is payable; and
25
(iii) the conditions that must be complied with by an MDO
26
or insurer to which an amount is paid; and
27
(iv) other matters related to the making of payments, and the
28
recovery of overpayments; and
29
(b) provide that this Division applies with specified
30
modifications in relation to a liability that relates to costs in
31
Schedule 2 Claims protocols
12 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
relation to which an amount has been paid under the
1
Protocol; and
2
(c) make provision for making payments on account of legal,
3
administrative or other costs incurred by MDOs and insurers
4
(whether on their own behalf or otherwise), in respect of
5
incidents notified to MDOs and insurers that could give rise
6
to claims in relation to which a high cost claim indemnity
7
could be payable.
8
(3) Paragraph (2)(b) does not allow the High Cost Claims Protocol to
9
modify a provision that creates an offence, or that imposes an
10
obligation which, if contravened, constitutes an offence.
11
(4) It does not matter for the purposes of paragraph (2)(c) whether
12
claims are subsequently made in relation to the incidents referred
13
to in that paragraph.
14
(5) The High Cost Claims Protocol may also provide for other matters
15
of a kind specified in regulations made for the purposes of this
16
subsection.
17
34AB The HIC may request information
18
(1) If the HIC believes that a person is capable of giving information
19
that is relevant to determining:
20
(a) whether an MDO or insurer is entitled to a payment under the
21
High Cost Claims Protocol; or
22
(b) the amount that is payable to an MDO or insurer under the
23
High Cost Claims Protocol;
24
the HIC may request the person to give the HIC the information.
25
Note:
Failure to comply with the request is an offence (see section 45).
26
(2) Without limiting subsection (1), any of the following persons may
27
be requested to give information under that subsection:
28
(a) an MDO;
29
(b) an insurer;
30
(c) a member or former member of an MDO;
31
(d) a person who practises, or used to practise, a medical
32
profession;
33
(e) a person who is acting, or has acted, on behalf of a person
34
covered by paragraph (d);
35
Claims protocols Schedule 2
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 13
(f) a legal personal representative of a person covered by
1
paragraph (c), (d) or (e).
2
(3) Without limiting subsection (1), if the information sought by the
3
HIC is information relating to a matter in relation to which a
4
person is required by section 39 to keep a record, the HIC may
5
request the person to give the information by giving the HIC the
6
record, or a copy of the record.
7
(4) The request:
8
(a) must be made in writing; and
9
(b) must state what information must be given to the HIC; and
10
(c) may require the information to be verified by statutory
11
declaration; and
12
(d) must specify a day on or before which the information must
13
be given; and
14
(e) must contain a statement to the effect that a failure to comply
15
with the request is an offence.
16
The day specified under paragraph (d) must be at least 28 days
17
after the day on which the request was made.
18
9 At the end of subsection 34X(2)
19
Add:
20
; and (c) make provision for making payments on account of legal,
21
administrative or other costs incurred by insurers (whether on
22
their own behalf or otherwise), in respect of incidents
23
notified to insurers that could give rise to claims in relation to
24
which an exceptional claims indemnity could be payable.
25
10 After subsection 34X(3)
26
Insert:
27
(3A) It does not matter for the purposes of paragraph (2)(c) whether
28
claims are subsequently made in relation to the incidents referred
29
to in that paragraph.
30
11 Subsection 39(1)
31
After "the IBNR Claims Protocol,", insert "the High Cost Claims
32
Protocol,".
33
12 After subparagraph 39(2)(b)(ia)
34
Schedule 2 Claims protocols
14 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
Insert:
1
(ib) if the record is required to be kept because the person
2
applied for a payment under the High Cost Claims
3
Protocol--the day on which the Protocol took effect;
4
13 After paragraph 45(1)(baa)
5
Insert:
6
(bab) subsection 34AB(1); or
7
14 After paragraph 48(b)
8
Insert:
9
(baa) amounts payable under the High Cost Claims Protocol; and
10
Other amendments Schedule 3
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 15
1
Schedule 3--Other amendments
2
3
Medical Indemnity Act 2002
4
1 Subsection 4(1)
5
Insert:
6
Federal Register of Legislative Instruments means the Federal
7
Register of Legislative Instruments established under the
8
Legislative Instruments Act 2003.
9
2 Paragraph 8(2)(d)
10
Repeal the paragraph, substitute:
11
(d) the MDO:
12
(i) was not notified of the occurrence of the incident; and
13
(ii) was not notified of any claim against or by the person in
14
relation to the incident;
15
before 1 July 2002.
16
3 Paragraph 14(d)
17
Repeal the paragraph, substitute:
18
(d) the MDO:
19
(i) was not notified of the occurrence of the incident; and
20
(ii) was not notified of any claim against or by the person in
21
relation to the incident;
22
before 1 July 2002; and
23
4 Subsection 29(2)
24
Repeal the subsection, substitute:
25
(2) Regulations that specify an amount for the purposes of
26
paragraph (1)(b) that increases the high cost claim threshold at the
27
time the regulations are entered on the Federal Register of
28
Legislative Instruments must not take effect earlier than 12 months
29
after the day on which the regulations are so entered.
30
5 Paragraph 30(1)(a)
31
Repeal the paragraph, substitute:
32
Schedule 3 Other amendments
16 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
(a) a claim is, or was, made against a person (the practitioner);
1
and
2
6 Paragraph 30(1)(d)
3
Omit "becomes aware" (wherever occurring), substitute "is first
4
notified".
5
7 Paragraph 30(1)(f)
6
Omit "the high cost claim threshold.", substitute "what was the high
7
cost claim threshold at the time the MDO or insurer was first notified of
8
the claim or the incident; and".
9
8 After paragraph 30(1)(f)
10
Insert:
11
(g) any other requirements (however described) that are specified
12
in the regulations have been met.
13
9 After subsection 30(1)
14
Insert:
15
(1A) Regulations made for the purposes of paragraph (1)(g) do not apply
16
in relation to an incident if the claim relating to the incident was
17
made before the regulations in question take effect.
18
10 Subsection 30(3)
19
Omit "are notified in the Gazette", substitute "in question are entered on
20
the Federal Register of Legislative Instruments".
21
11 Subsection 34(2)
22
Repeal the subsection, substitute:
23
(2) Regulations that specify for the purposes of paragraph (1)(b) a
24
percentage that is less than the percentage in force at the time the
25
regulations are entered on the Federal Register of Legislative
26
Instruments must not take effect earlier than 12 months after the
27
day on which the regulations are so entered.
28
12 Paragraph 34E(1)(a)
29
Repeal the paragraph, substitute:
30
Other amendments Schedule 3
Medical Indemnity Legislation Amendment Bill 2005 No. , 2005 17
(a) the claim is a claim that is or was made against a person (the
1
practitioner); and
2
13 Subsections 34F(3) and (4)
3
Omit "notified in the Gazette", substitute "entered on the Federal
4
Register of Legislative Instruments".
5
14 Subsection 34G(2)
6
Omit "notified in the Gazette", substitute "entered on the Federal
7
Register of Legislative Instruments".
8
15 Subparagraphs 34L(1)(f)(ii) and (iii)
9
Omit "already paid by the insurer", substitute "that the insurer has
10
already paid, or has already become liable to pay,".
11
16 At the end of subparagraph 34L(1)(f)(iii)
12
Add "(being other claims that were first notified to the insurer no later
13
than the time the current claim was notified to the insurer)".
14
17 Subparagraphs 43(1)(a)(ii) and (aa)(ii)
15
Omit "medical indemnity insurers and MDOs", substitute "medical
16
indemnity providers".
17
18 Paragraph 43(1)(b)
18
Omit "medical indemnity insurers and MDOs" (wherever occurring),
19
substitute "medical indemnity providers".
20
19 Paragraphs 43(2)(d) and (e)
21
Omit "medical indemnity insurers or MDOs", substitute "medical
22
indemnity providers".
23
20 At the end of section 43
24
Add:
25
(5) In this section:
26
medical indemnity provider means:
27
(a) an MDO; or
28
(b) a medical indemnity insurer; or
29
Schedule 3 Other amendments
18 Medical Indemnity Legislation Amendment Bill 2005 No. , 2005
(c) any other body that provides medical indemnity cover
1
(within the meaning of the Medical Indemnity (Prudential
2
Supervision and Product Standards) Act 2003).
3
21 Application of amendments of section 43
4
Payments of subsidy under a scheme formulated under section 43 of the
5
Medical Indemnity Act 2002 as amended by this Act may be made in
6
relation to costs incurred before the commencement of this item if:
7
(a) the payments are made to bodies of the kind referred to in
8
paragraph (c) of the definition of medical indemnity provider
9
in subsection 43(5) of that Act; and
10
(b) the costs were incurred after the commencement of the
11
Medical Indemnity Act 2002.
12

 

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