Explanatory Memorandum
(Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
MEDICAL AND MIDWIFE INDEMNITY LEGISLATION AMENDMENT BILL 2019
The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Medical Indemnity Act 2002 , the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003 and the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 to:
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- simplify the current legislative structure underpinning the Government's support for medical indemnity insurance;
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- repeal redundant legislation;
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- remove the existing contract requirements for the Premium Support Scheme (PSS) and incorporate the necessary requirements in legislation;
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- require all medical indemnity insurers to provide universal cover to medical practitioners;
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- maintain support for high cost claims and exceptional claims made against allied health professionals and enable exceptional cost claims to be made, which is provided for in a separate scheme to medical practitioners;
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- support high cost claims and exceptional cost claims made against private sector employee midwives not covered under the MPIS;
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- clarify eligibility for the Run-off Cover Schemes (ROCS) and permit access for medical practitioners and eligible midwives retiring before the age of 65;
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- cause an actuarial assessment to report on the stability and affordability of Australia's medical indemnity market, with the report to be laid before each House of Parliament; and
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- streamline reporting obligations and improve the capacity for monitoring and information sharing.
Human rights implications
The Bill engages the following human rights:
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- the right to be presumed innocent until proven guilty in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR);
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- the rights against arbitrary or unlawful interference with an individual's privacy, family, home or correspondence in Article 17(1) of the ICCPR; and
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- the right to health in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Right to be presumed innocent until proven guilty
Schedule 5 to the Bill engages with the right to be presumed innocent until proven guilty in Article 14(2) of the ICCPR.
Article 14(2) of the ICCPR provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The protections in Article 14(2) of the ICCPR only apply in criminal proceedings. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt. Offence provisions that place an evidential or legal burden on the defendant and no-fault offences, such as strict and absolute liability offences, which allow for the imposition of criminal liability without the need to prove fault, will engage the presumption of innocence. This is because a defendant's failure to discharge the burden or the lack of a burden altogether may permit their conviction despite reasonable doubt as to their guilt.
A failure to comply with new sections 53A, 53C and 53E, which are inserted by Schedule 5 to the Bill, will be offences of strict liability. The amendments in Schedule 5 will ensure that the new strict liability offences will apply with respect to a failure to keep and retain records, failing to report and failing to give information.
The provisions contained in that Schedule are compatible with human rights, as they do not limit human rights or freedoms of individuals. The provisions regulate insurance companies (medical indemnity insurers) to ensure they are providing adequate professional indemnity cover to practitioners and to monitor these activities in the interest of practitioners and patients.
The offence provisions in sections 53A, 53C and 53E deal with circumstances where fault may be difficult to prove due to the complex nature of medical indemnity operations and the prevalence of multiple insurance arrangements. The requirement to keep records, report and provide information are designed to keep records of whether insurance companies are maintaining their requirements to provide universal cover to medical practitioners.
A penalty of 30 penalty units is considered appropriate for a failure to comply with a direction (general or remedial) given to a Medical Defence Organisations or medical indemnity insurer by the Secretary of the Department of Health (new sections 53A, 53C and 53E). This is lower than, and consistent with, the preference stated in A Guide To Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 for a maximum 60 penalty units for offences of strict liability.
Rights against arbitrary or unlawful interference with an individual's privacy, family, home or correspondence
Items 17 and 28 of Schedule 3 to the Bill, which is near identical, amend sections 77 and 88 of the Medical Indemnity Act 2002 and the Midwife Professional Indemnity Act (Commonwealth Contribution) Scheme Act 2010 , respectively. Sections 77 and 88 of the relevant Acts prohibit the disclosure of protected information and documents (protected material) which gives rise to a criminal offence, except in limited circumstances. The effect of items 17 and 28 create further circumstances in which protected material may be disclosed. These circumstances include:
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- monitoring, assessing or reviewing the operation of the medical indemnity legislation (legislation operation), and
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- conducting, or assisting a person to conduct, the evaluation mentioned in section 78A (section 78A evaluation).
These measures engage the right to privacy under Article 17 of the ICCPR, which prohibits arbitrary or unlawful inference with an individual's privacy, family, home or correspondence. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of personal and private information.
The purpose of the provisions is to assist with the monitoring and assessing of medical indemnity legislation and for the conduct of a section 78A evaluation. This is a reasonable, legitimate and necessary objective, as well as proportionate to the objectives it seeks to achieve, as this goes to the functioning of the relevant legislative schemes.
Items 17 and 28 provide a prescribed list of persons who may disclose protected information in the circumstances specified above and limits the persons to whom that information may be divulged. Having a prescribed lists of specified persons who may disclose and receive the protected information for a specified certain purpose is reasonable and proportionate.
The section 78A evaluation would require the Minister to table a report in each House of the Parliament (item 19 of the Bill), consideration has been given to how item 19 would operate with regard to protected information. Protected information would not be included in a report unless such information is appropriately de-identified.
Right to health
Article 12(1) of the ICESCR promotes the right of all individuals to enjoy the highest attainable standard of physical and mental health. This includes the creation of conditions which would assure to all service and medical attention in the event of sickness (Article 12(2)(d)). While the ICESCR contains no definition of health, the UN Committee on Economic Social and Cultural Rights ('the Committee') provides further guidance, stating that the right to health is not to be understood as a right to be healthy.
Accordingly, the right also contains entitlements, which include the right to a system of health protection, which provides equality of opportunity for people to enjoy the highest attainable level of health.
The amendments in the Bill, and its primary focus, is to further strengthen a system of protection and access to services for Australians by ensuring that medical and allied health practitioners, including midwives, have access to affordable medical indemnity insurance and that medical indemnity market remains stable. These practitioners are required to maintain professional indemnity insurance in order to practice in Australia. Affordable and stable medical indemnity insurance enhances patient access to health care services.
The remainder of the amendments made by the Bill are mechanical or technical in nature and do not abridge or otherwise engage with applicable human rights or freedoms.
Conclusion
The Bill is compatible with human rights, and in particular, supports the right to health.