Bills Digest no. 61 2009–10
Health Insurance Amendment (New Zealand Overseas Trained
Doctors) 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: 21 October
2009
House: House of Representatives
Portfolio: Health and Ageing
Commencement:
Sections 1 to 3 will
commence on Royal Assent. Schedule 1 will commence on 1 April 2010
or on Royal Assent, whichever is the later date.
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 purpose of the Health Insurance Amendment (New Zealand
Overseas Trained Doctors) Bill 2009 (the Bill) is to amend the
Health Insurance Act 1973 (the Act) to remove:
- restrictions which apply to New Zealand permanent resident and
citizen medical practitioners who have obtained their primary
medical education at an accredited medical school in Australia or
New Zealand
- the specification in the Act that the period of ten years
during which overseas trained doctors are restricted from accessing
Medicare benefits must commence from the time the doctors become
permanent Australians, even if they became medical practitioners
prior to gaining that residency status.
The Bill also introduces a time period in which medical
practitioners can appeal against the refusal to grant a section
19AB exemption, or a decision to impose conditions in connection
with an exemption which has been granted.
Committee consideration
The Senate Standing Committee for the Scrutiny of Bills had no
comment to make on this Bill.[1] The Bill has not been referred to a committee for
inquiry and report by the Senate Selection of Bills Committee.
In the mid 1990s, the view that Australia produced sufficient
medical practitioners to meet the health needs of the population,
which had dominated policy thinking for some years, began to be
questioned as doctor shortages became increasingly obvious in rural
and remote areas. Initially, because general practitioners and
specialists were concentrated in major urban areas, it was
considered that rather than there being actual shortages in the
medical workforce, there was a mal distribution between the bush
and metropolitan areas. This thinking prompted the Howard
Government, following its election in 1996, to introduce
legislation and initiatives intended to address medical workforce
mal distribution.
As there is a constitutional restraint on governments which
prevents them from introducing legislation to conscript the
services of Australian medical practitioners to work in certain
areas, doctors who had obtained their primary medical
qualifications overseas became the focus of the Government s
strategy.[2]
Amendments to the Act were introduced which obliged these doctors
to agree to practice in rural and remote areas where medical
workforce shortages had been identified, if they wished to access
Medicare benefits for the services they provided.
In addition to the restrictions on overseas trained doctors, the
Government limited the granting of new Medicare provider numbers to
people who had achieved minimum proficiency qualifications, (that
is, specialist medical qualifications), including specialist
general practitioner qualifications.
These restrictions have become known as the provider number
restrictions,
The minimum proficiency requirements for new medical
practitioners are imposed under section 19AA of the Act. Under this
section, medical doctors who were first recognised as medical
practitioners on or after 1 November 1996 are unable to claim
Medicare benefits, unless they satisfy certain conditions. These
are that they are recognised general practitioners, specialists or
consultant physicians or they are undertaking approved, authorised
placements.[3]
Section 19AB of the Act imposes restrictions on medical
practitioners who did not obtain their primary medical
qualifications in Australia. These medical practitioners are known
as overseas trained doctors or International Medical
Graduates.
Under the 1996 legislation, permanent resident overseas trained
doctors were not subject to the restrictions if, before 1 January
1997, they were registered with an Australian Medical Board or
eligible to have their qualifications assessed by a Board. However,
those who did not meet this requirement were not eligible to claim
Medicare for a certain period. These restrictions are commonly
referred to as the ten year moratorium.
Temporary resident overseas trained doctors are subject to
restrictions under section 19AB of the Act for an indefinite
period.
Exemptions to the requirements under section 19AB can be granted
to overseas trained doctors if they agree to work in areas where
there have been medical workforce shortages identified. These areas
are known as Districts of Workforce Shortage (DWS). DWS are areas
in which the community is considered to have less access to medical
services than that experienced by the population in general. This
can be because of the remote nature of certain communities or
because of the lack of services available to those communities, or
a combination of these two factors.
In her second reading speech on this Bill, Minister Roxon
iterated the view that provider number restrictions under section
19AB have had a significant impact on medical workforce outcomes
for rural and remote areas of Australia.[4] The previous Government also maintained
that this had been the case.[5] Other health organisations, particularly those who deal
with rural and remote health issues, agree. Organisations like the
National Rural Health Alliance praise the valuable contribution
overseas trained doctors have made in rural and remote areas. The
Rural Health Workforce Australia (RHWA) argues also that without
overseas trained doctors current standards of health care delivery
would not be possible.[6]
The Government s 2008 audit of the rural health workforce
suggests that section 19AB has indeed made a difference in
providing more services to the bush. Moreover, the contribution of
overseas trained doctors continues to be fundamental to the
delivery of health care in rural and remote areas. According to the
audit, in February 2008, the majority of overseas trained doctors
who were working in general practice were located in rural and
remote areas.[7]
At the same time, an influx of overseas trained doctors into
rural and remote DWS as a result of provider number restrictions
was not intended as the sole solution to the rural health workforce
crisis. The Howard Government put in place various other workforce
schemes which were intended to complement the provider number
strategy. The present Government has maintained these initiatives.
It has also introduced further strategies and commissioned research
projects aimed at finding further solutions. One important plan
adopted by both governments has been to increase the numbers of
medical student places to supplement the supply of Australian
trained doctors in the future. The effects of this policy will not
be felt for several years, however. In addition, there is no
certainty that the policy will produce sufficient numbers of
graduates who choose to practise in rural and remote areas.[8] Nevertheless, there are
expectations that combined with complementary strategies, such as
those to provide more generous incentives for doctors to practise
in rural and remote areas, it can assist in making Australia less
reliant on the services of overseas trained doctors.[9]
Under the 1973 Trans-Tasman Travel Arrangement, Australian and
New Zealand citizens are entitled to rights to visit, live and work
in each other s country without the need to apply for authority to
do so. Changes to the Migration
Act 1958 in September 1994, which required all non-citizens
lawfully in Australia to hold visas, however, led to the
introduction of a special visa to accommodate the Australia New
Zealand relationship. Under the Australian Special Category Visa
(SCV), when New Zealand citizens present their passports at
immigration, they are considered to have applied for a visa and,
subject to health or character considerations, they automatically
receive an SCV. The SCV is then recorded electronically.[10]
It is not necessary for a New Zealand citizen who holds an SCV
to apply for, or be granted permanent residence in Australia. The
SCV allows a New Zealand citizen to remain and work in Australia
lawfully as long as that person remains a New Zealand citizen.
New Zealand citizens who arrive in Australia on or after 27
February 2001 must apply for, and be granted Australian permanent
residence if they wish to access certain social security payments,
obtain Australian citizenship or sponsor their family members for
permanent residence.[11]
Under the current regulations, it can be argued that New Zealand
medical students do not enjoy the unique status generally afforded
to their fellow citizens. The SCV which allows New Zealand citizens
to live and work in Australia for as long as they retain their New
Zealand citizenship gives them in effect, permanent resident status
without the need to attain permanent residency. On the other hand,
New Zealand citizens who have not taken out official permanent
residency, and who enrol in Australian medical schools, do not
enjoy this status. These New Zealanders are treated as temporary
residents. This is because these students are currently captured
under the definition in section 19AB former overseas medical
student . At present, this means a person:
- whose primary medical qualification was obtained from a medical
school located in Australia and
- who was not a permanent resident or an Australian citizen when
he or she first enrolled at a medical school in Australia.
This Bill proposes to remove New Zealand citizens
and permanent residents from the category of former overseas
medical students. Because of the negligible number of New Zealand
medical students studying in Australian medical schools, this is
unlikely to have any significant effect on the numbers of doctors
whose practice is restricted to DWS.[12]
It should be noted that the proposed changes to
the legislation will not exempt New Zealanders from the
requirements under section 19AA of the Act. Like all Australian
trained doctors, New Zealand graduates of Australian medical
schools will be required to gain postgraduate specialist medical
qualifications or be in approved placements before they are able to
access Medicare.
Legislative changes to the Act were made in 2001 to insert a
condition that for those doctors registered before 18 October 2001,
the ten year moratorium applied from their first recognition as
medical practitioners as defined under the Act. However, for those
first registered after 18 October 2001, the restriction applied
from the time they were granted permanent residency.
These changes were introduced to close what was thought to be a
loophole in section 19AB. This loophole may have permitted some
overseas trained permanent resident doctors to deem their
moratorium to have commenced from their first receipt of an
exemption as a temporary resident doctor under the then in
existence section 3J(1)(d) of the Act.[13]
In effect, however, the 2001 change meant that some doctors were
restricted under the moratorium for periods of more than ten years.
This Bill proposes to rectify this situation by removing the
requirement that overseas trained doctors who are permanent
Australians must have both Australian permanent residency or
citizenship and medical registration for the ten year moratorium to
commence.
This Bill intends to make changes to assist in
improving the decision making processes associated with the Act. It
is intended that a time limit will be imposed on the period in
which a medical practitioner can request review of decisions under
section 19AB to refuse the grant of an exemption or to impose
conditions on an exemption.
Under the Act, a delegate of the Minister for
Health and Ageing decides if an area can be classified as a DWS and
if overseas trained medical practitioners can be granted exemptions
under section 19AB to allow them to work in the area. The delegate
takes into consideration a number of factors including the
population s access to medical services and the remoteness of the
area, as noted above. In addition, the delegate also considers a
number of other factors, which can change significantly over time,
but which can also alter within a short time frame. These include
the doctor to population ratio of areas. Doctor population ratio is
based on the most recent Medicare billing statistics available, but
the grant of even one exemption can mean that an area is considered
no longer in medical workforce shortage.[14] Therefore a delegate will also take
into consideration various circumstances in geographic areas
immediately surrounding practice locations where doctors may seek
exemptions. Further, the delegate considers other issues which may
indicate the need for more practitioners in an area a large
Indigenous population for example.
The imposition of a time limit on when application for reviews
of decisions made by a delegate can be undertaken will make it more
likely that the outcomes of review decisions will reflect the
specific circumstances under which the original decisions were
made.
Restrictions imposed under sections 19AA and 19AB have at times
attracted criticism. It was initially claimed, for example, that
section 19AA was intended to restrict the number of doctors
charging Medicare rather than enhancing the quality of medical
services delivered.[15]
Criticism of section 19AB restrictions has often tended to focus
on how the restrictions have prevented some doctors from working in
areas because those areas have not been deemed DWS. Stories of how
the legislation (or bureaucratic interpretation of the
requirements) has deprived communities of medical services have at
times also made for emotive press.[16]
In 2007, it was reported that an internal Department of Health
and Ageing investigation had found serious flaws which indicated
that the DWS process needed to be overhauled, particularly in
relation to the discretionary aspect of the grant of exemptions
under which a delegate decided whether shortages existed.[17] The same report noted
the argument that guidelines under section 19AB were in fact
discriminatory. This was because they favoured temporary residents
over permanent residents because temporary residents could be more
easily restricted to where they work .[18] Further, the report noted an indirect
criticism of section 19AB; that it should not be able to be used as
an excuse by which doctors could bypass Australian Medical Council
assessment of their qualifications.[19]
The issue of ensuring that overseas trained doctors who are
granted exemptions to work in rural and remote areas have adequate
and appropriate training and support has been the focus of
Australian Medical Association (AMA) comment in relation to the
operation of section 19AB restrictions.[20] At the same time, AMA has
consistently been of the opinion that there is no future in a
medical workforce policy based on large-scale importation of
overseas-trained doctors .[21]
Indeed, the AMA and the Australian Medical Students Association
(AMSA) have not been supportive of the provider number legislation
generally. AMSA has been particularly opposed to the application of
section 19AB to any foreign students trained in
Australian medical schools, not just to the New Zealand students
who are the subject of the proposed changes in this Bill. AMSA
considers it unfair that international students trained at
Australian medical schools to Australian standards should be
subject to the 19AB ten year moratorium. It believes that the
moratorium is counterproductive in this instance as it deters these
students from remaining in Australia to complete their training and
eventually to practice.[22]
The Rural Doctors Association of Australia (RDAA) has supported
the ten year moratorium until recently when it concluded that the
scheme had failed to address medical workforce shortages.[23] A survey undertaken by
RDAA prompted its changed policy stance after 60 per cent of
doctors surveyed argued that the provider number restrictions had
not helped them to recruit and retain doctors.[24] As noted above however, recent
workforce statistics indicate that this view is contestable.
Prior to the introduction of this Bill, AMA President, Dr Andrew
Pesce, wrote to the Health Minister to express the AMA s concerns
about anomalies in relation to the ten year moratorium.[25] Pesce welcomed the
intention to modify the Act as this Bill proposes, but he believed
the changes proposed were insufficient.[26] In keeping with the AMA s previous
views on provider number issues, Pesce added that more needed to be
done to address the situation whereby doctors were forced to work
for ten years with little support in an environment that can be
beyond the scope of their training .[27]
The AMA correspondence noted however, that the changes could
address cases such as that of Mike Belich, an Australian trained
doctor who had moved to Australia from New Zealand when he was 14
years old. Belich had been refused a Medicare provider number as a
result of the 19AB restrictions. It has been reported that Belich
has instigated a human rights case to challenge the moratorium
after Medicare had declared he was a foreign graduate. According to
Australian Doctor, Belich claims he was not informed that
a moratorium existed or that he would be subject to its
conditions.[28]
A number of other objections to the provider number legislation
surface regularly. A recent case has revived questions about the
legitimacy of section 19AB restrictions; that is, do they represent
civil conscription for medical practitioners which is prohibited
under section 51 of the Constitution. The Canberra Times
has reported on this issue that the moratorium may indeed be
unconstitutional after an Australian National University (ANU)
medical student sought legal advice on section 19AB.[29] The student, a
permanent resident subject to the ten year moratorium, was advised
that the High Court has indicated the civil conscription
prohibition could have a wide area of application and if tested,
the provider number restrictions could be found to be illegal.
Added to this advice, however, was the warning that a challenge to
the legislation would likely be time consuming and costly, and the
outcome could prove even worse for the doctors affected .[30]
It can be argued that this Bill also resurrects the issue of
what actually amounts to civil conscription for medical
practitioners. As was claimed recently in Wong v The Commonwealth,
is it the case that some provisions in the Act compel general
practitioners to participate in the Medicare system. While the
decision in Wong was that the particular provisions tested did not
constitute civil conscription, the point was made in this case that
the legislative history of section 51 (xxiiiA) treats civil
conscription as involving some form of compulsion or coercion, in a
legal or practical sense to carry out work or services .[31] Hence, decisions about
whether legislation authorises a form of civil conscription need to
be made with close attention to the legislative scheme in question,
in particular, to those aspects which are under challenge .[32]
It appears from the decision in Wong that the High Court has
been of the view that requiring the adherence to regulations which
are necessary to the provision of medical services does not
constitute civil conscription. Similarly, it appears the Court does
not consider even though the Act effectively requires medical
practitioners to participate in the Medicare scheme, that this
constitutes civil conscription. This is because the Court has ruled
that a medical practitioner is free to choose whether to practise ,
and where to practise , regardless of his or her choice to adhere
to the conditions imposed under Medicare.[33] Nevertheless, the changes proposed in
this Bill may prompt further investigation into provider number
regime and encourage others to instigate challenges to its
legitimacy.
According to the Explanatory Memorandum, the Bill will have
minimal financial impact. It is estimated that an ongoing saving of
approximately $0.2 million will be achieved. These savings are most
likely to be in administrative costs.
Part 1 of Schedule 1 to the Bill contains proposed amendments to
the Act.
Part 2 of Schedule 1 contains application provisions.
A number of items in this Bill are intended to deal with what
has been labelled an anomaly in the current legislation which has
been detrimental to New Zealand citizens or permanent residents who
have chosen to study medicine in Australia.
Items 1 and 3 propose to
amend subsections 19AB(1) and (2) of the Act to
replace the term former overseas medical student with the term
foreign graduate of an accredited medical school . Item
6 will insert a definition of the latter term. A foreign
graduate of an accredited medical school is to be considered a
person:
- whose primary medical qualification was obtained from an
accredited medical school and
- at the time he or she first enrolled at the accredited medical
school who was not
- a permanent Australian
- a New Zealand citizen or
- a permanent resident of New Zealand.
Item 5 proposes to
insert a definition of accredited medical school
which will mean a medical school that is:
- accredited by the Australian Medical Council and
- located in Australia or New Zealand.
Item 9 proposes to amend the definition
of permanent Australian. This item will replace the
current term permanent resident with the term holder of a permanent
visa (within the meaning of the Migration Act 1958) .
Item 10 proposes to repeal the current
definition of permanent resident.
The Bill also proposes to address what in some cases has
amounted to an unintentionally overly onerous application of the
ten year moratorium aspect of the legislation.
Items 2 and 4 of the Bill
propose to amend subparagraphs
19AB(1)(f)(ii) and 19AB(2)(f)(ii) in the
Act so that the ten year moratorium, which applies to overseas
trained doctors who are Australian permanent residents or citizens,
applies from the date on which the doctors first become registered
as medical practitioners.
Under the current legislation, the moratorium applies from the
date on which the persons become permanent Australians. This has
meant that in some cases doctors have been subject to the
moratorium for periods in excess of ten years. The Explanatory
Memorandum cites instances of up to 15 years, and notes that this
was not the intention of the original legislation.[34] It is expected that a number of
overseas trained doctors will no longer be subject to the ten year
moratorium as a result of the proposed changes to the
legislation.
Items 11 and 12 insert
new subsections 19AC(2A) and (3A) into
the Act. Section 19AC provides that persons who have been refused
19AB exemptions or who have had conditions imposed on exemptions
may apply for reviews of those decisions by the Minister or the
Minister s delegate.
At present, no time limit applies to when reviews of decisions
can be sought. Proposed subsections
19AC(2A) and (3A) will provide that
applications for reviews of decision must be made before a period
of 90 days has elapsed beginning on the day after the day that the
exemptions were refused or upon which conditions were imposed on
exemptions.
This Part provides for application of amendments proposed in the
Bill.
Item 13 proposes to define exemption condition
decision as a decision under subsection 19AB(4) of the Act which
imposes one or more conditions on an exemption. An exemption
refusal decision will also be defined as a refusal to grant an
exemption under subsection 19AB(3).
Item 14 proposes that section 19AB as amended
under this Bill will apply in relation to services rendered on or
after 1 April 2010 or Royal Assent, whichever is the later
date.
Items 15 and 16 provide that
proposed subsections 19AC(2A) and (3A), inserted under
items 11 and 12, will apply in
relation to exemption refusal decisions and exemption conditions
decisions made on or after 1 April 2010 or Royal Assent, whichever
is the later date. Where exemption refusal and extension condition
decisions are made before the Act commences, these proposed
provisions will apply as if the period of 90 days referred to in
those provisions began at the time of commencement.
Concluding
comments
Restrictions on provider numbers for overseas
trained medical practitioners were introduced in 1996 in an attempt
to address doctor shortages which at first it was thought were
confined to rural and remote areas. The restrictions were
criticised for a number of reasons and there continues to be some
argument that they have not achieved their objectives. However,
given the significant numbers of overseas trained medical
practitioners currently working in rural and remote areas, the
claim that the restrictions have had no discernable impact on the
medical workforce in the bush is less than convincing. There are
strategies in place to improve the numbers of Australian trained
doctors, which it is hoped will further improve the rural medical
workforce. These are long term solutions to medical workforce
shortages, however, and there can be no guarantee that Australian
trained doctors will opt to practice in areas of workforce
shortage. It is likely therefore that provider number restrictions
on overseas trained doctors will remain in place for some time.
Given that this is the case, the decision to
reconsider aspects of the restrictions that have been described as
particularly onerous and incongruous appears to be a judicious one.
Indeed, it appears particularly unfair that some practitioners have
been subject to restrictions for periods of more than ten years
when it was not the intention of the original legislation for this
to occur. Similarly, it appears contradictory to the special
relationship afforded New Zealanders in Australia that those who
chose to study medicine at Australian medical schools should be
disadvantaged upon graduation. The legislation intends to remedy
these anomalies.
The other proposed change in this Bill will set a
time limit on the period in which medical practitioners can seek
reviews of exemption decisions under section 19AB. Setting such a
limit also appears sensible as it is more likely to ensure that the
circumstances under which a review process is conducted reflects
the circumstances which prompted the original decision.
In effect, changes to the Act for New Zealand
citizens and permanent residents will not have a major negative
impact on the numbers of doctors who are required to complete a ten
year period of service in rural and remote areas of areas of
workforce shortage. There may be more impact on doctor numbers from
the second change proposed in this Bill, although it is not clear
how many practitioners have been subject to an extended moratorium.
However, in keeping with the original intent of the provider number
legislation, and from the perspective of fairness to doctors who
have already made a notable contribution to health in rural and
remote areas, it appears justifiable that any effects of the
proposed change should be absorbed. Finally, the third change in
this legislation is likely to have a positive effect for
administrative review process which may be as beneficial to those
seeking review of decisions as to those undertaking those
reviews.
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Dr Rhonda Jolly
12 November 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
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