Explanatory Memorandum
(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Amanda Vanstone)Schedule 3 - further amendment of the social security law
Item 1 inserts a reference to the new subsection 197(2A) into the definition of profoundly disabled child in subsection 197(1). As a result, if a child satisfies the new subsection 197(2A), the definition of profoundly disabled child will be met, and the existing criteria in subsection 197(2) will not need to be considered in that case.
Item 2 inserts a condition into subparagraph 197(2)(c)(vi) which requires a medical practitioner to certify in writing that a child has a terminal condition for which palliative care has replaced active treatment. This will give effect to current practice and is consistent with the new subsection 197(2A) (see item 10).
Item 3 inserts a new subsection 197(2A) into the definition of profoundly disabled child in subsection 197(2).
Where a carer claims carer payment in respect of a disabled child (or children) for whom they provide care, the child must satisfy the definition of profoundly disabled child in subsection 197(2) of the Social Security Act. Currently, the definition of profoundly disabled child in subsection 197(2) requires that the child must satisfy the criteria in each of paragraphs 197(2)(a), 197(2)(b) and 197(2)(c), including meeting at least three of the seven criteria in paragraph 197(2)(c). One of these criteria, in subparagraph 197(2)(c)(vi) provides that in the case of a child with a terminal condition, a medical practitioner must have certified that palliative care has replaced active treatment for that child. Concerns have been raised that this requirement may unfairly exclude terminally ill children who continue to receive active treatment until their death. The process of establishing an additional two criteria under paragraph 197(2)(c), after establishing that the terminally ill child has satisfied subparagraph 197(2)(c)(vi), may also be considered unduly intrusive and traumatic for the child and their family.
New subsection 197(2A) is intended to address these concerns. New subsection 197(2A) introduces a separate requirement with the effect that a child will be a profoundly disabled child if a medical practitioner has certified, in writing, that the child is in the advanced phase of a terminal condition and has a life expectancy of weeks or months, or is unlikely to live for a period substantially greater than 12 months. The child must also require continuous personal care for the remainder of their life because of their terminal condition.