EXPLANATORY STATEMENT

 

ATTACHMENT

 

Details of the Health Legislation Amendment (Permitted Information Disclosure) Regulations 2020

 

Section 1 - Name of Regulations

 

This section provides that the title of the Regulations is the Health Legislation Amendment (Permitted Information Disclosure) Regulations 2020.

 

Section 2 - Commencement

 

This section provides for the Regulations to commence the day after the instrument is registered.

 

Section 3 - Authority

 

This section provides that the Health Legislation Amendment (Permitted Information Disclosure) Regulations 2020 are made under the Health Insurance Act 1973 (Health Insurance Act) and the National Health Act 1953 (National Health Act).

 

Section 4 - Schedules

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Schedule 1 - Amendments

 

Health Insurance Regulations 2018

 

Item [1] - section 4

 

Section 4 of the Health Insurance Regulations 2018 (the Health Insurance Regulations) provides for definitions used in the Health Insurance Regulations. This item adds new definitions to section 4 to enable the description of new prescribed authorities for the purpose of subsection 130(3A) of the Health Insurance Act.

 

Item [2] - after subparagraph 92(a)(iv)

 

Section 92 of the Health Insurance Regulations provides that certain APS employees within the Department of Veterans' Affairs are prescribed persons for the purposes of subsection 130(3A) of the Health Insurance Act. The employees must perform functions under specified laws in relation to treatment or medical treatment. This item adds the Treatment Benefits (Special Access) Act 2019 to the list of specified laws.

 

Item [3] - subparagraphs 93(1)(a)(i) and (ii)

 

Section 93 sets out prescribed authorities or persons to which information may be divulged for complaints and investigations, the circumstances in which information may be provided and information that may be provided to prescribed authorities. This item updates the list of prescribed authorities or persons. The Medical Board of Australia and each State or Territory Board of the Medical Board of Australia are replaced with the Australian Health Practitioner Regulation Agency, a National Board and each State and Territory Board of a National Board (both terms defined in section 4), for health professions which are able to render Medicare-eligible claims. This prescribes health professional boards for health practitioners other than medical practitioners, as well as the Australian Health Practitioner Regulation Agency which has a role in the registration and regulation of health practitioners under state and territory laws.

 

Item [4] - paragraph 93(2)(a)

 

This item amends the circumstances in which information may be provided to an authority prescribed in subsection 93(1). This reflects the amendments in section 93 to indicate that a patient may have complained about any registered health practitioner, rather than limiting the subject of complaints to medical practitioners.

 

Item [5] - subsections 93(3) and (5)

 

This item amends the circumstances in which information may be provided to an authority prescribed in subsection 93(1). This reflects the amendments in section 93 to indicate that a patient may have complained about any registered health practitioner, rather than limiting the subject of complaints to medical practitioners.

 

Item [6] - subsection 93(5)

 

This item amends the circumstances in which information may be provided to an authority prescribed in subsection 93(1). This expands the scope of complaints and investigations for which information may be provided as these may no longer relate to the rendering of services. This reflects the fact that some health practitioners may not render services personally but still be subject to a relevant complaint.

 

Item [7] - paragraphs 93(6)(a) and (b)

 

This item amends the circumstances in which information may be provided to an authority prescribed in subsection 93(1). This reflects the amendments in section 93 to indicate that a patient may have complained about any registered health practitioner, rather than limiting the subject of complaints to medical practitioners.

 

Item [8] - subsection 93(7)

 

This item amends the circumstances in which information can be provided to an authority prescribed in subsection 93(1) to include if a patient has complained to the Chief Executive Medicare about a health practitioner. This ensures health practitioners other than medical practitioners are included.

 

Item [9] - paragraph 93(7)(b)

 

This item provides that information that may be provided in relation to a complaint relates to health practitioners and is not limited to medical practitioners.

 

Item [10] - subsections 93(8) and (9)

 

Subsections 93(8) and (9) detail the information that may be provided relating to a service or relating to a patient. To capture the full range of health practitioners who may provide Medicare services, these subsections provide that information may relate to health practitioners not simply medical practitioners, including if the health practitioner's relationship with the service was supervisory or requesting. New subsection 93(9A) expands the circumstances in which information relating to a patient may be disclosed, if the health practitioner was involved in the service other than rendering it and is subject to a complaint.

 

Item [11] - subsection 93(10)

 

This item provides that subsection 93(9A) is included in addition to subsection 93(9) as purposes for which information relating to a patient can be provided.

 

Item [12] - at the end of subparagraphs 93(10)(f)(i) and (ii)

 

This item provides that all of the information in paragraph 93(f) should be provided if the patient is not a permanent Australian resident.

 

National Health Regulation 2016

 

Item [13] - section 5

 

Section 5 of the National Health Regulation 2016 (the National Health Regulation) provides for definitions used in the National Health Regulation. This item adds new definitions to section 4 to enable the description of new prescribed authorities.

 

Item [14] - after Part 4

 

This adds new Part 4A to the National Health Regulation to prescribe authorities to which information can be divulged for the purposes of paragraph 135A(3)(b) of the National Health Act 1953.

 

Section 11A sets out prescribed persons to whom information may be divulged in relation to treatment provided to veterans, the circumstances in which the information may be provided and the information that may be provided to these prescribed persons. In this case, certain APS employees within the Department of Veterans' Affairs are prescribed people to whom information may be disclosed. The employees must perform functions under specified laws in relation to treatment or medical treatment, and the information that may be provided is information that would enable the employees to perform those functions.

 

Subsection 11B(1) sets out prescribed authorities and persons to whom information may be divulged in respect of complaints and investigations in relation to health practitioners. It also sets out the circumstances in which information may be provided and the information that may be provided. The prescribed authorities are the Australian Health Practitioner Regulation Agency, a National Board and each State and Territory Board of a National Board (both terms defined in section 5, for health professions which are able to render Medicare-eligible claims), the Health Care Complaints Commission of New South Wales and the Office of the Health Ombudsman of Queensland. Prescribed persons are certain APS employees within the Department of Veterans' Affairs.

 

Subsection 11B(2) to subsection 11B(6) enable information to be disclosed where a person has complained to the Chief Executive Medicare about a health practitioner, and the Chief Executive Medicare reasonably believes that the complaint should be referred to the authority for possible investigation. Information may also be provided where a prescribed authority tells the Chief Executive Medicare that a person has made a complaint to the authority about a health practitioner, or if the health practitioner is the subject of an investigation by the Chief Executive Medicare. Information may only be provided to a State or Territory authority if the health practitioner is, was, or is applying to be registered in that State or Territory or is practising in that State or Territory.

 

Subsection 11B(7) to subsection 11B(11) detail the information that may be provided relating to a health practitioner, service or patient. The information which may be provided about a health practitioner includes name, address, identifying number and information about investigations by the Chief Executive Medicare. Information in relation to a service or to the supply of a pharmaceutical benefit or other goods may also be provided if the Chief Executive Medicare reasonably believes this is relevant to the complaint or investigation. The information which may be provided about a patient includes name, contact information, sex, date of birth, medicare number and if the person is not a permanent Australian resident, certain information in relation to their entry to or expected departure from Australia, and their country of residence.

 

Section 11C provides professional disciplinary and regulatory bodies for the purposes of subparagraph 135A(5C)(c)(i). The professional disciplinary and regulatory bodies are those mentioned in subparagraphs 11B(1)(a)(i) to (v).

 

 

Statement of Compatibility with Human Rights

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

 

Health Legislation Amendment (Permitted Information Disclosure) Regulations 2020

This Disallowable Legislative Instrument is 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 Disallowable Legislative Instrument

Section 135A of the National Health Act 1953 (National Health Act) and section 130 of the Health Insurance Act 1973 (Health Insurance Act) provide for the limited circumstances in which information acquired by officers under those Acts can be divulged. Section 135A(3)(b) of the National Health Act and section 130(3A) of the Health Insurance Act allow for information obtained under the Acts to be divulged to a person or authority if prescribed in the Regulations.

 

The Health Legislation Amendment (Permitted Information Disclosure) Regulations 2020 (the Regulations) amend the National Health Regulation 2016 and the Health Insurance Regulations 2018 (made under the National Health Act and the Health Insurance Act respectively) to designate prescribed authorities in accordance with the secrecy provisions of the Acts. Certain information may be divulged to these prescribed authorities in the circumstances as detailed in the Regulations.

 

The Regulations, with the Health Legislation Amendment (Data-matching and Other Matters) Act 2019, form a legislative package that gives full effect to a scheme of permitted data matching to be conducted by the Department of Health for Medicare compliance purposes.

 

Right to Health

The Regulations engage the right to health. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health, which may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs, and conditions necessary for the realisation of the highest attainable standard of health.

 

This Regulations assist with the progressive realisation of the right of all individuals to enjoy the highest attainable standard of physical and mental health by supporting the integrity of Australia's medicare programs. The Regulations permit disclosure of certain information, in certain circumstances, to prescribed authorities, in order to facilitate relevant compliance investigations.

 

In particular, information is permitted to be disclosed to the Department of Veterans' Affairs, and to state, territory and national health professional boards and complaint bodies. The Department of Veterans' Affairs administers various programs relating to treatment of veterans, and the Australian Health Practitioner Regulation Agency and the health professional boards are responsible in partnership for regulating Australia's health practitioners. The circumstances in which information may be disclosed relate to treatment provided to veterans, and health practitioner complaints and investigations. For example, information may be relevant to be disclosed to the Department of Veterans' Affairs where there are concerns about provider compliance in relation to payments made for treatment to veterans. Information may be relevant to be disclosed to a health professional board when there are concerns in relation to a health practitioner's practice.

 

The Regulations are very prescriptive as to the type of information that may be disclosed, and the circumstances in which this may occur, in order to minimise information sharing when it is not necessary. However, enabling proper disclosure of potential health and/or payment integrity concerns to the relevant regulatory bodies will ensure the correct bodies are investigating. This is likely to improve investigations of health professionals who may be practising inappropriately, potentially resulting in better patient safety. In addition, reducing incorrect payments means that more money will be able to be reinvested in new services and medications for the Australian community, which will improve access to medicare programs for a greater number of Australians.

 

Right to Privacy

The Regulations engage the right to privacy, by providing for the disclosure of certain information, potentially including health information. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides no one shall be subjected to arbitrary or unlawful interference with their privacy, family, home, correspondence, nor to unlawful attacks on their honour and reputation. This right to privacy can be limited, however, to achieve a legitimate objective where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be consistent with the ICCPR and be reasonable in the circumstances.

 

The Regulations permit disclosure of certain information, in certain circumstances, to prescribed authorities, in order to facilitate relevant compliance investigations.

 

In particular, information is permitted to be disclosed to the Department of Veterans' Affairs, and to state, territory and national health professional boards and complaint bodies. The Department of Veterans' Affairs administers various programs relating to treatment of veterans, and the Australian Health Practitioner Regulation Agency and the health professional boards are responsible in partnership for regulating Australia's health practitioners.

 

The circumstances in which information may be disclosed relate to treatment provided to veterans, and health practitioner complaints and investigations. For example, information may be relevant to be disclosed to the Department of Veterans' Affairs where there are concerns about provider compliance in relation to payments made for treatment to veterans. Information may be relevant to be disclosed to a health professional board when there are concerns in relation to a health practitioner's practice.

 

The Regulations permit the sharing of information but do not mandate this. The Regulations are very prescriptive as to the type of information that may be disclosed, and the circumstances in which this may occur, in order to minimise information sharing when it is not necessary. Information is only shared where there is a complaint or concern which should be shared with the appropriate regulatory body. This will ensure the correct body is investigating payment integrity concerns or health professional practice concerns. The secrecy provisions of the Health Insurance Act and National Health Act also prohibit and contain penalties for misuse of information.

 

This carefully regulated information sharing is likely to improve investigations into health professionals who may be practising inappropriately, potentially resulting in better patient safety. In addition, reducing incorrect payments means that more money will be able to be reinvested in new services and medications for the Australian community, which will improve access to medicare programs for a greater number of Australians.

 

As a result, any limitations on the right to privacy are necessary, reasonable and proportionate to the legitimate objective of the Regulations.

 

Conclusion

To the extent that the Regulations may limit human rights, that limitation is reasonable and proportionate to the purpose of the Regulations to ensure the integrity of Medicare and consequently improving ensuring access to publicly subsidised health services which are clinically effective and cost-effective.

 

Greg Hunt

Minister for Health