Bills Digest no. 12 2009–10
Midwife Professional Indemnity (Commonwealth
Contribution) Scheme Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 24 June
2009
House: House of Representatives
Portfolio: Health and Ageing
Commencement:
1 July 2010
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill proposes a Commonwealth
scheme whereby assistance is offered to eligible midwives in
accessing indemnity for claims arising from their professional
activities.
In June 2008, the Minister for Health and Ageing, Nicola Roxon,
directed the Commonwealth Chief Nurse and Midwifery Officer,
Rosemary Bryant to conduct a review into the delivery of maternity
services in Australia. The Maternity Services Review (the review)
attracted more than 900 submissions from a range of stakeholders
including health professionals, researchers, non-government
organisations, representative organisations and individuals.
The review report, released in
February 2009, noted that Australia is one of the safest countries
in the world in which to give birth or to be born. At the same
time, maternity care was seen not to be meeting the needs of all
women.[1]
Issues raised in submissions to the
review reflected the different perspectives of stakeholders. These
included:
- Consumer concern about the limited choices in models of care
available
- Midwives and nurses concerns about a lack of recognition for
the services they provide and constraints on their practice caused
by funding and lack of indemnity
- The medical profession s concern that changes to maternity care
could result in the loss of specialist expertise. Medical
practitioners were particularly concerned about the safety
repercussions of home birthing.
The review made a number of recommendations in what it
identified as key areas:
- safety and quality
- access to a range of models of care
- inequality of outcomes and access
- information and support for women and their families
- maternity workforce and
- financing arrangements.
Expanding the role of midwives to deliver greater access to a
range of models of maternity care within a collaborative
multidisciplinary care environment was central to the review s
recommendations. Supplementary to this fundamental recommendation
were proposals for consideration of changes to funding arrangements
for midwives and support for the provision of professional
indemnity insurance for midwives working in a collaborative care
environment. In addition, the review recommended the introduction
of cross-professional guidelines which would support collaborative
care arrangements, collection of data and the monitoring of new
models.
While the review report argued that women needed comprehensive
and reliable information about the range of antenatal, birthing and
postnatal care, one omission in the area of birthing options that
some consider it did not address in detail homebirthing has become
the subject of considerable debate.
In 2008, the Council of Australian Governments agreed to
establish a national registration scheme for certain health
professionals. The scheme is due to be implemented in July 2010 and
is intended to provide more flexible and accountable arrangements
for these health professionals.[2] The first stage of legislation to implement the
scheme was passed in 2008, and following extensive consultation
processes, on 12 June 2009 the Australian Health Workforce
Ministerial Council released an exposure draft of the second stage
of legislation. The legislation will continue administrative
arrangements already established but it deals also with other
matters, including registration and accreditation. Under the
proposed legislation, practitioners will be required to have
suitable professional indemnity insurance during the period of
their registration .[3]
There has been significant public debate over homebirthing in
the context of these Bills, however none of the Bills directly
impact on homebirth arrangements. They establish systems which
allow distinctions to be made between midwives and nurses who will,
or will not, be covered by government supported insurance
arrangements and government supported access to the Medicare system
or the pharmaceutical benefits system and this could be utilised to
exclude midwives who attend homebirths from the benefits of these
systems, however many privately practising midwives have not been
able to access effective insurance for some time. The second
tranche of legislation governing the registration arrangements may
directly exclude homebirth midwives from practicing, but in a sense
it is only Minister Roxon s comments in her second reading speech
that has raised the position of homebirthing so acutely in the
context of these Bills.[4] The issue of homebirth has also arisen in responses to
the review of maternity services. The issues arising are dealt with
further under the Key Issues section.
Response to the Maternity Services Review was mixed, and
arguably, based on preconceived perceptions of what should be a
legitimate role for the nursing profession. The Royal Australian
College of General Practitioners (RACGP) was tentative in its
reaction. It was supportive of the teamwork approach to maternity
services the review recommended. But it was also concerned about
possible fragmentation of care created by new silos of care
delivery , which it believed would be created by increasing the
responsibility and scope of nursing practice.[5] While the Rural Doctors Association of
Australia welcomed the review s recommendations, at the same time
it noted its belief that medical practitioners are the key to
improving access to maternity services in rural Australia .[6] Nursing bodies on the
other hand, were enthusiastic about the review s conclusions; the
Australian Nursing Federation labelled it a good beginning and the
Australian College of Midwives applauded its intentions.[7]
From a consumer perspective, the Consumers Health Forum (CHF)
concluded that overall, the review s recommendations would deliver
a more people-centred, flexible, team-centred health
system.[8] But on the
negative side, CHF also raised the issue of professional indemnity,
expressing disappointment that the review did not recommend
coverage for midwives in private practice.[9]
Associate Professor of Midwifery at the University of Western
Sydney Hannah Dahlen, who was also generally positive about the
review, expressed concern that more consideration was not given to
discussion of an effective homebirth model. She warned that if
homebirth was pushed underground and its skills lost, safety would
ultimately be compromised, not improved .[10]
In response to the Maternity Services Review, the Government
announced a $120.5 million package of maternity measures in the
2009 10 Budget. It claimed the package not only recognised the role
played by midwives in the birthing experience of many Australian
women, but that it also gave families a greater choice in the type
of care they wish to receive when having a baby .[11]
The package is intended to give access to Medicare Benefits
Schedule (MBS) and Pharmaceutical Benefits Scheme (PBS) benefits
for services provided by midwives defined as eligible under
legislation, to provide government-supported professional indemnity
insurance scheme for those midwives, to deliver more midwifery
services to rural and remote communities and more scholarships for
general practitioners and midwives as well as 24 hour, seven days a
week telephone helpline and information service to provide greater
access to maternity information and support before and after birth.
These Bills, if passed, will implement the first two items.
Response to the Budget package from most stakeholders was
similar to that which greeted the Maternity Services Review. The
Australian Nursing Federation (ANF) considered that the proposed
rebates would help break down the barriers that prevent Australians
accessing equitable health care .[12] The ANF has long stressed that the skills of
nurses are underused, but at the same time it has been sceptical
about the extent to which reform can succeed, given the
considerable influence on government policy it believes the medical
profession has traditionally wielded.[13] Despite its scepticism about reform,
the ANF has since congratulated the Government for recognising the
benefits that highly skilled and educated nurse practitioners and
midwives bring to the health of all Australians .[14]
The AMA had made it clear in its submission to the Maternity
Services Review that any support for expanded funding arrangements
for midwives would be premised on the restriction that is was made
available within a medically supervised model. It argued
emphatically:
The Government should not introduce any
publicly funded arrangement which is based on independent midwife
care for mothers and babies in Australia or use public funds to
encourage separate streams of midwife led maternal care on the one
hand and medical maternal care on the other. This will create two
separate streams of care and the gulf between these will be
detrimental to good patient care. The gulf cannot be addressed
through protocols and other ameliorating initiatives and will
ultimately lead to less safe care for mothers and babies.[15]
The AMA considered that the Maternity Services Review Report
reinforced existing practice where midwives work in collaborative
teams with obstetricians and general practitioner
obstetricians.[16]
Since the announcement of the Budget package and the
introduction of this package of legislation, the issues of
homebirthing and indemnity for midwives have prompted a number of
media and stakeholder responses. One report cited a coroner s
warning of disastrous consequences if midwives working outside the
hospitals are not covered by indemnity insurance. Another
commentator warned that rogue operators will replace the qualified
professionals who are unable to be registered to practice.[17]
It was predicted in the press in March 2009 that the indemnity
issue could create obstacles in achieving maternity services
reform. One health commentator surmised that indemnity insurance
payments could cost taxpayers between $12 and $24 million annually,
in subsidies as premiums for private practice could be similar to
those paid by obstetricians (between $60 000 and $100 000 for
individual policies).[18] An insurer suggested that even if the Government did
subsidise indemnity insurance for midwives that insurance companies
may be reluctant to fill the void for fear of alienating their own
members, many of whom are at best cautious about independent
midwifery .[19]
The Australian Private Midwives Association (APMA) argues that
the Howard Government s failure to include midwives in the
government initiated measures which supported medical practitioners
following the collapse of the insurance industry has led to a
perception that midwives are a riskier birth option than medical
practitioners. In the APMA s view:
In a level commercial playing field this myth
would be debunked. Midwives provide generally low risk care. They
do no major surgery, are not responsible for inductions or
anaesthesia such as epidurals and they generally provide care for
healthy women.[20]
Interestingly, the AMA also supports a level indemnity cover
playing field for midwives who will be deemed eligible under this
legislation. Its justification for this is that such coverage will
mean that it is more likely doctors will be willing to work in
collaborative arrangements with midwives. In the absence of such a
scheme doctors could be faced with the total burden of claims that
may arise if midwives do not have sufficient indemnity
cover.[21]
A significant number of responses to the Maternity Services
Review were from the general public and it appears the same may be
the case for a Senate inquiry being conducted into the registration
and accreditation scheme. Submissions from private citizens to the
Maternity Services review overwhelmingly argued for increasing the
number of birthing options available for women and many criticised
the intention to exclude private midwives from indemnity insurance.
The tone of submissions received to date by the Senate Inquiry into
this package of Bills appears to indicate that there is similar
support for overturning the intention to exclude private midwives
from indemnity insurance.[22]
Senator Rachel Siewert noted on 31 July 2009 the Australian
Greens objections to legislation that would make it illegal for
midwives to attend home births. While the Greens expressed support
for the Government s proposals to modernise maternity services
overall they intended to move amendments to protect the rights of
women to choose safe homebirths .[23] They argued that preventing private midwives from
providing this service
will be dangerous for mothers and babies. It
flies in the face of international trends in maternity care and
appears completely inconsistent with the Governments stated policy
of providing pregnant women with greater choice and less
interventionist maternity care.[24]
The Liberal Member for Mitchell, Alex Hawke had previously
raised the issue of home birthing in the Main Committee of the
House of Representatives in June. Mr Hawke expressed his support
for the women who had approached him concerned that their birthing
choices would be denied following the introduction of the national
accreditation and registration scheme for health professionals. He
noted:
since 1993 the UK s official policy has been
that women should have more choice in the place of birth, and this
is a position which the coalition supports. We certainly support
the choice of childbirth options for women. The government has not
resolved this situation despite it being noted in the maternity
services review, and from listening to the experiences of these
midwives and mothers within my electorate I can understand their
concern The shadow minister for health has written personally to
the Minister for Health and Ageing raising these concerns and
requesting that the government act and resolve this situation, and
we are currently developing our health policy.[25]
Family First Senator Steve Fielding, who attended a rally
outside the Health Minister s office electorate office on 4 August,
also noted his opposition to this package of legislation. Senator
Fielding condemned it as outrageous and inconsistent with what
occurred in other health systems around the world, adding that it
was another example of the Government telling people what to do. It
was a woman s right to decide where and how she should give birth,
according to the Senator.[26]
Along with two cognate Bills, the Health Legislation Amendment
(Midwives and Nurse Practitioners) Bill 2009 and the Midwife
Professional Indemnity (Commonwealth Contribution) Scheme Bill
2009, this Bill has been referred to the Senate Community Affairs
Committee for inquiry and was due to report by 7 August 2009. On
that date the Committee issued an interim report pointing to the
1880 submissions received and suggesting that more time was
necessary to give due consideration to the submissions. The new
reporting date is 17 August 2009. Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/clac_ctte/health_leg_midwives_nurse_practitioners_09/index.htm
The Explanatory Memorandum estimates that the two Bills dealing
with midwives indemnity will have a total cost of $25.2 million
over four years (including the effects of delegated legislation).
This figure incorporates the budgeted annual costs, which include
administrative and Department of Health and Ageing costs, and
administrative costs for Medicare Australia to introduce the
necessary systems changes and manage the program :[27]
|
2009-10
($
million)
|
2010-11
($
million)
|
2011-12
($
million)
|
2012-13
($
million)
|
Total
($
million)
|
|
$4.7
|
$8.1
|
$4.4
|
$7.9
|
$25.2
|
According to Australia s homebirthing movement, the requirement
to be embodied in the national registration and accreditation
legislation and echoed in this and related Bills, will effectively
make homebirthing illegal. This is because homebirthing midwives
will not be eligible for indemnity insurance once the national
registration and accreditation scheme is introduced.
HomeBirth Australia considers that the Maternity Services Review
was dismissive generally of the homebirth movement, and that it
labelled women who choose homebirth as a trivial minority .[28] HomeBirth considers
that while the review adopted this approach to homebirthing it
failed to explore the reasons for the current small numbers of home
births. Nor did the review compare homebirth statistics with other
minority birthing choices, such as caesarean section on request.
HomeBirth points out that there is no consideration of banning
other minority choices and believes the review responded in this
case to the demands of those who wish to limit women s birthing
choices.[29] It
claims this is illustrated by the review s reluctance to support a
homebirthing model because that model risks polarising the [health]
professions rather than allowing the expansion of collaborative
approaches to improving choice and services for Australian women
and their babies .[30]
HomeBirth in particular expresses serious concern about the
review s observations concerning indemnity for home birthing
midwives:
For privately practising midwives, it is not
currently a requirement in most jurisdictions to have professional
indemnity cover in place before registration is granted. However,
this situation is expected to change under the proposed new
National Registration and Accreditation Scheme.[31]
HomeBirth concludes that the maternity services legislation
package will
reinforce a subordinate position for midwives
relative to doctors by proposing to restrict midwifery practice in
line with the prejudices of less collaborative doctors. This
undermines the relationships [the review hopes] to enhance. The
Government must make it clear that the needs, interests and
autonomy of women come first.[32]
According to HomeBirth, the restrictions this and accompanying
legislation will place on midwifery practice will force more women
to opt for unattended homebirthing. Unattended homebirthing, also
known as unassisted childbirth or freebirthing, involves giving
birth, usually at home, without the assistance of a midwife, doctor
or other medical professional.
In general freebirthing proponents argue that women have been
giving birth at home, without medical assistance for thousands of
years. They consider that birth should occur naturally and
peacefully, without the unnecessary interventions that occur in a
hospital setting. Many women who opt for freebirth have previously
experienced a bad birthing experience in a hospital or other
medical setting.[33] Opponents of freebirthing, however, argue that giving
birth at home without the guidance of a midwife or doctor is
extremely dangerous for both mother and baby. While critics of
freebirthing acknowledge women have been giving birth at home
unassisted for thousands of years, they add that a large percentage
of women and babies died in the process.[34]
One submission to the Senate Inquiry into the package of
legislation which includes this Bill, also claims that not only is
free birthing likely to skyrocket if the restrictions on private
midwifery practice are allowed to remain, but that dangers may be
compounded as women turn to doulas to assist them in the birthing
process.[35]
A doula is a support person who provides physical comfort,
encouragement, reassurance and information during labour.[36] But a doula is not
required to be a trained midwife, (although some are), and a doula
is not formally registered or regulated. Unlike a trained medical
professional, doulas take no clinical responsibility for birth
outcomes. However, it is claimed that women may see doulas as less
expensive birth options if this legislation goes through. They may
perceive doulas as persons who have
some idea of what is happening through
the birthing process. Women may mistakenly view this as safer
although doulas are not trained to resuscitate mothers or babies,
detect complexities or treat them, or to know when there is a need
for transfer. In some ways this presents a picture that is even
less safe than free-birthing without a doula because women may
mistakenly believe that the doula will keep them from harm.[37]
Australian Institute of Health and Welfare (AIHW) figures
indicate that in 2006 there were 277 436 women who gave birth,
resulting in 282 169 births. Most births in Australia occur in
conventional labour-ward settings. In 2006, ninety seven per cent
of births were in hospitals (269 835 gave birth in a hospital). A
further 5460 women gave birth in birth centres and planned
homebirths and other births, such as unexpected births accounted
for less than one per cent of births (2053 women).[38]
There is no official data collected for freebirths in Australia.
However, one source considers there may be around ten births
annually registered in South Australia for which there is no
midwife s form for a planned homebirth. This source notes that
South Australia accounts for only seven per cent of the total
births in Australia. It adds that if someone who has a freebirth
attends hospital for antenatal or postnatal care their births may
be counted as babies born before arrival. South Australia recorded
73 of these in 2006.[39]
The AMA is strongly opposed to
publicly funded midwife led home birth . In its submission to the
Maternity Services Review it cited a 1998 Australian Study
published in the British Medical Journal which showed that
in-home birthing by midwives is three times more likely to lead to
perinatal mortality than conventional options even with the lowest
risk pregnancies noting:
evidence for increased perinatal death rates is
compelling and the difference is so substantial that the Federal
Government could not reasonably nor responsibly introduce payment
arrangements which encourage and sanction such activities. If the
Government did sanction such practices, it is likely that
independent midwives would be encouraged by this action to extend
their practice into riskier patient selection areas and this could
well see an escalation of an already very significant risk
differential.[40]
The same study noted however, that the death rate for homebirths
in a number of other countries was lower than Australia. It added
that the higher perinatal death rate in Australian homebirths was
due to the inclusion in this study of predictably high risk births
and prolonged asphyxia during labour.[41] It concluded from this that home
birth for low risk women can compare favourably with hospital birth
but high risk homebirth was inadvisable. It cited a number of
possible reasons for the higher death rate in Australia, one of
which was the low case loads of homebirth practitioners; another
that many homebirth practitioners in Australia at the time did not
restrict the offer of homebirth to women with a low birth
risk.[42] While
this report recommends caution in concluding that homebirth is
completely safe, it is not as disparaging as some would
indicate.
Like the AMA, the Royal Australian
and New Zealand College of Obstetricians and Gynaecologists has
also clearly stated since 1987 that it does not endorse the idea of
home births.[43]
The College also relies on the Australian study of homebirths noted
above to substantiate its position and to at least one other source
that is not the outright condemnation of homebirthing it
suggests.[44] In
opposition to these views the Royal College of Midwives (RCM) and
the Royal College of Obstetricians and Gynaecologists (RCOG) issued
a joint statement in 2007 in support of homebirth for women with
uncomplicated pregnancies.[45]
In addition, there is a considerable body of evidence which
supports the home birth option. The British Medical
Journal for example has cited a 2005 study of planned
home births in America which concluded:
Women who intended at the start of labour to
have a home birth with a certified professional
midwife had a low rate of intrapartum and neonatal
mortality, similar to that in most studies of
low risk hospital births in North America. A high
degree of safety and maternal satisfaction were
reported, and over 87% of mothers and neonates did
not require transfer to hospital.[46]
It added:
Our results for intrapartum and neonatal
mortality are consistent with most other North
American studies of intended births out of hospital
and studies of low risk hospital birth. A
meta-analysis and the latest research in
Britain, Switzerland, and the
Netherlands have reinforced support of home
birth. Researchers reported high overall perinatal
mortality in a study of home birth in
Australia, qualifying that low risk
home births in Australia had good outcomes but that
high risk births gave rise to a high rate of
avoidable death at home. Two
prospective studies in North America found positive
outcomes for home birth, but the studies were not
of sufficient size to provide relatively stable
perinatal death rates. None of this evidence, including ours, is
consistent with a study in Washington State based
on birth certificates. That study reported an
increased risk with home birth but lacked an
explicit indication of planned place of birth,
creating the potential inclusion of high
risk unplanned, unattended home births.[47]
A recent study from The Netherlands in 2009
reached similar conclusions as have a number of others ranging over
a period of more than twenty years.[48] The Netherlands study looked at
perinatal mortality and morbidity in a nationwide cohort of 529 688
low-risk planned home and hospital births over seven years. It did
not find increased risks of perinatal mortality and severe
perinatal morbidity among low-risk women planning home births. It
recommended that these women should be encouraged to plan their
birth at the place of their preference, provided the maternity care
system is well equipped to underpin women s choice .[49]
One possible option to ensure that homebirthing is not forced
underground as a result of this legislative package and the
national registration and accreditation legislation would be for
the Government to provide funding to the states and territories to
expand publicly funded homebirthing. Publicly funded homebirthing
is currently available in Western Australia, South Australia, the
Northern Territory and New South Wales. The Community Midwifery
Program in Western Australia (CMWA) for example was established in
1996 in partnership with the Western Australian Department of
Health through the North Metropolitan Area Health Service. It
operates across the Perth metropolitan area and is available to
women experiencing a low-risk pregnancy. As a result of a medical
indemnity crisis in the early 2000s which was caused by rising
insurance premiums and the collapse of Australia s largest medical
insurance provider the Commonwealth agreed to subsidise insurance
premiums for medical practitioners. It did not subsidise premiums
for midwives, however, and since that time private midwives have
been working without indemnity insurance. CMWA, however, was able
to negotiate with the Department of Health to secure access to
professional indemnity insurance for midwives working under the
Community Midwife Program in that state.[50]
Similar community midwifery programs are
available in South Australia and the Northern Territory, but as in
the Western Australia case, these are limited in geographic scope.
The Northern Territory program operates only in Darwin and Alice
Springs for instance, thereby ruling out a significant proportion
of the Territory population from participation. In addition, as the
Senate Inquiry into the nurse practitioner and midwives Bills was
told, the Northern Territory program is considered by some to be
the most vulnerable and marginalised of all maternity services in
the Territory . Its problems range from the lack of service
coverage area to poor conditions and remuneration for
midwives.[51]
The New South Wales publicly funded homebirth model was the
result of several years of planning at the state and local levels.
Homebirth services in that state were first established in 2005 at
St George Hospital in the Sydney suburb of Kogarah and have also
been available from 2007 at Belmont and from 2008 at Shellharbour
Hospitals. Indemnity issues were resolved as homebirths were
attended by midwives employed by the hospitals.
Problems would need to be resolved
if this model were to be expanded upon to give women more homebirth
options. As a review undertaken of the St George program in late
2007 noted, midwives employed by St George Hospital were only able
to provide homebirth services to women who registered with the
hospital s birth centre due to workload restrictions. This meant
that there were limited numbers of homebirth places available (this
has been noted in Western Australia also). It was suggested by this
review that contracting midwives in private practice could work in
the service as an option to overcome this shortage.[52]
Given the significant evidence that
low risk homebirth attended by qualified midwives is safe, as some
submissions to the Senate Inquiry into these Bills have noted, it
could be argued that it would be simpler to include private
midwives under the definition of those eligible for government
indemnity coverage. This could satisfy both the homebirth lobby and
the nursing profession. On the other hand, such a decision would
most likely alienate medical practitioners who appear to consider
any semblance of independent practice by other health practitioners
as a threat to the traditional doctor-centric model of care that
has dominated the Australian health system. The simple option would
be complicated and viewed as provocative by the medical
profession.
The issue of insurance has become central to the debate around
homebirth which has arisen out of Minister Roxon s comments
regarding the Government s intentions not to support
homebirth.[53] One
of the fundamental questions arising is whether the community does
itself a disservice by limiting its field of activities to those
that can be insured. As noted above, some private midwives are
currently operating without insurance. On the other hand there may
be public policy reasons which oblige the government to impose
requirements for insurance in various situations or, in its
absence, to ban the uninsurable activity, or finally, to provide
support from the public sector for forms of insurance which have
become unavailable within the private insurance market.
Relying on the provision of insurance through the insurance
industry as a way of determining what is, or is not a permissible
behaviour can be difficult. Thus the insurance indemnity crisis of
2001[54] would have
seen doctors going out of practice if it were not for the
government decision to support the insurance of doctors in
2003.[55] The
insurance market does not make its decisions of how and what to
ensure in a manner that is focussed on public policy
concerns[56]
(indeed one insurer has suggested that the failure of the private
sector to insure midwives may be to do with a desire to please its
pre-existing clients rather than actuarial concerns[57]).
The consensus is that childbirth is a potentially dangerous time
for both mother and baby, however at the moment both midwives and
pregnant women are choosing to birth at home with limited or no
access to insurance. The government is faced not only with the
question of whether it should allow these choices taken by women
but also whether it should step in on behalf of the unborn child
and try to force a situation where the birthing process will be to
some extent insured. Either option has the potential to restrict
the freedom of pregnant or birthing women.
The role of Medical Indemnity has been a vexed one. After the
start of the indemnity crisis there was a Medical Indemnity Policy
Review Panel in 2003 which resulted in the Government offering
significant support for doctors insurance arrangements.[58] The Consumer
submission to the Panel argued that [s]hort term strategies such as
Government support for an ailing private sector medical indemnity
organisation are inappropriate and unsustainable.[59] More generally they argued that
most of the reforms to date [have been] superficial and directed at
industry support rather than focusing on fairness to patients .
They were in favour of a no-fault system of tort law reform
because
For consumers, the tort system means that we
have to sue for damages to right wrongs that have been done to us.
This path is costly (even in a no-win, no-fee case),
extraordinarily slow and time consuming. The legal process is often
traumatic and is vulnerable to being driven by lawyers interests.
Perhaps most importantly, it leaves many consumers who are severely
harmed in health care with no compensation. ... [We strongly
support] the development of a no-fault care cost scheme to address
the most obvious shortcomings with current arrangements around the
provision of high quality long term care and community support for
those who need it.
There were and are other voices who argue along similar lines,
however Australia does not seem immediately likely to follow in New
Zealand s footsteps and abandon our fault based tort
system.[60] While
the no-fault system may be a longer term solution the discussions
around the issue point to the fact that reliance on the insurance
industry to determine what behaviours are legal or illegal may be
unwise. Allowing health care arrangements to be determined by the
vicissitudes of the insurance industry may have unfortunate
consequences (as the government recognised when it stepped in to
support insurance arrangements for doctors). Indeed a Queensland
subcommittee of the Australian College of Midwives has argued that
insurance arrangements should be used to promote the provision of
good regulation and safety in homebirths:
The exclusion of homebirth from indemnity has
been suggested to be a mechanism of tightening up homebirth and
bringing it in to state based services . The legislation as it is
proposed will have entirely the opposite effect. Provision of
indemnity insurance could be attached to a model of homebirth which
enables quality and safety mechanisms to be built in. Exclusion of
homebirth and the deregistration of midwives providing homebirth
care excludes any potential quality and safety processes around
homebirth care.[61]
In the end these issues may be resolved by the government in a
non-parliamentary setting by use of their rule making powers.
The content of the Bill is set out in four
chapters.
Clause 3 sets out the objects of the proposed
Act and its companion, the Midwife Professional Indemnity
(Run-off Cover Support Payment) Act 2009. The Bill aims to
contribute towards the availability of professional midwife
services in Australia by providing Commonwealth assistance to
support access by eligible midwives to a
scheme to provide indemnity for claims arising from their
professional activities.
The term eligible midwife is defined
in clause 5 as a person who:
- is licensed, registered or authorised to practice midwifery by
or under a law of the Commonwealth, a State or a Territory and
- meets such other requirements (if any) as are specified in the
Rules for the purposes of this paragraph,[62] and
- is not included in a class of persons specified in the Rules
for the purposes of this paragraph.
An intention to exclude the class of persons who are involved in
homebirths under the Rules is apparent in the second reading speech
by the Minister for Health and Ageing in relation to the Health
Legislation Amendment (Midwives and Nurse Practitioners) Bill 2009
in which she stated:
At this stage, the Commonwealth is not
proposing to extend the new arrangements for midwives to include
homebirths. Medicare benefits and PBS prescribing will not be
approved for deliveries outside clinical settings, and the
Commonwealth supported professional indemnity cover will not
respond to claims relating to homebirths.[63]
While this has excited some comment, no mention is given to the
exclusion of homebirths in either the second reading speech for
this Bill, or the Bill itself. On the contrary, in the second
reading speech for this Bill, Ms Roxon stated:
For the purposes of this bill, an eligible
midwife is one who is licensed, registered or authorised to
practise midwifery under a state or territory law and who meets any
other requirements specified in the rules
Overall, this bill contributes to a new era for
midwifery services in this country, by addressing a longstanding
impediment that has limited the availability of a wider choice for
women.[64]
According to subclause 3(2) this will be
achieved in three ways:
- the Commonwealth will pay part of the costs of large
settlements or awards paid by eligible insurers that indemnify
eligible midwives
- the Commonwealth will pay that part of a settlement or award
which exceeds an insurance contract limits, in certain
circumstances, and
- the Commonwealth will pay certain claims against eligible
midwives who are no longer in private practice.
Clause 10 sets the relevant claim thresholds
being:
- Level 1: $100 000 or another amount set by the Rules and
- Level 2: $2 million or another amount set by the Rules.
Level 1 and 2 are distinguished by the levels of coverage, who
can make a claim and the criteria that must be met (as discussed
below).
After a claim is made against a midwife by a person, a Level 1
or Level 2 Commonwealth contribution will not be payable unless
there is a qualifying claim certificate
in force in relation to the claim: subclauses
16(1) and 18(1).
The common requirements for obtaining
a qualifying claim certificate, as listed in subclause
11(3), must be met. These include:
- a claim is made against a midwife in relation to an incident
that occurred in the course of, or in connection with, the midwife
s practices as an eligible midwife
:[65]
paragraphs 11(3)(a) (b)
- there is a contract of insurance held by an eligible insurer
which provides midwife professional indemnity cover in relation to
the claim: paragraph 11(3)(c)
- an incident has occurred in Australia or an external territory:
paragraph 11(3)(d)
- the claim does not relate to an incident that occurred in the
course of treatment of a public patient of a hospital or to an
incident for which the eligible midwife would otherwise be
indemnified: paragraphs 11(3)(e) (g)
- the incident must have occurred on or after 1 July 2010, and on
or before the relevant termination date:[66] paragraphs 11(3)((h)
(i)
- the claim is not an aggregate of two or more claims against the
midwife: paragraph 11(3)(j), and
- the claim is not one about which specific Rules have been made:
paragraphs 11(3)(k) (m).
There are additional requirements for a Level 2 qualifying claim
certificate. These include that there is a contract of insurance
entered into by an eligible insurer which provides midwife
professional indemnity cover in relation to the claim, and the
limit of the eligible insurer s liability under the contract in
relation to that claim equals or exceeds the Level 2 claim
threshold:[67]
subclause 11(4).
An application for a Level 1 qualifying claim certificate may be
made by an eligible insurer: subclause 12(1). An
application for a Level 2 qualifying claim certificate may be made
by an eligible insurer, the person against whom the claim is made
(the midwife) or a person acting on behalf of that person s behalf:
subclause 12(2). The application must be made to
the Medicare Australia CEO in the manner and form set out in
subclause 12(3).
The Medicare Australia CEO is to make a decision about whether
to issue the qualifying claim certificate within 21 days of the
date of receipt of the application unless further information in
respect of the application is requested. In that case, the Medicare
Australia CEO must make a decision about whether to issue the
qualifying claim certificate within 21 days of the date of receipt
of the further information: clause 13. Where the
Medicare Australia CEO makes a decision to refuse to issue a
qualifying claim certificate, the decision may be reviewed by the
Administrative Appeals Tribunal: subclause
11(7).
Importantly, clause 15 empowers the Medicare
Australia CEO to revoke a qualifying claim certificate in
circumstances where the terms of subclauses 11(1) and (2) are no
longer satisfied. That is, the claim does not meet the
common requirements set out in clause
11(3) and, for a Level 2 claim, does not meet the additional
requirements in clause 11(4).
Of concern is subclause 15(2) which allows the
Medicare Australia CEO, in making the decision to revoke a
qualifying claim certificate, to consider Rules under paragraphs
11(3)(k) (m) and paragraph 11(4)(b) which have been made
after the original decision to issue the
certificate. Whilst the Minister has a broad power to make Rules
which exclude a class of claim, or to make Rules which exclude
claims in relation to a kind of incident, the effect of
subclause 15(2) is that Rules made
after claims of that type have been given a
qualifying claim certificate, may operate so that the certificate
can be revoked in which case neither a Level 1 nor a Level 2
Commonwealth contribution would be payable. There is no explanation
of the rationale behind this provision in the Explanatory
Memorandum which contains a pr cis of the bill. According to
subclause 15(4) any Commonwealth contribution
which already had been paid in that circumstance would be overpaid,
and therefore, recoverable.
Subclause 15(3) empowers the Medicare Australia
CEO to vary a qualifying claim certificate in circumstances where a
matter is not correctly identified or specified. Decisions to
revoke or vary a qualifying claim certificate are subject to review
by the Administrative Appeals Tribunal: subclause
15(6).
Before the Medicare Australia CEO can determine that a Level 1
Commonwealth contribution is payable to an eligible insurer on a
claim against a midwife, the eligible insurer must have lodged a
claim,[68] a
qualifying claim certificate must be in force, and the following
further requirements must be satisfied:
- where there is a person, other than the midwife, against whom a
claim has been made or is likely to be made in relation to the
incident,[69]
either:
- an apportionment certificate is in force,[70] or
- there is a judgment or order of a court which apportions
liability: paragraph 16(1)(c)
- the eligible insurer has a qualifying
payment which exceeds the Level 1 claim threshold:
paragraphs 16(1)(d) (e)
- any requirements under the Rules have been met:
paragraphs 16(1)(g) (h).
The eligible insurer has a qualifying
payment if the insurer pays, or becomes liable to pay
an amount:
- in relation to a claim against a midwife, whether under a
written agreement or under a court order or judgment which is not
stayed or the subject of an appeal: paragraph
16(3)(a)
- payable under an insurance contract with the midwife in the
ordinary course of the insurer s business: paragraph
16(3)(b) (c) and
- in accordance with the proportion of the overall liability
which has been specified in the apportionment certificate:
paragraph 16(3)(d).
Clause 17 sets the amount of the Level 1
Commonwealth contribution as 80 percent (or another percentage
specified in the Rules) of the amount by which the eligible insurer
s qualifying payment exceeds the Level 1 claim threshold but does
not exceed the Level 2 claim threshold.
For illustrative purposes, suppose a claim against a midwife is
for the amount of $140 000. This is above the Level 1 threshold of
$100 000 and below the Level 2 threshold of $2 million, set out in
clause 10. The eligible insurer is liable for the first $100 000,
plus 20 percent of $40 000, being the amount of $8 000. The
Commonwealth contribution is 80 percent of $40 000, being the
amount of $32 000, which is paid directly to the eligible
insurer.
The Medicare Australia CEO may decide that a Level 2
Commonwealth contribution is payable in relation to the liability
of the midwife where a claim against a midwife has been made, a
Level 2 qualifying claim certificate is in force and, where
appropriate, an apportionment certificate has been issued by the
Medicare Australia CEO. In addition, the liability of the midwife
must be a qualifying liability under
clause 19 which requires
that:
- the liability arises from a judgment or order of a court which
is not stayed or the subject of an appeal in relation to the claim,
settlement of the claim by way of written agreement, or some other
kind of liability arising from the claim such as legal costs
- the defence of the midwife was conducted appropriately[71]
- a legal practitioner has given a statutory declaration
certifying that the amount of liability is reasonable and
- the amount payable in relation to the claim is in accordance
with the proportion specified in the apportionment
certificate.
Finally, the Medicare Australia CEO must also ensure that each
of the following requirements is satisfied:
- the contract of insurance between the eligible insurer and the
midwife does not cover, or does not fully cover, the amount of the
liability:[72]
paragraph 18(1)(e)
- the amount that the eligible insurer would have been liable to
pay if the contract of insurance had fully covered the liability,
exceeds the amount that the eligible insurer is liable to pay under
the actual contract of insurance: paragraph
18(1)(f), and
- the total of the amounts the insurer has paid, (or is liable to
pay) under the actual contract of insurance and the other amounts
that the insurer has become liable to pay in respect of the claim,
equals or exceeds the Level 2 claim threshold: paragraph
18(1)(g).
The effect of clause 20 is that, in calculating
the amount that the eligible insurer is liable to pay under the
actual contract of insurance, no account should be taken of any
Level 1 or run-off cover Commonwealth contribution that may be
payable to the eligible insurer. This means that for a claim which
exceeds the $2 million Level 2 threshold, a Level 1 or run-off
cover Commonwealth contribution may also be payable to an eligible
insurer.
A Level 2 Commonwealth contribution is made to the person who
applies for it: subclause 18(2), that is, the
eligible insurer, the midwife or a person acting on behalf of the
midwife. The decision of the Medicare Australia CEO to refuse an
application for Level 2 Commonwealth contribution is subject to
review by the Administrative Appeals Tribunal: subclause
18(4).
Where the Level 2 Commonwealth contribution is paid to the
midwife or a person acting on behalf of the midwife (referred to as
the recipient) clause 22
requires the Medicare Australia CEO to send a notice to the
recipient advising how the Level 2 Commonwealth contribution is to
be dealt with:
- if the amount is less than or equal to the undischarged amount
of the liability, the recipient must apply the whole of the
contribution to discharge the liability: subclause
22(3)
- if the amount is greater than the undischarged amount of the
liability the recipient must
- discharge the liability: paragraph 22(4)(a)
and
- if the recipient is not the midwife, deal with the balance in
accordance with the directions of the midwife: paragraph
22(4)(b).
If the recipient does not comply with the terms of the notice
the amount of the contribution becomes a debt due to the
Commonwealth: subclause 22(6).
Where an amount of Level 2 Commonwealth contribution has been
paid in respect of a claim against a midwife, and the person who
applied for the contribution becomes aware that another amount has
been paid in respect of the same incident, the applicant must
notify the Medicare Australia CEO that the other amount has been
paid:[73]
clause 26. A failure to notify is an offence of
strict liability[74] and is subject to a maximum penalty of 30 penalty
units.[75]
Where the appropriate notification is made, clause
25 provides that the amount of Level 2 Commonwealth
contribution is to be recalculated. The effect is to reduce the
Level 2 Commonwealth contribution in respect of the claim. The
difference between the amount of Commonwealth contribution actually
paid and the reduced amount is a debt due to the Commonwealth which
may be recovered by the Medicare Australia CEO. Where an
overpayment arises under clause 25, the Medicare Australia CEO may
give notice to the liable person of the
amount of the overpayment and the day on which the repayment of the
amount is due, being at least 28 days from the date of the notice:
clause 27.
Importantly, clause 23 sets out who is the
liable person in relation to an
overpayment of Level 2 Commonwealth contribution as follows:
- if the contribution has not yet been dealt with in the manner
set out in the notice given by the Medicare Australia CEO under
clause 22(2) the person to whom the Level 2 Commonwealth
contribution was paid
- if the contribution has been dealt with in the manner set out
in the notice given by the Medicare Australia CEO under clause
22(2) the midwife.
Any part of the debt which is unpaid on the due date is subject
to a late payment penalty which is calculated at a rate specified
in the Rules: subclauses 28(1) (2). The Medicare
Australia CEO may remit the whole or a part of a late payment
penalty if there are good reasons for doing so: subclause
28(3). A decision not to remit, or to only partially
remit, a late payment penalty is reviewable by the Administrative
Appeals Tribunal: subclause 28(4).
For illustrative purposes, suppose a claim against a midwife is
for the amount of $2.4 million which is above the Level 1 and the
Level 2 threshold amounts. The eligible insurer applies for Level 1
Commonwealth contribution and the midwife applies for Level 2
Commonwealth contribution. The claim is paid as follows:
- the eligible insurer is liable for the first $100 000, that is,
the amount below the Level 1 threshold plus 20 percent of $1 900
000,[76] being $380
000
- the Level 1 Commonwealth contribution, payable to the eligible
insurer, is 80 percent of $1 900 000 being $1 520 000
- the Level 2 Commonwealth contribution, payable directly to the
midwife, but to be applied in accordance with a notice from the
Medicare Australia CEO, is $400 000 being the amount in excess of
the Level 2 threshold.
An eligible run-off claim relates to
an incident that occurred on or after 1 July 2010 and on or before
the run-off cover termination date in
connection with a person s practice as an eligible midwife:[77] paragraph
31(1)(b). If a run-off cover termination
date has been specified in the Rules,
paragraph 31(1)(c) operates so that a person
already eligible under the scheme will continue to have their
claims covered by the terminated scheme until they cease to be
eligible.
A claim is an eligible run-off claim
if the person against whom the claim is made has midwife
professional indemnity run-off cover that indemnifies the person in
relation to the claim: paragraph 31(1)(d).
An eligible run-off claim may be
brought in respect of the following:
- a person aged 65 years or over who has permanently retired from
private practice as an eligible midwife, or regardless of age, has
not practiced as an eligible midwife during the preceding three
years: paragraphs 31(2)(a) (b)
- a person who has ceased practice as an eligible midwife due to
maternity or a permanent disability: paragraphs 31(2)(c)
(d)
- a person who is the legal personal representative of a deceased
person who had been an eligible midwife: paragraph
31(2)(e), and
- a person who is included in a class of persons specified in the
Rules: paragraph 31(2)(f).
According to subclause 32(1) run-off cover
Commonwealth contributions are payable to an eligible insurer if,
amongst other things, an eligible run-off claim is made, an
apportionment certificate is in force if appropriate, the eligible
insurer is liable to make a payment in relation to the claim under
a contract of insurance in the normal course of business, and the
eligible insurer applies to the Medicare Australia CEO for a
contribution.
The amount of run-off cover Commonwealth contribution is the
amount payable in accordance with the apportionment certificate:
paragraph 32(1)(g).
Where a run-off cover Commonwealth contribution has been
calculated without having regard to any other payments made in
respect of the claim, the amount of the contribution is to be
recalculated and reduced: clause 36. The same
applies where an amount is paid to a midwife, eligible insurer or
other person after the run-off cover Commonwealth contribution has
been paid: clause 37. The difference between the
amount of contribution that has been paid, and the amount that
should have been paid, is an overpayment which is recoverable by
the Medicare Australia CEO: subclauses 37(2) and
(4).
The Medicare Australia CEO must notify the eligible insurer in
writing of the amount overpaid, and the date by which it must be
paid, being no less than 28 days from the date on which the notice
is given: clause 39. Where the debt remains wholly
or partly unpaid after the due date, it is subject to a late
payment penalty at a rate specified in the Rules: clause
40.
The manner in which run-off cover works is slightly confusing
for the following reasons:
- The Bill distinguishes between those claims for which a Level 1
or Level 2 Commonwealth contribution, and those for which a run-off
cover Commonwealth contribution, are paid. Level 1 or Level 2
Commonwealth contributions are payable where there is a qualifying
claim certificate. One of the common requirements for a qualifying
claim certificate is that there is a contract of insurance entered
into by an eligible insurer that provides midwife professional
indemnity cover in relation to the claim.[78]
- In comparison, a claim for a run-off cover Commonwealth
contribution is payable without the requirement of a qualifying
claim certificate, and only in respect of contract of insurance
entered into by an eligible insurer that provides midwife
professional indemnity run-off cover.[79]
- Clause 5 defines the terms midwife
professional indemnity cover and midwife
professional indemnity run-off cover as being two
separate types of insurance cover which are provided to two
separate classes of persons.
- The contradiction arises in subclause 35(2)
which provides that an amount of run-off cover Commonwealth
contribution is reduced by the amount of any Level 1 or Level 2
Commonwealth contributions which have been paid. Given that there
are different requirements for payment it is difficult to see how
all three types of contribution could be paid in respect of one
claim. It does appear from the drafting of the Bill that the
contributions are intended to be different, as Level 1 and Level 2
Commonwealth contributions are covered by Part 2 of Chapter 2 of
the Bill, whereas run-off cover Commonwealth contributions are
covered by Part 3 of Chapter 2 of the Bill.
- Adding to the confusion is the reference in paragraphs
16(1)(a) and 18(1)(a) in Part 2 of
Chapter 2 to the current claim and the
reference in paragraph 32(1)(a) in Part 3 of
Chapter to the current claim . The term
in Part 2 refers to a claim in relation to which a Level 1 or Level
2 qualifying claim certificate is in force[80] and the term in Part 3 means an
eligible run-off claim. This runs contrary to the expectation that
where a word is used consistently in legislation it should be given
the same meaning consistently .[81]
If it was intended that all types of Commonwealth contribution
could be payable in respect of a run-off cover claim, this should
be clarified.
Once a run-off cover termination date
has been set the amount of Commonwealth contribution (paid out of
the Consolidated Revenue Fund) is to be calculated in accordance
with clauses 41 44.
Clause 42 introduces the term
affected eligible midwife . An eligible
midwife is an affected eligible midwife
if:
- a run-off cover termination date has been set
- before that date, premiums have been paid by the midwife in
respect of midwife professional indemnity cover in relation to one
or more periods totalling 12 months and
- immediately before the run-off cover termination date the
eligible midwife was not a person in respect of whom an eligible
run-off claim could be made, that is, the eligible midwife did not
satisfy any of the conditions of clause 31(2).
The Commonwealth is to make payments in respect of an affected
eligible midwife to the person nominated as the provider of the
midwife s professional indemnity cover, as part of the premium
payable in respect of that insurance cover, within 12 months of the
run-off cover termination date. The total of the payments must not
exceed the eligible midwife s total run-off cover
credit : clause 43. The method for calculating total
run-off cover credits is set out in clause 44.
Before a decision can be made about the amount of the
Commonwealth contribution, it is necessary to determine whether an
apportionment certificate is to be
issued. Clause 53 requires an eligible insurer of
a midwife to apply for an apportionment certificate in relation to
a claim, if the insurer considers that there is another person
against whom a claim has been, or is reasonably likely to be made
in relation to the incident which is the subject of the claim. In
that case, the eligible insurer must apply for the apportionment
certificate in the manner and form required by the Medicare
Australia CEO: subclause 53(2). The time limits
for making the decision are the same as those set out in clause 13
above: clause 54.
Under clause 51 the Medicare Australia CEO may
issue an apportionment certificate in relation to a claim against a
midwife where a qualifying claim certificate has been issued and a
claim for the apportionment certificate has been made in accordance
with clause 53. The apportionment certificate specifies the
proportion of overall liability which is to be attributed to the
midwife and any other person or persons against whom a claim has
been made or is likely to be made in respect of the incident:
subclause 51(2). In making the decision about the
proportional liability of each party, the Medicare Australia CEO
may have regard to the information provided in the application and
any other information that is considered to be appropriate:
subclause 51(6) but is not required to have regard
to any information beyond that which was included in the
application: subclause 51(7).
The Medicare Australia CEO must pay a Level 1 Commonwealth
contribution or a run-off cover contribution to an eligible insurer
before the end of the month which follows the month in which the
application for contribution is made: subclause
59(1). For example, if an eligible insurer applies for
Level 1 Commonwealth contribution on 11 May of a year, the payment
must be made by 30 June of the same year.
The exceptions to this are:
- where the Medicare Australia CEO requests further information
in relation to the claim and that information is not provided
within the above time frame, the payment must be made before the
end of the month which follows the month in which the information
is provided: subclause 59(2). For example, an
eligible insurer applies for contribution on 11 May of a year.
Further information is requested but not received until 3 July of
that year. In that case payment must be made no later than 31
August of the same year.
- where the Medicare Australia CEO has received both an
application for a qualifying claim certificate and an application
for Level 1 Commonwealth contribution, the former is to be
determined before any time limits apply to the payment of the
latter: subclause 59(3).
An application for payment of Level 2 Commonwealth contribution
cannot be made more than 28 days after the date of a judgment or
court order in relation to liability and is no longer subject to
appeal or an action to stay; or the date that a settlement
agreement was entered into: subclause 60(3). The
Medicare Australia CEO may accept a late application where there
are good reasons for doing so: subclause 60(4). A
decision not to accept a late application is subject to review by
the Administrative Appeals Tribunal: subclause
60(5).
The Medicare Australia CEO must decide an application for Level
2 Commonwealth contribution on or before the 21st day
after the day on which the application is received:
subclause 61(1). Where a decision is made to grant
the application, payment of the contribution must be made as soon
as practicable after making that decision: subclause
61(4).
The Medicare Australia CEO is empowered to require information
from a person if there are reasonable grounds for believing that
the person is capable of giving information which is relevant to,
amongst other things, whether a Commonwealth contribution is
payable, the amount of the contribution and any future liability to
Commonwealth contributions of a particular kind: subclause
62(1). The information may be required from an insurer, an
eligible midwife or person who was formerly an eligible midwife, a
person acting for an eligible midwife or former eligible midwife,
or the legal personal representative of a person who was formerly
an eligible midwife: subclause 62(2). Requests for
information must be in writing, state the information required and
allow for at least 28 days in which the information is to be given:
subclause 62(5).
Persons who apply for a Commonwealth contribution and/or a
qualifying claim certificate are obliged to keep the records set
out in clause 63. Those records must be kept for a
period of five years, or another period specified in the Rules,
starting on the later of, the day on which the records were created
or the day on which this Act commenced.
Clause 64 provides that an amount of
Commonwealth contribution which is overpaid is a debt due to the
Commonwealth by the liable person. In the
case of a Level 1 Commonwealth contribution the liable person is
the eligible insurer. The liable person for a Level 2 or run-off
cover Commonwealth contribution may be the eligible insurer, the
midwife or a person acting on behalf of the midwife. Under
subclause 64(4) the amount overpaid may be
recoverable by an action by the Medicare Australia CEO in a court
of competent jurisdiction, by deduction from a Commonwealth
contribution payable to the liable person or by garnishee.
Four offences are created under the Act being:
- failure to give information in response to a formal request
from the Medicare Australia CEO: clause 66
- failure to notify a matter to the Medicare Australia CEO:
clause 67
- failure to keep and retain records: clause
68
- failure to include the required information in invoices:
clause 69.
These offences are strict liability
offences and each has a maximum penalty of 30 penalty
units.
Chapter 3 Run-off cover support payments
Chapter 3 of this Bill provides for the payment and
administration of run-off cover support payments (ROCS).[82] ROCS payments, imposed
under the Midwife Professional Indemnity (Run-off Cover Support
Payment) Bill 2009, are a tax on the premium income of eligible
insurers in respect of midwife professional indemnity insurance
contracts in a contribution year. According to clause
74 of this Bill the Rules may provide that a person is
exempt from making a ROCS payment in certain circumstances or for a
particular contribution year.
Clause 75 provides that the ROCS payments in
respect of a contribution year become due and payable on 30 June of
the contribution year or on another day specified in the Rules. A
late payment penalty will be applied to any unpaid amount of ROCS
payments at a rate which will be specified in the Rules:
subclauses 76(1) and (2). The
Medicare Australia CEO may remit the whole or part of the late
payment penalty if there are good reasons for doing so:
subclause 76(3). The decision of the Medicare
Australia CEO is reviewable by the Administrative Appeals Tribunal:
subclause 76(4).
Both the ROCS payment and any late payment penalty are debts due
to the Commonwealth and are recoverable by the Medicare Australia
CEO in a Court of competent jurisdiction: clause
79. The Medicare Australia CEO has the power to recover a
payment debt arising under clause 79 by
garnishee action: clause 80. Where a third party
fails to comply with a garnishee notice, so far as they are able to
do so, they commit an offence. The penalty is 20 penalty units
which is equivalent to $2 200. The offence is an offence of strict
liability. The explanatory memorandum does not indicate whether the
Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers was considered in the course of framing the
strict liability offence.
Clause 82 empowers the Medicare Australia CEO
to give written notice to a person seeking information about a
liability to pay a ROCS payment if there are reasonable grounds for
believing that the person is capable of giving that information. A
person who is given a notice which complies with the terms of
clause 82 commits an offence if they fail to provide the requested
information. The penalty is 30 penalty units which is equivalent to
$3 300: clause 84. The offence is an offence of
strict liability.
Clauses 86 and 87 make clear
that the Medicare Australia CEO is to have the general
administration of the Midwife Professional Indemnity
(Commonwealth Contribution) Scheme Act 2009 and the
Midwife Professional Indemnity (Run-off Cover Support Payment)
Act 2009; and will undertake functions under those acts.
Clause 90 provides that the Minister may make
Rules by legislative instrument about matters required or permitted
under the Act or which are necessary and convenient to give effect
to the Act. Clause 91 contains a regulation making
power in similar terms.
The Bill s broadening of access to insurance coverage has
generally been well received, however not all the implications of
the arrangements are clear. The Bill provides considerable scope
for rule making. At this stage it appears that it is the intention
of the Government to make a rule which will exclude those midwives
who are involved in homebirths from the benefit of the insurance
scheme, however the role of insurance in setting the direction of
health policy has not been universally embraced.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library by telephoning Paula
Pyburne (02) 6277 2434 for matters relating to the main provisions;
and Kirsty Magarey (02) 6277 2680 or Rhonda Jolly (02) 6277 2429
for matters relating to policy.
Paula Pyburne
Kirsty Magarey
Dr Rhonda Jolly
12 August 2009
Bills Digest Service
Parliamentary Library
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Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
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