Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I seek leave to move amendments (1) to (7) on sheet 5987 standing in my name. I will perhaps give a brief explanation of that. Notwithstanding your explanation that some of these matters may be unresolved, Minister, I certainly had the understanding that my amendments (1) to (7) were, in a sense, non-controversial. You may wish to check that, but that is how I understood it, which is why I am seeking to move them in that way.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Is leave granted?

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

No, it is not, because the Greens actually disagree with some of the amendments. We support some of the amendments, but not all of the amendments. I can indicate which ones we can support and which ones we cannot.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I could divide the question at the end, but it may be just as quick to go through them as they are on the running sheet. So I suggest you move (1) and (2) together, Senator Scullion, and then move down the running sheet.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 5987 standing in my name:

(1)    Schedule 1, item 2, page 3 (line 23), at the end of paragraph 129AAD(1)(b), add:

   ; and (c)    has taken reasonable steps to consult with a relevant professional body about the types of documents that contain information relevant to ascertaining whether amounts paid in respect of professional services of the same kind or kinds as the service or services referred to in paragraph (a) should have been paid.

(2)    Schedule 1, item 2, page 3 (after line 30), after subsection 129AAD(1), insert:

     (1A)    In this section:

relevant professional body means a body declared by the Minister to be a relevant body for the purpose of this section.

The first of these two amendments deals with supporting documentation. The purpose of the amendment is to require Medicare Australia to work with the professional peak bodies, to design and develop a process that would capture relevant factual information specifically tailored to a medical specialty or medical practice, which could then be submitted, in the event of a Medicare compliance audit, to substantiate Medicare claims. I am probably addressing many of my remarks to Senator Siewert. As I spoke to many of the organisations—the AMA, the college of psychiatrists, the College of General Practitioners—there seemed to be a constant theme: ‘If only Medicare would come and talk to us about the sort of documentation we could keep to ensure that we met our auditing requirements, that would be something we would do. But we don’t keep medical records to meet any auditing requirements from Medicare; that’s not why they are kept, so they are probably going to be meaningless to them.’ So all of them indicated that, if Medicare came and sat down with them, it would be quite easy and they would be quite happy to talk sector by sector about what sort of information they could keep to assist Medicare in dealing with that. The reason I speak directly to you, Senator Siewert, is that it goes to the heart of the amendment about requiring the electronic medical records. What I am saying is that this is perhaps less specific but it gives the opportunity, sector by sector, to sit down and provide a suite of information, which they may keep as an addendum but specifically for auditing arrangements of Medicare.

The second aspect of the amendment dealing with supporting documentation is that at present the proposed legislation only requires that Medicare discuss internally the types of documents or evidence that is required, and specifically states that Medicare would not reveal what evidence is required. Clearly, I think that is a situation that has compounded the circumstance where Medicare is saying, ‘We want to audit you’, but you do not even know what sort of arrangements you need to keep in place.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Perhaps I will address my question to Senator Scullion on this issue. Do you intend that this process would be for whenever they are formulating a new process for auditing a particular type of service, or for each investigation?

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

The idea would be to do it sector by sector, because the needs of each sector are somewhat different. For example, the psychiatry sector has different concerns, if you like, than some of the other sectors, and it would be simply by agreement; it would not be case by case. With respect, I felt that, had we an opportunity to talk about this, the situation would have been a little different with respect to one of the amendments that you put forward, but I suspect we are going down the same path. I did not want to make this process far too onerous. So, rather than saying, ‘You have to do these things with every single audit’, we simply want to put in place, with each of the sectors, a process whereby they would know that they are keeping this specific data so that, when Medicare comes knocking on the door or whatever, that is the data they are keeping for Medicare and it is not going to include things that would cut across the provisions of privacy and those relationships. But that would have to be done sector by sector. That was the intent.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

That gives me some comfort, because we were concerned that the intent here was that this consultation process would be required before each investigation. That would not be appropriate because it would allow a professional body to influence the CEO. So you have allayed my concerns somewhat by saying this would be the beginning of the process. I note that it is only about consulting. They do not have to kick off on the form; they have to be consulted. Is that a correct understanding?

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

It certainly is the intent that this is done just once, and it is an agreement. It is not about ticking the box or anything to do with the single audit. It is about an arrangement that recognises the peculiar sensitivities within each of the sectors. It is to be done once so that at least if we ask for some compliance we are going to know that that is a requirement now, but that is through a consultation process that may be put in regulations at some later stage. One would hope that it is simply an informal process that is agreed to at this stage.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We do understand that there have been discussions on amendments (1) and (2), and on that basis we will not oppose them. I understand, similarly, there have been discussions on amendments (3) to (5). We did understand that there was a different position on amendment (6). Instead of the wording indicated in the opposition’s amendment, the government would prefer the wording, ‘The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.’ I am not sure we got to an agreed position. We would prefer that wording to the wording that is in the opposition’s amendment. On that basis, we will not be agreeing to opposition amendment (6), unless the opposition wants to amend its wording to accord with what I have just indicated. I understand that our position is to agree to amendment (7), which relates to schedule 1 item 2. We also indicate that we will not oppose amendment (8).

More broadly, we understand that the opposition supports the intent of the bill, and on the basis which I have outlined we are happy to support the majority of the amendments which have been negotiated in good faith. However, as the process has been brought on earlier than we had anticipated—the discussions I understand have not quite concluded on amendment (6)—that does leave us in a bit of a quandary and we would prefer to maintain our opposition to that amendment.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Green amendments (1) and (2) on sheet 5963 together:

(1)   Schedule 1, item 2, page 3 (line 32), omit “If”, substitute “Subject to section 129AADA, if”.

(2)    Schedule 1, item 2, page 6 (after line 7), after section 129AAD, insert:

129 AADA  Additional requirements for personal clinical records

When section applies

        (1)    This section applies if, in relation to a decision under section 129AAD to require a person to produce or copy a document or an extract of any document:

             (a)    the Medicare Australia CEO; or

             (b)    the medical practitioner referred to in paragraph 129AAD(1)(b);

knows or believes on reasonable grounds that the document, extract or copy contains clinical details relating to an individual.

What happens

        (2)    Any decision to require the person to produce or copy the document or an extract of the document:

             (a)    may only be made by the CEO; and 

             (b)    must be made with oversight by qualified medical advisers.

        (3)    Before requiring the person to produce or copy the document or an extract of the document, the CEO must cause a Privacy Impact Assessment to be prepared, which must address:

             (a)    whether there is any other way to obtain the information being sought; and

             (b)    whether the requirement to produce the document is in the public interest; and

             (c)    whether the information being sought could be gained using de-identified records without undermining the integrity of the audit process.

        (4)    Before requiring the person to produce or copy the document or an extract of the document, the CEO must take all reasonable steps to advise the individual, or the individual’s representative, that his or her personal clinical records are to be accessed for the purpose of a compliance audit.

        (5)    If the individual, or the individual’s representative, objects to the use of the individual’s personal clinical records:

             (a)    the individual, or the individual’s representative, must be given the opportunity to provides reasons for that objection; and

             (b)    the CEO must review the decision to seek information by requiring the person to produce or copy the document or an extract of the document; and

             (c)    if the CEO decides to proceed to require the person to produce or copy the document or an extract of the document—the patient must be provided with written reasons for that decision.

(3)    Schedule 1, page 10 (after line 19), after section 129AAJ, insert:

129AAK  Routine audit requirements

        (1)    The regulations may prescribe requirements for medical practitioners to submit routine records of consultations online for the purposes of Medicare audit processes, including the following:

             (a)    the purpose of the consultation;

             (b)    the service or services rendered;

             (c)    length of time;

             (d)    referrals made.

        (2)    The regulations may prescribe a timeframe for compliance with the requirement to submit records, reflecting a general intention that records will be submitted online during each consultation as a matter of course.

        (3)    The Minister must take all reasonable steps to ensure that regulations for the purposes of subsection (1) are made before 1 July 2010.

I will try to be quick, as I did talk about these amendments in my speech on the second reading. Our concern is about making sure that patient confidentiality is maintained. The first amendment is fairly simple. It removes the word ‘if’ and replaces it with ‘Subject to section 129AADA, if’, which is contained in amendment (2). This means that the CEO should indicate the additional requirements for clinical and patient records. These additional requirements for patient records include defining reasonable concerns in order to investigate and having oversight of, as I articulated earlier, the medical advisers, not just the bureaucrats. It provides alternative ways to get the information. It deals with the public interest and the identification of records. It deals with advising individuals that their records are about to be used in an audit. I understand there is a debate about whether they should be told because there are issues around privacy for the medical practitioner. However, when we reviewed those issues, on balance we came down on the side of the patients and believed patients had a right to know that their records were being accessed. It deals with a case where a patient objects to their records being assessed. These issues relate to amendments (1) and (2) and I did articulate the reasons for these in my speech on the second reading.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Briefly, we will not be supporting the Greens amendments. We think they are fundamentally aligned with the opposition’s. It is unfortunate that we did not have the opportunity to discuss this, and I apologise for that. Regarding the contentious area of advising the individual, we spoke to a number of people involved in this area. When you ring and advise an individual it is very difficult for them not to leave with a question. For example, whether it is auditing a doctor for Medicare compliance or whether it is a probity issue with the doctor or whether they have been malpractised, you are unable to provide that information to the individual and so they very well be left in doubt.

I have been informed that a couple of processes exist at the moment. One is that there is a professional body that can look into the activities and behaviours—the standards—of practitioners in a clinical sense. The other is the legislative process, which we alluded to, where you can see the records et cetera. Currently, neither of those informs the individual. I have a lot of confidence in that process, but I have absolutely no confidence in the process that the government previously had in the legislation. I understand the government has now agreed to amend its position. It is for those reasons particularly that we will not be supporting your amendments. They are good amendments, but we think that our amendments cover the situation more comprehensively.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Perhaps the Greens can understand, partly, the predicament the government is in, in dealing with a bill that it did not want to deal with today at this particular hour. If I frame my comments in that way it may assist a little bit, but it will not assist us to support the Greens amendments, unfortunately.

We have, in the short time available, had a look at the issue. We think we are grappling with two matters. One is that the opposition are seeking to ensure that we provide sufficient and meaningful consultation around the changes—and we accept that—and the second matter is the Greens issues of privacy. The issue of privacy was one of the critical and fundamental issues that were developed. I can say this with some experience in this portfolio, because when this area was first mooted as being in need of compliance measures the Privacy Commissioner came on board very early in the piece to deal with how the process would actually work in the legislation.

Medicare Australia deals with a range of information about providers and medical services. It deals with that in a sensitive way and it ensures that its protections around privacy are of the highest standard—so much so that last year they won an award from the Privacy Commissioner for the way they dealt with privacy in handling a range of issues.

If you look at Medicare Australia you will find that when people put in for an item number it provides for a particular service. On occasion, sufficient information is able to be gained from that to identify what that service might be. That may have clinical implications. Medicare Australia has always recognised the sensitivity of the material and has maintained all of the matters that you would expect in order to ensure privacy and confidentiality for patients. And of course the onus is on providers as well to ensure that when they deal with medical records and when they store their medical records at the practices—or through whatever process they put in place—they similarly meet high standards. I think there is an expectation from the population more broadly that that is done.

This bill has been drafted so that a provider can provide documents in the easiest and most convenient way but the bill does protect patient privacy. If you turn your mind to how the process works, submitting a claim will sometimes require documents about a medical service. The government believes that the bill provides a sensible way of dealing with sensitive information. You could imagine the enormous amount of information that Medicare Australia maintains when it pays a bill. It does not simply pay a bill; it provides information on a particular item number that the provider then seeks to get a rebate claim for. The person who is dispensed the particular service by the medical provider will then claim that particular item number from Medicare—or alternatively it will be bulk billed. But Medicare Australia does understand that in all that information there is a significant requirement to maintain the confidentiality and privacy of the patients and the providers. It has demonstrated, time and time again, that it does this in the most sensitive way possible.

What we cannot do in this area is prescribe a particular way that this should be transacted. Particularly with regard to compliance this will depend on the nature of the audit and the type of information that is sought in order to substantiate a particular claim. I am sure, Senator Siewert, that you sat on the committee and heard from Medicare Australia. Unfortunately I did not, but I can assume that they would have explained to you that they only seek the minimum amount of information necessary to substantiate the particular claim. If the providers can provide that without going to clinical records that is fantastic. They can maintain a whole range of information that can be provided to Medicare Australia. On occasion, depending on the particular item number, and depending on the type of records that the provider maintains, it will switch to the private provider to meet the requisite audit by saying: ‘Yes, we provided this item number. We provided it to this patient. Here is our record’—whatever that record or document might be—’to substantiate that claim.’

On occasion it will be sensitive, but Medicare has demonstrated time and time again that it will maintain that information with a full understanding of the privacy requirements. That is why the Privacy Commissioner was involved throughout the whole process. I hope that goes some way to providing some explanation as to why this government takes this issue very seriously and understands the position that you are advancing. We agree with the principle completely—that privacy for patients is one of those areas that we have to deal with. It is a Privacy Act requirement but it is more than that for Medicare Australia. I think that Medicare has demonstrated that they want to ensure that patients and providers have confidence in providing that information, knowing that Medicare Australia will keep it confidential.

But keep in mind that this is about compliance and an audit process for the particular provider that is being audited. That is why, as I have indicated, we cannot agree with your amendments as put. I have gone on a little bit longer than I should have to explain that it is a principle that we can all agree with.

Question negatived.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I seek leave to move opposition amendments (3) to (6) on sheet 5987 together.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am willing to agree to leave as long as the questions are put separately. I indicate that I will be voting differently on different amendments.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I can put the questions separately by request.

Leave granted.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I move:

(3)    Schedule 1, item 2, page 4 (line 14), omit “request”, substitute “written request”.

(4)    Schedule 1, item 2, page 5 (after line 19), after paragraph 129AAD(8)(b), insert:

           (ba)    specify the information relevant to ascertaining whether amounts paid in respect of each such service should have been paid; and

(5)    Schedule 1, item 2, page 5 (after line 31), at the end of subsection 129AAD(8), add:

        Note:    For the purpose of paragraph (8)(ba) the notice will include the reason for the CEO’s concern about the payment and explain the factual issue that the person is required to substantiate.

(6)    Schedule 1, item 2, page 6 (after line 7), at the end of section 129AAD, add:

      (11)    Notices to produce documents issued under this section will not include requests for information about whether a particular service was clinically relevant.

Minister, when you rose a moment ago you indicated that there was perhaps some agreement about some words in amendment (6). My feeling is that, after having as much of a look in these circumstances as I can, we had agreed to that. I understood that there was some change of wording and that we had agreed to. I was hoping that perhaps one of my minders could sneak across and sort of check on that. I do not think that that is a problem. In fact, since you have stood and spoken to most of those, as I understand it it was only the review of decisions to claim amounts as debts that was the problem. The reason that I am speaking briefly to that is so that if people who are giving us some assistance want to clarify that while we are discussing amendments (3) to (6) that might be very useful.

Amendments (3) to (6) are about notices to produce documents. Prior to the CEO of Medicare issuing a notice to produce documents that may contain health information within the meaning of the Privacy Act, the CEO of Medicare must first provide an opportunity for the medical provider or the authorised entity to respond to a written audit. This is just part of a process to ensure that we are articulating every opportunity for providers to voluntarily provide information to Medicare.

We initially tried to exclude all documents that might be covered under the Privacy Act from being requested by a Medicare audit. Unfortunately, we were informed—rightly, and thanks to the government for the assistance—that that would probably invalidate the audit process. So this amendment essentially inserts an additional step in the audit process. Upon establishing a reasonable concern—in other words, it is not a random audit—about a provider’s Medicare claim, the CEO of Medicare must allow the provider sufficient opportunity to respond to a written request for factual substantiating evidence as identified through the consultative process outlined in the amendment that I have just spoken of. In time, that will obviously get better, because the provider will understand what they are providing and Medicare will know that they have agreement about some factual processes that are being requested. The CEO of Medicare can only issue a notice to produce documents, including patient health records, if the issue remains unresolved through the supply of factual information.

The second part of that amendment says that any notice to produce documents issued by the CEO of Medicare must specify both the claims that are being audited as well as the factual information required to substantiate the notice request. This amendment will require Medicare to clearly identify what issues are being investigated and what specific information is required to substantiate the claim. Much of the feedback we had was that when people are carrying out an audit, it is often a fishing claim. ‘Just give us all the information you’ve got, and we’ll sort it out.’ We think it is appropriate that they should have to say, ‘These are the claims that we’ve got a problem with and these are the sorts of bits of information that you can provide to us that are going to give us some satisfaction.’ All privacy safeguards introduced through government amendments to the act must be applied to all documents containing patient health records that may be received through the notice to produce documents.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will provide an explanation. As I understand, what occurred in relation to amendment (6) is that the agreement was that if you agree to the words that I read into the transcript then you could seek to amend your amendment (6) to adopt that wording. If you sought to do that, we would be in a position to agree to that amendment to the amendment, if that is the correct wording or phrase that I should be using. Then we would be able to proceed on that basis. If that reflects the undertakings that we have given, then we will honour them. If it also reflects the agreement to which we arrived at, then we will similarly honour that. But you can accept that I am flying a little blind here in respect of the matter.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to make two indications. We do not support amendment (6) as it is. Perhaps the minister could repeat the words that he thinks that the government can agree to. That would be appreciated, because that would help us reach some decision over amendment (6) in particular.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Going to amendment (6), I want to make sure that I can identify the exact provision. It would be on sheet 5987. If we turn over the page, amendment (6) says:

(6)    Schedule 1, item 2, page 6 (after line 7), at the end of section 129AAD, add:

From there, the existing words are:

Notices to produce documents ...

We would want to substitute this phrase: ‘The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.’ That is in distinction from the current words, which are:

Notices to produce documents issued under this section will not include requests for information about whether a particular service was clinically relevant.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I saw that Senator Scullion was about to speak. Perhaps he could make his comments while I think about what the minister has just said.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Scullion, are you going to move that as an amendment to no. 6?

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I have the words that we are about to circulate; in fact, I have stolen the words of someone who is writing the amendment down to be circulated. I thought that, if I could read it out, at least Senator Siewert might then have some clarification. The words to insert are:

The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.

In other words, this is not about whether you are good at being a doctor; this is all about the fraud aspect of it. So it is just ensuring that Medicare does not go into an area that was not intended.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The import of that would be that the CEO ensures that they deal with administrative matters, not clinical issues. They will not be called upon to determine. We started with this compliance legislation some time ago. It is about ensuring that it would be maintained in the administrative field and that Medicare would not be making clinical decisions about the information or judgments on whether or not it is clinical information. I am looking to the adviser and I am getting a nod, so that is as I understand it.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I do recall that we did talk about this during the Senate inquiry. The process that we are dealing with is separate, so one presumes that that is to enable the two processes to be separate. There is not an understanding that that would not be dealt with under another process if that were felt to be or deemed appropriate. Perhaps I could confirm that with both the proposer of the amendment and the government. If that is what they understand, that would satisfy me.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I need some clarification as well. Someone must move the amendment. Are you replacing amendment (6) with those words or are you amending the amendment? I also need to know who is moving that amendment.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I understand, Chair, that Senator Scullion will move that amendment and the amendment will be deleting the words in his amendment and replacing them with other words.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

by leave—I move:

Schedule 1, item 2, page 6 (after line 7), at the end of section 129AAD, add:

      (11)    The CEO may not develop a reasonable concern under this section about the clinical relevance of a particular service.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that amendments (3), (4) and (5) and amended amendment (6) moved by Senator Scullion be agreed to.

Question agreed to.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I move Family First amendment on sheet 5975:

(1)          Schedule 1, item 2, page 8 (lines 13 to 15), omit subsection 129AAG(7), substitute:

               (7)           Where a document has been produced to an employee of Medicare Australia who is a medical practitioner, this section does not authorise an employee who is not a medical practitioner to exercise powers under subsection (2) in relation to the document.

This amendment is intended to protect the handling of a patient’s medical records. At the moment, documents containing patient clinical details that are provided to the medical practitioner in Medicare Australia can be handled by non-medical employees. Clause 129AAG(7) permits an administrative officer to inspect those documents and to make and retain copies of these confidential patient records. My amendment would ensure that, where a document containing clinical details is provided to a medical practitioner who is an employee of Medicare Australia, only a medical practitioner in Medicare Australia could handle that clinical information.

The government will probably say, ‘This stifles the process a bit from here,’ but this requirement that I am putting forward is the same requirement that the parliament imposed for the handling in Medicare Australia of pathology records that contain clinical details relating to a patient under section 23DKA(7)(b) of the Health Insurance Act 1973. So maybe the advisers can have a look at that one. For the same reasons, the same principle should be applied to these other records—the patient’s private clinical records. This protects patient privacy, and the same requirement should be in place in relation to the handling of documents or extracts of documents containing details relating to an individual. I move this amendment so that other senators can think hard about the principle this parliament has already imposed for the handling of patients’ pathology records that contain clinical details. I urge senators to support this amendment.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

We will support this amendment. As Senator Fielding indicates, the government may wobble in the margins, but the amendment in effect ensures that there is some clarity around the protection of any records while they are in the care of Medicare. We say that there is a medical practitioner and you have basically thrown a fence around it to specify who else apart from the medical practitioner can get access to the records and in what circumstances. I think that is quite reasonable. We will be supporting this amendment.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There might be a pointer in Senator Scullion’s response, but Senator Fielding should understand that the amendment he is seeking to progress would prevent necessary filing and administration tasks such as the secure storage of documents. It would be administratively unworkable for the one individual who receives the document to keep possession of it permanently. There is the question of what would happen if that person then went on sick leave, took long-service leave or shifted employment. The amendment would also require trained medical practitioners to perform routine administrative tasks which are best undertaken by trained auditors. We would be giving the administrative tasks that auditors do—and are well trained to do—to doctors. It would take up a significant amount of their time for little gain. We do not want our medical workforce performing administrative tasks when they could be providing health services or sharing their expertise.

I understand that Senator Fielding has likened this to the pathology position. I have a recollection of that issue; I dealt with it at that time. I am not sure the advisors are familiar with it. When you bring on a bill to be debated with little or no notice, you cannot expect all of the relevant advisors to be here, able to answer all of your questions and deal with your amendments in the comprehensive way they should be. It would be absurd to expect that. This bill was not in the range of bills we would have ordinarily dealt with this side of Christmas.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

Starting date of 1 January 2010.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We would have expected to deal with it if we had sufficient time and had dealt with the range of other urgent bills. Usually, with a day’s notice on the red, all the relevant advisors can be here.

I got a helpful interjection from Senator Cormann, who always tends to provide helpful interjections. I indicated, and Senator Cormann seems to have missed this again, that with relevant notice we can marshal relevant advisors to provide input into these debates.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

We offered for you to do it tomorrow—you know that.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Senator Cormann bleats again about how he—not I—sought to reorganise the program. Senator Fielding, you have agreed to that reorganisation. I do not think you can walk away from that. You have perhaps sought to arrange the program to suit your own circumstances or position. I do not think you can be critical of the government if it cannot provide a response in the short time that you have made available. You have also been critical of the government for not managing the program—well, you are managing it now. Senator Fielding is now seeking to manage the government’s program by agreeing with the opposition. Senator Fielding might want to turn his mind to managing his way out of a wet paper bag. It was his decision to bring this on with little or no notice, expecting us to be able to deal comprehensively with the amendments. As a government, we will manage as best we can. I have indicated our position. That is the advice we have to date. It has not been finalised, but we do understand that we have a broad agreement.

As for your amendment, Senator Fielding, I can only indicate that the principles may be there but I cannot agree to it. On face value, it does not look like a sensible amendment, and I understand it was not in the committee’s recommendations—although I am happy to be corrected. It came from you. I understand that you are genuinely trying to provide effective input into the legislation and that you have at heart the best interests of both the providers and the patients. But in this instance we do not see any merit in the amendment.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

It is always interesting watching Joe on the run.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order! Senator Fielding, you must refer to a senator by their job title.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Sorry. From my recollection, Minister, you have had this amendment for weeks. I am sure your advisors are reasonably senior, and I am finding it very hard to understand—

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

He’s playing games.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I will be real with you. You do not even have the decency to look at one of the amendments to this bill. Then you come in here and say, ‘It’s because you’ve rearranged the business.’ You turn things on a pinhead in here and expect me to follow, and I do. When something happens that you do not like, you do not have a clue what to do. This amendment is nearly identical to what has been passed before. It is a disgrace that you are not standing up for patient’s records. They are worried about their privacy. They are worried about their own clinical needs and not being seen by someone who is qualified. It is a disgrace that you are coming in here using as an excuse some sort of problem with rearranging the business. Frankly, you have not been able to arrange the business. You could not arrange the business out of a wet paper bag.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order! Senator Fielding, you must address the chair.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Sorry, Chair. I do get very concerned. We have seven groups of amendments, and this amendment has been out for some time. You would have thought they would be quite okay to work on this quickly. It is a very simple amendment. Then they come in here saying, ‘Look, you’ve reordered the business on us; we don’t know what’s going on.’ The reason we have had to reorder it is that you are, Minister, proving incompetent to do so. Fifty days next year—we will be in the same position—

I am sure that during the dinner break the minister in charge tonight will have had a bit more time to go through the issue at hand. As I said, this amendment was put out weeks ago, so there has been plenty of time for the government to look at this issue. I am also advised that the words are very similar to the requirement that this parliament imposed for handling Medicare Australia pathology records.

To help those who may be listening, the amendment moved by Family First is intended to make sure that patients’ medical records are handled by appropriate people, not by non-medical employees. The amendment would ensure that where a document containing clinical details is provided to a medical practitioner who is an employee of Medicare Australia only a medical practitioner in Medicare Australia can handle that clinical information. This is a very similar requirement to that which is in place for Medicare Australia, under paragraph 23DKA(7)(b) of the Health Insurance Act 1973, with regard to pathology records that contain clinical details relating to patients and, for that reason, should be applied here.

I hope that the response from the minister will be focused more on the issue than on how to manage the chamber. I am happy to go there any day of the week, but let us try to stick to the debate if we can.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I do have advice in relation to the amendment. The provision within the Health Insurance Act 1973 that relates to pathology, specifically section 23DKA , allows the CEO of Medicare Australia to compel the production of entire pathology records. These provisions do not have a requirement that there be a reasonable concern about the accuracy of a Medicare payment. They operate, quite simply, to require a person to produce entire pathology records within seven days of receiving a request. Section 23DKA states that only a medical practitioner employed by Medicare Australia may make and retain copies of the documents produced by a pathologist. It does not limit who may handle or inspect the documents for administrative purposes. The bill that is currently before the Senate does not allow the Medicare Australia CEO to request the production of whole documents and contains additional privacy protections, including a limitation on the circumstances in which documents may be requested.

To begin with, the clause dealing with pathology relates to producing the whole record, whereas this instance is quite a different circumstance. Here we are seeking from the provider only those documents that they want to provide to substantiate the claim. The amendment that Senator Fielding has moved would have a significant impact in that it would limit all use and administration of a document to medical advisers. That would mean Medicare would have to have medical advisers to deal with the administration as well—in other words, the subsidiary matters of handling a particular document. In this way the amendment is an overreach and, in some parts, a misunderstanding of how the pathology section of the act works. It would create an administrative burden which would be, as I indicated, highly unworkable and would require highly qualified medical advisers to undertake simple administrative and processing tasks.

I do not think, in all reasonableness, that is what you actually are trying to achieve, Senator Fielding. I think you are trying to achieve something similar to the pathology clause, which would provide some safeguards—if I am to use your words not mine. If we look at the volume of audits currently undertaken by Medicare Australia within the Medicare program we find it is about 2,500 per annum or roughly four per cent of the active number of providers. Requiring a medical adviser to be the sole person who could handle documents for audits would be an inefficient and impractical use of medical expertise. I think everyone would agree with that. The government would much prefer them to provide their valuable knowledge in the audit process, which is why their involvement in providing advice in a decision to audit is proposed in the legislation.

We will not be supporting the amendment. I can say, however, that the principle you are trying to enunciate is something we want to look at a little more closely. I do not want to stretch to saying that we agree in principle, but I think that with a little time we might be able to meet somewhere very close to you. We will hold on to the concept you are putting forward—that is, our intention is not to support the amendment as distributed in the Senate, but the bill will have to go to the House and come back. In that process we might invite the minister, when he returns, or an adviser to provide some input into how we might meet you halfway. If that meets your expectations of how the section could work then I am sure we would lean heavily in favour of supporting it. I think we can probably get there but I do not want to make that commitment to something I am not in control of and that the minister will have to have the final call on. That is why we will not be supporting your amendment. I would prefer that it not go down, but that will depend on the opposition as well.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Greens will not be supporting this amendment. I have put on record that the Greens are concerned about privacy, which is why we tried to move those previous amendments—we deeply believe that the decision making should be with a medical practitioner. However, that relates to decision making rather than this particular section. If you read this as I presume it is intended to be read, it applies to all of section 129AAG(7)(2), and that means that a medical practitioner would be the person who is responsible for doing the photocopying, keeping copies et cetera—in other words, all the administration work. While I know that medical practitioners are capable of multitasking, I am sure that is not what Senator Fielding is trying to achieve.

So we support the intent and we are very concerned about the protection of privacy, which is obvious from the amendments that we unsuccessfully moved, but we cannot support this amendment because it will have unintended consequences. I am sure that is not what Senator Fielding intended, but unfortunately that is the case and we cannot support it. We would perhaps support an amendment to this amendment but, as it stands at the moment, it is totally impractical and will not achieve its objective. It will just tie the process up and will not make the audit process any easier, which is what we are trying to achieve with this bill.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I indicated earlier that we will be supporting this amendment, but I will just make a couple of comments. My first point is about the motive for the government saying that it will provide a medical practitioner as part of Medicare to scrutinise these things. We all thought that was pretty good and people thought they had a high level of safety. The reason they thought they had a high level of safety was not because a medical practitioner would know a knee bone from an elbow bone; it was because we respect doctors and we respect the Hippocratic oath. If your patient records eventually went somewhere, they were effectively not leaving the medical profession. That is the reason we are supporting Senator Fielding’s amendment. This discussion has concerned me a little bit and I think I have even more support for it now. I understand that we are saying, ‘Who would want to go and photocopy it?’

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The receptionist of the provider.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Just hear me out, Minister. This is not mischievous; I am just trying to quickly get to the nub of this. Are we now saying that these records would be copied and filed? In the judicial system, they ensure that copies are not made or that they are certified copies and only certain people have access to them, and that is why it works. I am trying not to get the wrong end of the stick and I am not trying to assert that you are being loose and free with people’s records, but the notion that a medical practitioner would look at it and no-one else is something that I think we should stick to. We are not talking about voluminous notes. We are not talking about those sorts of administrative things. Frankly, nobody except the medical practitioner should be looking at patient records in any circumstances unless they are somehow de-identified, and those are not the circumstances we are talking about.

It may appear from Senator Fielding’s submission that it is more onerous, but so be it. We have already heard that in the last year there were some 765 people identified by the audit. Eventually it came down to only five prosecutions, but I think it would give Australians comfort to know the file actually belongs to a doctor and that someone who has taken the Hippocratic oath is the only person who will look at it. Whilst I understand that we need to ensure that we are efficient in this matter, Australians would say that the only people who should be looking at files are doctors.

One would assume we are not casually handing these files to people. I am quite sure that you would follow normal privacy procedures. Somebody has to file it but it would already be in an envelope and be covered up. Senator Fielding’s amendment does not interfere with any of those things. I am not trying to verbal Senator Fielding, and he will correct me if I am wrong, but I am assuming from this that the normal privacy provisions would apply to the material. If they are not medical practitioners then they should not be looking at it. Frankly, I think the fundamental point of having a medical practitioner there is not only that they know what they are doing but also that they are covered by the Hippocratic oath, and for those reasons we will be supporting Senator Fielding’s amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I would like to indicate very briefly that I cannot support this amendment because I am concerned that it will really cause problems in the system. I appreciate Senator Fielding’s intentions in relation to this, but the problem I have with it is that the issue is one of privacy, whether you are a medical practitioner or not. As long as there are sufficient privacy safeguards and they are built into the system, I think that provides a sufficient safeguard. I am worried, for instance, about the medical practitioner having to photocopy the documents, because that is what it would mean. It goes too far. I appreciate Senator Fielding’s intentions in relation to this, but I would have thought it could be dealt with by ensuring that there are strong privacy safeguards in the regulations. That is something that ought to be appropriately scrutinised.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I want to dispel a couple of assertions that have been put here this evening. It seems to have been suggested that only a medical practitioner would handle the document, and that seemed to have been qualified by saying it might be in a manila folder. Common sense should prevail here. If it is a doctors surgery, there are people within the doctors surgery who understand the requirement to maintain confidentiality for privacy purposes and the need to keep confidential information about patients secure. They do the filing, the writing, the tabulating, the receipting of all of these matters and they are not doctors. They are usually receptionists who are highly trained.

Within Medicare Australia, doctors will be required to deal with the aspect we are talking about. Medicare public servants understand the APS values and code of conduct. They are highly professional and understand privacy. They have been taught privacy and respect privacy because they are public servants with a long history of maintaining the confidentiality of all their work. They would do the writing, filing and tabulating of documents, as they have done in the past with other documents that have required auditing within the system.

I have made an open offer to Senator Fielding that I think we can get to where Senator Fielding wants to go, if he gives us the ability to come back and deal with this. I do not want to amend it on the run because that is fraught with danger. I think the principle stays. I understand if Senator Fielding insists on dealing with it tonight. I will continue to honour the commitment that we will look at it no matter what Senator Fielding does with this amendment. I would prefer if the amendment were not moved—I will not pick up my bat and ball and go home over it. I will deal with it in a practical way and ensure that the minister and the agency can deal with this in a way that may meet some of the issues Senator Fielding raises. I am not sure I can meet the opposition’s position, which seems to be a little further than Senator Fielding’s, quite frankly, as it was articulated—though that may have just been in the telling. In short, although the government oppose it, it is opposed on the basis that we would not mind another look at it to see if we can meet some of the issues raised.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

The conversation after the dinner break has been more constructive and productive than before the dinner break. I have moved the amendment and I want it put to the chamber because I think the principle is very important to lay on the table. But, quite clearly, there is no majority support around the chamber for a division on it. I do thank the coalition. The amendment really goes to the heart of the issue of patient information and who will be looking at these documents. It is an auditing trail. What I have put forward has a lot of merit given that patients will still be able to get the documents they want. They may not find it as efficient as they would like, but it gives them what they are after. I still think it will work, so I want the amendment put to the chamber.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (3) on sheet 5963:

(3)    Schedule 1, page 10 (after line 19), after section 129AAJ, insert:

129AAK  Routine audit requirements

        (1)    The regulations may prescribe requirements for medical practitioners to submit routine records of consultations online for the purposes of Medicare audit processes, including the following:

             (a)    the purpose of the consultation;

             (b)    the service or services rendered;

             (c)    length of time;

             (d)    referrals made.

        (2)    The regulations may prescribe a timeframe for compliance with the requirement to submit records, reflecting a general intention that records will be submitted online during each consultation as a matter of course.

        (3)    The Minister must take all reasonable steps to ensure that regulations for the purposes of subsection (1) are made before 1 July 2010.

As foreshadowed in my second reading contribution, this amendment relates to the two-stage process we are trying to establish through our amendments. This one particularly deals with medical practitioners capturing accurate details for patient consultations as a matter of course. The details of the records will be captured to include the purpose of the consultation, services rendered, time span and referrals made. It asks for the regulations to prescribe a time frame for how long the medical practitioner should have to upload these details to ensure they are done in a timely manner, and the time frame required in order to implement these regulations.

The Greens think this is important. It is an issue that was highlighted during the committee phase. The committee heard a lot of evidence from medical practitioners that the audit process was overly burdensome. Essentially, some medical practitioners admitted that their record keeping was not up to scratch. They said they had to go through boxes of medical records—something I found quite astounding. The objection put to us by some medical practitioners is that it would take a long time to pull this information out of their records. We thought that the way to ensure this data was collected would be to do it electronically. Frankly, I am astonished this is not required to be filled in as a matter of course. I must admit I have not been to a surgery lately that does not do all their records electronically straightaway. The Greens believe this amendment will assist with the audit process and help those medical practitioners who find it hard to keep their records.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The government do not support increasing red tape for doctors, who perform a valuable and important task within the Australian community. The proposed amendment suggests that audits should occur routinely, perhaps without any perceived reason or justification for the audit—and I am sure that is not the intent. The amendment also proposes a set method for responding to audits, whereas the bill provides flexibility to providers who may be audited by allowing them to respond with the document via a channel that best suits their mode and style of practice. This was an important element that came through the stakeholder consultation process where many doctors requested that the bill not place new record keeping requirements on them. The process set out in the bill proposes that a targeted compliance audit program requires that Medicare Australia have a reasonable concern that a Medicare payment exceeds the amount that should have been paid. This limits audits to situations where there is a risk that taxpayer money has been spent incorrectly. The government are of the view that limiting audits to situations where there is a reasonable concern is appropriate as it ensures the government only audits where there are justifiable reasons.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

Briefly, we support the government in not supporting this amendment. On top of the government’s reasons, we would also indicate that, for the purpose of Medicare audits, we would include the following specifically: the purpose of the consultation, the time of services rendered, the length of time or the referrals made. As I have already indicated, the feedback, particularly from the Royal Australian and New Zealand College of Psychiatrists, is that you would have to negotiate with each sector, because one of those things may be completely inappropriate. I think that opposition amendment (1) will ensure that the sorts of things you are asking for are the sorts of things that industry has agreed to.

The second point I would make is that the purpose and length of time of the service as well as any referrals is in fact held within the Medicare number itself. So, on application, they are getting all that information. Certainly the industry resists strongly the notion of a random audit and, given the figures of only five prosecutions out of 765, I think everyone in this place would understand that the best thing doctors can be doing is not routinely dealing with audit requirements but getting on with the business of providing health care in Australia.

Question negatived.

by leave—I move opposition amendment (7) on sheet 5987:

(7)    Schedule 1, item 2, page 10 (after line 5), after subsection 129AAJ(1), insert:

     (1A)    In making an application under subsection (1), the person or estate may provide the Medicare Australia CEO with additional information to substantiate (wholly or partly) that the amount paid, purportedly by way of benefit or payment under this Act in respect of the service, should have been paid.

The opposition opposes item 2 in schedule 1 in the following terms:

Schedule 1, item 2, page 10 (lines 15 and 16), subsection 129AAJ(5) to be opposed.

I understand, Minister, that amendment (7), through negotiation, has been agreed to. It is item (8) that is under some sort of contention. Hopefully I will be addressing it, perhaps to the advisers.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We will wear it in the interests of time.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

No worries. Thank you very much for your compliance on this very important amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I missed that interchange across the chamber. Could Senator Ludwig please articulate the government’s position?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Sorry, Senator Siewert. I apologise to the chamber and to you specifically. I have indicated that, yes, we will accept amendment (7) and, yes, in the interests of expediting this, we will accept item (8).

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Just for the purposes of the record then, I would like to say that the Greens are supportive of amendment (7) but not item (8).

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I will put them separately, Senator Siewert. The question is the opposition amendment (7) be agreed to.

Question agreed to.

The question now is that item 2 of schedule 1 stand as printed.

Question negatived.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) standing in my name on behalf of the opposition and Senators Fielding and Xenophon:

(1)    Clause 2, page 1 (lines 7 and 8), omit the clause, substitute:

2  Commencement

        (1)    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:   This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

        (2)    Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

(2)    Page 19 (after line 16), at the end of the bill, add:

Schedule 2—Amendment relating to disallowance of medical services items

Health Insurance Act 1973

1  At the end of section 4

Add:

        (3)    If an item in a table of medical services prescribed in accordance with subsection (1) is disallowed under section 42 of the Legislative Instruments Act 2003, the corresponding item, if any, in the previous regulations is taken to apply in place of the disallowed item from the time of disallowance.

        (4)    In subsection (3):

corresponding item means:

             (a)    the item in the previous regulations with the same item number; or

             (b)    if no item satisfies paragraph (a)—the item in the previous regulations covering the same medical services;

as the disallowed item.

previous regulations means the regulations that were in force immediately prior to the commencement of the disallowed item.

2  Application

The amendment made by this Schedule applies in relation to any disallowance after 26 October 2009 of an item in a table of medical services prescribed in accordance with subsection 4(1) of the Health Insurance Act 1973.

Fundamentally, these amendments are designed to address a serious flaw in the way the parliament is able to scrutinise changes in Medicare rebates. The effect of these amendments is the same as that which the Senate pursued through the Health Insurance Amendment (Revival of Table Items) Bill 2009. In the interests of time, I refer you for a more detailed explanation as to what we seek to achieve through these amendments to the second reading speech on that bill.

Specifically, these amendments seek to ensure—as did the private members bill—that the disallowance process is workable in relation to the general medical services tables. At present the situation is that, faced with the government making even the most inappropriate decision to reduce the Medicare rebate, the Senate cannot disallow that reduction in rebates but can only disallow the item number in question itself, with the well-advertised effect—which has been focused on by the Minister for Health and Ageing—that the rebate in that circumstance would go down to zero. If the government wants to reduce patient rebates through Medicare and the Senate disagrees with the government’s actions, the reality is that the Senate should be able to move a disallowance of the reduction not just of the item number. At present that is not the case. As per advice from the Clerk of the Senate, our private members’ bill and, as such, also our amendment, will apply the general rule of revival contained in the Legislative Instruments Act to particular parts of these regulations.

The problem at present is that, if what Minister Roxon is doing is allowed to stand unchallenged and if it can continue to go ahead into the future, it would mean in effect that governments could make any cuts they like to the Medicare Benefits Schedule without the Senate ever being able in practice to stop them—70 per cent, 80 per cent, 90 per cent cuts, and the parliament cannot do anything about it. So, however ill-considered the budget cut, however many senators are opposed to it, however sound and well-considered the reasons for disallowance may be, the Senate would not be able to do anything about it. If this situation were allowed to stand, any disallowance motion in relation to cuts to the Medicare Benefits Schedule now or at any time in the future would be completely ineffective. Clearly that cannot have been the intention of the parliament when delegating the power to make regulations to the government under the Health Insurance Act 1973.

Given that, at present, the Health Insurance Act 1973 appears to delegate power to the government to make regulations reducing any Medicare item rebate without the Senate being able to do anything about it in practice, clearly that legislation needs to be changed. This is the intention of these amendments. On this occasion, it is about elderly patients in need of life-changing cataract surgery, but another time it could be cancer patients, it could be heart patients or it could be patients across a whole range of medical specialties. If the government is able to do what this government has done, in the face of the express and formalised opposition of the Senate as expressed through a disallowance motion, and if the government can proceed without any recourse to the Senate, even if a majority of the Senate disagrees with the government’s action, then that is entirely inappropriate.

In the short term, this amendment is aimed at helping to protect the more than 100,000 elderly patients who access life-changing cataract surgery every year. The Rudd government, through what we consider to be an ill-considered, short-sighted 50 per cent cut in rebates, sought to impose significant additional out-of-pocket expenses onto mostly elderly patients. This amendment will ensure that the disallowance of that measure, which was passed by the Senate on 28 October 2009, will see the rebate for cataract surgery related items revert to the previous level of rebate.

I will quickly talk about the amendments. The most substantial part of the amendments is amendment (2), which provides that, if any item in the table of medical services prescribed in accordance with subsection (1) is disallowed under section 42 of the Legislative Instruments Act 2003, the corresponding item, if any, in the previous regulations is taken to apply in place of the disallowed item from the time of disallowance. The application would be from 26 October 2009.

The changes in amendment (1) relate to the commencement provisions. I note again that commencement of this bill, the Health Insurance Amendment (Compliance) Bill 2009, according to the government and the way it has been drafted, is 1 January 2010, but in order for that to be possible this legislation has to be passed by the end of this week. The opposition has, very constructively, enabled the government to meet its own deadlines, which they have flagged in this legislation, because we all know that, from tomorrow, we will not be dealing with much legislation other than the CPRS legislation.

I will quickly talk about two comments made by the Minister for Health and Ageing, after the Senate passed the Health Insurance Amendment (Revival of Table Items) Bill 2009. Firstly, she claimed that that bill—and, as such, I guess, these amendments, because these amendments are the same as that bill—was unconstitutional, should not have been introduced into the Senate and should not have been passed by the Senate, supposedly because it was a bill appropriating money and, as such, a money bill. Let me be very clear that that argument is incorrect. Advice from the Clerk of the Senate and independent legal advice from Blake Dawson to the AMA very clearly point out that this is not a bill appropriating money and that it was quite appropriately introduced and passed by the Senate—entirely consistent with section 53 of the Constitution.

I note that, even though Minister Roxon, in the House of Representatives on 29 October 2009 promised that she would provide a copy of the government’s legal advice, which supposedly indicated otherwise, so far she has not, despite repeated orders of the Senate. It does raise the question: given that we have been prepared to put all of our advice on the table and that the government promised to provide its advice, what has the government got to hide?

Finally, in her press conference after the Senate passed the disallowance motion and the private members bill, the minister made the observation that, if our private member’s bill were to be passed into law—and presumably those remarks apply equally to these amendments—this would mean that governments would not be able to change or reduce Medicare rebates in the future. That is, of course, completely incorrect. What it does mean is that, if the Senate were opposed to changes or reductions in Medicare rebates which the government wanted to pursue, and chose to express that opposition by passing a disallowance motion, then the government would not be able to reduce or change Medicare rebates. But, if a government were to seek to reduce or change Medicare rebates and were able to make a case to the Senate, as well as to the House of Representatives, that that was justified, then there would be absolutely no problem.

I repeat again that the minister’s assertion that the effect of the bill passed by the Senate, and the effect of these amendments, would be that the government could at no time reduce Medicare rebates in the future is false. But it is very clearly the intention of this amendment, and unashamedly so, that if the Senate is opposed to a particular reduction in Medicare rebates because it considers it to be inappropriate, and if the Senate gives expression to that opposition through a disallowance motion, then clearly the government cannot go ahead with that reduction—nor should it be able to. From our point of view, we think that is Democracy 101 and that the minister should clearly be forced to take note of the Senate’s wishes in those circumstances.

In closing, this has been a very messy exercise. We grant you that. We do not take responsibility for this. The minister has known since 8 September that she did not have a majority in the Senate for these cold-hearted cuts in patient rebates for cataract surgery through Medicare. We are going to have a more substantial debate about why we think the government’s cuts are ill-thought out, ill-considered, short-sighted and very bad for our health system. I will not hold up the Senate with this now, but the reality is that, from a process point of view, the reason these amendments have become necessary is that this is a government that does not take note when the Senate says, ‘We do not agree with what you are doing—go back to the drawing board.’

This minister has form. This minister has shown that she cannot be trusted with the delegated authority that has been granted to the government under the Health Insurance Act 1973. In order to make the disallowance process appropriately effective in practice, these two amendments are necessary. I commend them to the Senate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It does seem that it is an arrogant and incompetent submission that is being put forward. It is clearly another political stunt that is being used as a cover for the proposed reckless behaviour that Senator Cormann is proposing in disallowing the existing MBS items for cataract surgery. Senator Cormann understands that there will be no MBS rebate for cataract surgery as a consequence of the action that is being taken. If the opposition were serious about this bill before the chamber, they would confine their amendments and debate—

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

This is not the disallowance motion, Minister.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It seems to be, Chairman, that those on the other side do not want to listen to my submission. If that is the case, they can either leave the chamber or remain quiet. It seems to me that the opportunity which I afforded them—when I listened to their rants in silence—similarly should be afforded to me. Senator Cormann, of course, does not agree with my submission.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Minister, if it gets too unruly, I promise you that I will bring them to order. Otherwise, I would ask you to continue.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Thank you. The government has fixed the mess that the Liberal Party created in the Senate three weeks ago regarding cataract procedures, by introducing new items to ensure that patients were not left with no rebate at all. The new fee for the most common cataract procedure—which typically takes between 15 to 20 minutes—is $454.35. Complex procedures will receive $975. As everyone understands, improvements in technology have made cataract procedures quicker and less expensive. This is a view shared by some of the medical profession. For example, Dr Walters was reported in the Canberra Times of 19 November as saying:

The real issue here is the sustainability of public funds—in other words, the Medicare pie. When technology catches up and makes the procedure, as in this case, easier then you move the lines in the pie so funds are available for other health services.

The government believe patients and taxpayers should share the benefits of these improvements. International fee comparisons do indicate that the fee charged for cataract surgery is much higher in Australia than in other similar countries that use the same technology.

The Minister for Health and Ageing had a discussion with the ophthalmologists late last week and we are advised that those conversations are continuing. But we do have a position here; whereas the purpose of Senator Cormann’s submission really remains opaque to the government, and even me on this side of the chamber. Why he would seek to use an important health compliance bill, to pull it off the program and use it to tack amendments such as these onto it—amendments which are unrelated to the substance of the health compliance bill—and seek to waste the time of the Senate dealing with this now when we could be dealing with the government’s agenda with the Carbon Pollution Reduction Scheme escapes me, quite frankly. Senator Cormann knows that this is a political stunt. He understands the ramifications of what he does. One wonders whether or not he is a stalking horse for the opposition, who do not want to deal with the Carbon Pollution Reduction Scheme.

Mathias Cormann (WA, Liberal Party, Shadow Parliamentary Secretary for Health Administration) Share this | Link to this | Hansard source

I was not going to make an additional contribution; however, given some of the statements made by the minister, I cannot leave them unanswered on behalf of the opposition. Firstly, the government do not seem to be able to look past partisan politics. They do not seem to be able to look past the Labor Party and Liberal Party divide. It was not the Liberal Party who made a decision two weeks ago to disallow the government’s cold-hearted actions in relation to patient rebates for cataract surgery; it was the Senate. Nobody but the Australian Labor Party—if the minister wants to talk in those terms—voted in favour of those cuts; in fact, everybody but the Australian Labor Party supported the actions of the Senate in relation to the Rudd government’s cold-hearted 50 per cent cut in patient rebates for cataract surgery. These are cold-hearted cuts which will hurt mostly elderly patients, which will impose significant additional out-of-pocket expenses on them, which will make life-changing surgery unaffordable for many of them, and which will push many of them into the public system—where the taxpayer will have to pick up the whole bill, which is in excess of $3½ thousand. We have a minister here who wants to save about $300 at a Commonwealth level and cost-shift it to the states and territories, who will have to pick up about $3½ thousand for exactly the same procedure. It is completely ill-thought-out policy—and patients are getting caught up in the middle of it.

The minister here mentioned the assertion—and I think he should have been a bit more careful about this—made by the Minister for Health and Ageing that this procedure now takes 15 to 20 minutes. The Minister for Health and Ageing has been very good at making assertions—like she has been promising that she would provide a copy of the legal advice indicating that the actions of the Senate were unconstitutional—but she is not very good at backing up her assertions with evidence, facts or documents. We have been asking questions about how this supposedly now takes 15 to 20 minutes—and every now and then the minister has let the 20 minutes drop and has talked about 15 minutes. We have been asking her for evidence and she has not been able to point to any Australian data. She was able to quote a specialist who wrote an article in the British Medical Journal, and that specialist has approached us to say that he was quoted completely out of context and that he had not relied on any Australian data whatsoever for the article.

We also know that the AMA has done a survey of ophthalmologists which indicated that, for 70 per cent of specialists, the procedure takes between 25 and 40 minutes. We also know that it was only after the Senate disallowed the government’s drastic, massive, 50 per cent cut that the minister, her office or her department went out there and did a ring-around and asked some health stakeholders how much time it actually takes. I believe that the government has been told that the procedure takes about 30 minutes on average. The Senate has asked the minister to come clean and table some of the information that she has been collecting, but of course again today she has been refusing to do so.

The minister also raised improvements in technology—and I cannot leave these assertions unanswered. There have been improvements in technologies and the procedure is now shorter than it was when it was first introduced. Since the rebate for this procedure was first introduced, it has been reduced twice. This is not disputed; the department confirmed this during Senate estimates. It was reduced by 30 per cent in 1987 and the rebate for this surgery was reduced again by 10 per cent in 1996. Since 1996—and even before then, I believe, but certainly since 1996—indexation of rebates for this procedure has been below the CPI. That was intentionally so because of an inbuilt assumption of productivity gains. The minister has not acknowledged any of these facts. She has not answered any of these questions. Instead, when the Senate passed the disallowance to prevent the government from going ahead with a further 50 per cent cut in patient rebates for cataract surgery, she turned around the next day, thumbed her nose at the Senate and replaced the massive 50 per cent cut with a massive 46 per cent cut.

This is not the way to do business. This is not the way to be accountable to the parliament. I will say it again, and close on those remarks: we have a minister here who thinks that she is a minister in a dictatorship. She does not understand her responsibilities as a minister in a parliamentary democracy with a bicameral system, where there is both a House of Representatives and a Senate. The minister has not given us a copy of her legal advice. We have put it all on the table, but all the minister has provided us with is some departmental advice to say that what the opposition is doing is unconstitutional. Since when can the government give advice to itself about how much power it has? I have a message, as I have said before, for minister Roxon: no departmental briefing note to the government will be able to limit the constitutional powers of the Senate and no departmental briefing note to the government will be able to expand the government’s powers under the Constitution.

This is an important change to the Health Insurance Act. Clearly, this government is intent on persisting with abusing the powers that it has been delegated so far under the Health Insurance Act. There has to be a limit put on it. Incidentally, the minister has referred to a meeting with ophthalmologists earlier in the week. Again, I advise the Senate: I have been advised on how this meeting went. One of the things the minister said in that meeting to ophthalmologists was that, if the Senate were to disallow it again, she would reintroduce another determination regulation immediately afterwards—and that the next one could well be lower, so she was threatening ophthalmologists. The Senate has made its views very clear. We do not want the government to reduce the patient rebates through Medicare for cataract surgery—as the Minister for Veterans’ Affairs has not; he has increased them. So the government is all at sea. The arguments are totally inconsistent across the board.

For exactly the same item number, exactly the same procedure, we have one minister in the Rudd government saying rebates should be increased, we have another minister saying they should be reduced—but without putting any evidence forward—and we have a minister who promises to release legal advice to the House of Representatives but then backs out of it, because clearly she has something to hide. And here we have a government that think that, if they tell themselves they have more power than everybody else think they have, somehow that gives them a divine addition to government power. This is what dictatorships do. Dictatorships say, ‘We’ve got all these new powers, which nobody ever thought we had.’

We are ruled by the Constitution. Section 53 of the Constitution enables the Senate to do what it is doing. I urge the government to very carefully reflect on what they do next with this, and on their threats to ophthalmologists. This is not actually about ophthalmologists; this is about patients. This is about patients who the Rudd government want to slug with $600 to $900 in additional out-of-pocket expenses. And these are mostly elderly patients. These are people across Australia who for decades have done the right thing, putting additional resources into the healthcare system through private health insurance. And, at a time when they think they can use their private health insurance to get timely and affordable access to this surgery, this cold-hearted government turns around and say, ‘No, we’re going to cut this rebate by 50 per cent; we are going to increase the out-of-pocket expenses to such an extent that you will not be able to afford it.’ Then this government have the cheek to say to the Senate: ‘Even though you think that our actions are inappropriate, you won’t be able to do anything about it. All you can do is pass a disallowance of the motion itself, which takes the rebate to zero. You won’t be able to do anything about us reducing this.’ These amendments are a very effective legislative way to ensure that the intentions of the Senate can be practically implemented.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Amendments (1) and (2) are also in the name of Family First. They have been moved for a very important reason. I am not so sure the government could actually argue very hard against these amendments in their totality because, when you think about it, if the Senate does disallow something, surely it should go back to where it was previously. That is a simple proposition. Quite clearly, the Senate here is trying to fix something that probably should have been fixed some time ago. I cannot understand why the government would argue contrary to the proposition that, if you disallow an item, it should revert to where it was previously, because that is where the status quo was and that is where it should be until there is a majority in the Senate to change it. I will stick to the topic—I will not go elsewhere, to the specific items—but I cannot understand why the government would not support these amendments. They may say, ‘Oh, it’s because of cataracts’—or something—but it is just common sense. This is where the Senate works best—when we find a problem, rather than sweeping it under the carpet and turning a blind eye to it, it is a matter of addressing it and making sure that the Senate fixes something that is a problem. If this Senate’s majority decision is to disallow an item then, quite frankly, it should revert to where it was. I just cannot understand how the government could argue against this common-sense amendment. If the minister on duty could actually respond to the question: what harm would this do to the Australian people? When the Senate disallows a change brought in by any government, whether it is this Labor government or a coalition government in the future, when the Senate thinks that an item should be disallowed, and the majority is there, it should revert to where it was so that there is not the chaos of going back to zero. This is the government’s doing. They have had plenty of time to think this thing through, and plenty of time to address it. Let’s stick to the arguments. This is a common-sense amendment that the Rudd government should fully support, because it makes sense.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will not speak for any longer than is absolutely necessary. The Greens will be supporting this amendment, for the same reason that we did last time: we think we need to, firstly, deal with this issue of when a schedule fee is disallowed; and, secondly, we do not think there has been enough effort put into actually fixing this issue around cataracts. I spoke at more length last time I addressed this issue, but there is still a stand-off in dealing with this issue of the schedule fees for cataracts. To my mind there has not been enough information presented about what the real costs are in terms of the rebates. There is dispute about how long operations take. I have heard some evidence regarding the number of patients who are going through a certain number of procedures per day, but I have also heard counterevidence to that as well. Yes, there was a meeting, and I understand that it was unsatisfactory—it takes two sides in such an issue to have a meeting. I must admit, we have not adequately heard the minister’s side; we have heard the ophthalmologist’s side. But the Greens have yet to be convinced that this issue has been adequately dealt with, so we will be supporting this amendment.

Question put:

That the amendments (Senator Cormann’s) be agreed to.