Details of the Financial Framework (Supplementary Powers) Amendment
(Health Measures No. 3) Regulations 2020

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Health Measures No. 3) Regulations 2020.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after the instrument is registered on the Federal Register of Legislation.

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Item 1 - In the appropriate position in Part 4 of Schedule 1AB (table)

 

This item adds four new table items to Part 4 of Schedule 1AB to establish legislative authority for government spending on certain activities that will be administered by the Department of Health (the department).

 

New table item 410 establishes legislative authority for government spending on the Perinatal Mental Health and Wellbeing Program (the program).

 

The program will provide for perinatal mental health support, perinatal loss and bereavement peer support, promotion and training activities. The program will also improve the range of services available at a national level to support the mental health and wellbeing of new parents affected by or at risk of perinatal mental illness, or experiencing grief after the death of a child to prevent the development of mental illness.

 

Government funding will be delivered as a new grants program through two streams: a 'continuing support' grant opportunity to maintain existing funding for services already being delivered; and an 'emerging priorities' grant opportunity targeting new services that address gaps in current service provision.

 

Activities under both grant streams will focus on formal, specialised services that are directed in a specific manner to preventing, treating or controlling perinatal mental illness, and are delivered at a national level. Services in both streams may include counselling, peer support, treatment programs, resources and information, referral services/directories, health promotion/awareness and training and education for providers. In both streams, these services may be delivered through a range of methods, including telephone, online, smartphone apps and face-to-face. The aim of the services in both streams will be to provide support to expectant and new parents experiencing or at risk of perinatal mental illness and parents and families experiencing distress after birth trauma, miscarriage, stillbirth or infant death to prevent the development of mental illness.

 

Continuing Support

 

The continuing support grant opportunity will be a closed and non-competitive funding round to support continued service provision from existing organisations currently receiving funding through the ceasing Maternity Peer Support Program, and through ad-hoc funding arrangements.

 

These organisations are:

*         Perinatal Anxiety and Depression Australia, to deliver the National Perinatal Anxiety and Depression Helpline for women experiencing perinatal mental illness, their partners and families;

*         Red Nose, to provide telephone and online peer support to families who have experienced the sudden or unexpected death of a baby or young child;

*         Parent-Infant Research Institute, for the provision of a perinatal depression online support tool and smartphone app to help women who are affected by, or at risk of perinatal depression and anxiety; and

*         Sands - Miscarriage, Stillbirth, Newborn Death Support Limited, to provide telephone support and other peer support services to families experiencing grief after miscarriage, stillbirth or infant death.

 

Services provided and delivery mechanisms will include:

*         perinatal anxiety and depression counselling, support, information and referral to local medical, mental health or family services via a telephone helpline for new and expectant parents;

*         telephone, online and face-to-face peer support (organised group meetings with peer support workers or counsellors) for families experiencing grief after miscarriage, stillbirth or infant death;

*         support and treatment of women experiencing perinatal depression through an online program and smartphone app;

*         training for counsellors and peer support workers, including introductory  training courses and continuing professional development through workshops, presentations and debriefing sessions, to ensure staff have appropriate knowledge and skills to provide perinatal mental health and bereavement support to parents;

*         online resources and information on perinatal mental health; and

*         promotion of services and awareness campaigns online and through social media to support uptake of services.

 

The continuing support grant opportunity is expected to open in mid-2020, thereby ensuring service continuity into the 2020-21 financial year.

Emerging Priorities

 

The emerging priorities grant opportunity will be an open competitive funding round which will expand the scope of services currently available by providing new initiatives to complement and enhance existing perinatal mental health services.

 

The emerging priorities are designed to stimulate innovation in the provision of perinatal mental health services, while also addressing gaps in current service delivery such as improving access to underserviced groups including fathers, parents from culturally diverse backgrounds, Aboriginal and Torres Strait Islander parents, LGBTIQ+ parents and parents in rural and remote areas.

 

Activities could include:

*         provision of information and resources for underserviced groups and for specific stages of pregnancy/child development in the perinatal period (particularly antenatal);

*         improving awareness of perinatal mental health risks and capacity of health professionals in identifying those at greater risk;

*         resources and support for people with pre-existing mental health illness and complex conditions during the perinatal period;

*         support and treatment programs for fathers experiencing perinatal mental health illness;

*         peer support services dedicated to underserviced groups; and

*         resources and information for people caring for those with perinatal mental health illnesses.

 

Providers must demonstrate their ability to deliver the services nationally (have reach across Australia). Pilot programs conducted at a regional level, with potential for expansion nationally, will also be considered. For example, face-to-face prevention and treatment programs, including peer support activities, could initially be introduced on a smaller scale to demonstrate effectiveness and efficiency for expansion to national delivery.

 

Organisations or individuals who meet the eligibility criteria for the grant round, and can provide the services, will be able to apply. The emerging priorities grant opportunity is expected to open for applications mid-2020, with services commencing in late 2020.

 

The two grant streams process will be undertaken in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

 

Applications for funding under each grant round will be assessed against the eligibility and assessment criteria in the Grant Opportunity Guidelines, which will outline the objectives and outcomes of the government funding and the deliverables. The Grant Opportunity Guidelines will be developed by the department. Administration and payments for the grants will be managed by the Community Grants Hub at the Department of Social Services.

 

Following assessment of the proposals on their merit, the delegate of the Minister for Health (the Minister) will make the final decision to approve funding. The Minister's delegate will consider whether each proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

 

The decision of the Minister's delegate is final in all matters, including the:

*         approval of the grant;

*         grant funding amount to be awarded; and

*         terms and conditions of the grant.

 

The Grant Opportunity Guidelines, assessment criteria and information about grant decisions will be available on GrantConnect at www.grants.gov.au.

 

Decisions regarding the provision of funds through the program are not considered suitable for independent review as the available resources are finite, and all potential claims for a share of these resources cannot be met. Overturning a decision made in relation to a single grant will affect decisions in relation to all others. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.16 of the document What decisions should be subject to merit review?).

 

A roundtable on perinatal mental health and wellbeing was held with key stakeholders on 21 November 2019 and an independent environmental scan of perinatal mental health and wellbeing services was undertaken to inform the design, development and delivery of the grants program.

 

Funding of $43.9 million over seven years from 2018-19, and $8.8 million per year ongoing, was included in the 2019-20 Budget under the measure 'Prioritising Mental Health - caring for our community'. Details are set out in Budget 2019-20, Budget Measures, Budget Paper No. 2 2019-20 at page 104.

 

Funding will come from Program 2.1: Mental Health, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2019-20, Budget Related Paper No. 1.9, Health Portfolio at page 63.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the communications power (section 51(v));

*         the social welfare power (section 51(xxiiiA)); and

*         the external affairs power (section 51(xxix)).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

Under the program, grants will be provided to fund organisations to deliver perinatal mental health support, perinatal loss and bereavement peer support, promotion and training activities via telephone or online.

 

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including 'medical and dental services (but not so as to authorise any form of civil conscription)'.

 

Under this program, grants will be provided for services to parents affected by or at risk of perinatal mental illness, or experiencing grief after the death of a child.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's obligations under treaties to which it is a party.

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). Article 12(1) of the ICESCR recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Pursuant to Article 2(1), each State Party to the ICESCR is required to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization' of this right by all appropriate means. Article 12(2) further provides a non-exhaustive list of 'steps' to be taken by the States Parties to achieve the full realisation of the right to health, including:

• steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c)); and
• steps necessary for 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Article 12(2)(d)).

 

Under this program, grants will be provided for services to parents affected by or at risk of perinatal mental illness, or experiencing grief after the death of a child.

 

New table item 411 establishes legislative authority for government spending on the Perinatal Mental Health Check initiative (the initiative).

 

The initiative aims to deliver digital perinatal screening infrastructure, training and support for perinatal mental health screening in public hospitals. This will improve access to perinatal mental health support and treatment for expectant and new parents.

 

In Australia, public hospitals currently handle the vast majority of births. They are also required to handle complex births and to deal with a range of culturally and linguistically diverse communities. Perinatal mental health screening is currently conducted using pen and paper in most settings, and sometimes requires a translator.

 

Government funding will be provided to the Centre for Perinatal Excellence (COPE) to support the delivery of this initiative in collaboration with state and territory governments. COPE, which was established in 2013, is a not-for-profit organisation devoted to reducing the impacts of emotional and mental health problems in the pre and postnatal periods.

 

COPE has an existing perinatal mental health screening tool - iCOPE, which can be delivered using a digital tablet in 10 languages. Using this existing platform, COPE will conduct the following activities:

*         provide digital infrastructure, training and support for the delivery of routine perinatal screening of expectant and new parents in participating public maternity hospitals in Australia; and

*         disseminate information and support resources in relation to perinatal mental health.

 

Expectant parents will be offered perinatal mental health screening at antenatal appointments in public hospitals. It is expected that a digital tool will improve early detection of perinatal mental illness amongst expectant parents. The initiative is expected to commence in late 2020.

 

COPE will provide training and education to staff in participating maternity hospitals offering screening to clients at antenatal appointments as well as staff involved in providing advice and referral following screening. Training and education on the delivery and use of the iCOPE digital tool will be provided via onsite visits and training videos. A technical helpline will also be established to support hospitals using the iCOPE tool.

 

The iCOPE tool provides an automated report for the client and health professionals at the time of screening. Clinical reports for health professionals contain score data on the screening instrument questionnaires and recommendations which can be used for referrals, if required. These can be accessed by hospital maternity health care providers or primary care services.

 

Individualised client reports can be generated providing further information directly to the client regarding access to resources, referral services/directories or online treatment tools. It is expected that this will improve uptake of perinatal mental health services and online treatment tools to reduce morbidity and mortality associated with perinatal mental illness.

 

COPE will also manage the development of information and resources promoting and proactively addressing perinatal mental health and raising awareness of the importance of screening. Post-screening support resources will include translations of the Ready to Cope
e-newsletter, which provides expectant and new parents with insights, comfort and strategies for coping during the perinatal period as well as information on when and how to get help if needed.

 

To encourage uptake and delivery of digital screening in public hospitals and expand services for perinatal support in the community sector, the Government will also be providing funding to state and territory governments through Project Agreements under the Federal Financial Relations Act 2009 and the COAG Reform Fund Act 2008, to encourage integration with current jurisdictional maternity and mental health services and improve national reporting on perinatal mental health screening.

 

Expectant parents whose screening results indicate they may be at risk of perinatal mental illness will be provided information on referral services within their local region for appropriate follow-up and diagnosis. Expansion of local mental health services supporting perinatal mental health will improve diagnosis and treatment where required, especially towards early detection and follow-up of at risk clients.

 

The department will conduct a closed, non-competitive grant process to award a grant to COPE in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

 

The application from COPE will be assessed against the eligibility and assessment criteria in the Grant Opportunity Guidelines, which will outline the objectives and outcomes of the government funding and the deliverables. The Grant Opportunity Guidelines will be developed by the department. Administration and payments for the grant will be managed by the Community Grants Hub at the Department of Social Services.

 

Following assessment of the proposal on its merit, the delegate of the Minister for Health
(the Minister) will make the final decision to approve funding. The Minister's delegate will consider whether the proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

 

The decision of the Minister's delegate is final in all matters, including the:

*         approval of the grant;

*         grant funding amount to be awarded; and

*         terms and conditions of the grant.

 

The Grant Opportunity Guidelines, assessment criteria and information about the grant decision will be available on GrantConnect at www.grants.gov.au.

 

The provision of funds to COPE to deliver digital infrastructure, training and support for perinatal mental health screening in public hospitals is not considered suitable for independent merits review because the expenditure is one-off, time-limited and non-competitive.

 

The direct source arrangement is considered appropriate because COPE has the appropriate capability, specific expertise and established infrastructure to deliver a digital perinatal mental health screening solution at an appropriate scale within the required timeframe. To reconsider this decision under merits review would substantially delay implementation of the initiative in a market environment where there are no alternative providers with similar capacity to deliver required services.

 

The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.16 to 4.17 of the document What decisions should be subject to merit review?).

 

A roundtable on perinatal mental health and wellbeing was held with key stakeholders on 21 November 2019 to inform the design and implementation of the perinatal mental health check. An inter-jurisdictional Senior Officials Mental Health Implementation Steering Group was established to provide advice on the design and implementation of three national mental health initiatives including the National Perinatal Mental Health Check. The Group has been meeting monthly since February 2020.

Funding of up to $16 million over three years from 2020-21 was included in the 2019-20 Mid-Year Economic and Fiscal Outlook under the measure 'Election Commitment - National Perinatal Mental Health Check'. Details are set out in the Mid-Year Economic and Fiscal Outlook 2019-20, Appendix A: Policy decisions taken since the 2019 PEFO at page 234.

 

Funding will come from Program 2.1: Mental Health, which is part of Outcome 2. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Health Portfolio at page 18.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the communications power (section 51(v)); and

*         the external affairs power (section 51(xxix)).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

Under this initiative, funding will be provided for the establishment of a national perinatal mental health screening program and 'Ready to Cope' guide, which will be delivered solely online.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's obligations under treaties to which it is a party.

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). Article 12(1) of the ICESCR recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Pursuant to Article 2(1), each State Party to the ICESCR is required to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realization' of this right by all appropriate means. Article 12(2) further provides a non-exhaustive list of 'steps' to be taken by the States Parties to achieve the full realisation of the right to health, including:

• steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c)); and
• steps necessary for 'the creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Article 12(2)(d)).

 

Under this initiative, funding will be provided for the establishment of a national perinatal mental health screening program and 'Ready to Cope' guide, which will support expectant and new parents through the perinatal period and specifically with respect to the mental health challenges associated with that period, thereby raising awareness of and supporting preventative measures in respect of mental health.

New table item 412 establishes legislative authority for government spending on the Donor Human Milk Bank Service (milk bank service).

 

The milk bank service aims to improve the speed and capacity for donor human milk processing and will expand the distribution of human milk to ensure all premature babies in neonatal intensive care in Australia have access to donor human milk if required.

 

Current access to donor human milk in Australia is through three hospital-based milk banks, the Australian Red Cross Lifeblood (Lifeblood) milk bank in New South Wales, and one community-based service. Not all hospitals with neonatal intensive care units (NICUs) have access to donated human milk supply.

 

Government funding will be provided to Lifeblood to upgrade and expand its infrastructure to support donor human milk banking. Lifeblood has an existing Sydney Processing Facility that operates its processes in accordance with the NSW Clinical Guidelines for the Use of Donor Human Milk. Nationally, Lifeblood will prepare protocols based on these and the UK National Institute for Health and Care Excellence Clinical Guidelines. The collection and distribution processes adhere to these guidelines. The processes extend from the moment donor human milk is obtained from the mother to distribution of the pasteurised donor human milk to NICUs.

 

Lifeblood staff with the relevant credentialing conduct a screening interview with potential donors in order to determine their eligibility to be a donor. The screening is to assess if the donor has a medical history of certain diseases or engages in any lifestyle risks such as smoking or excessive alcohol consumption that precludes them from being a donor. Potential donors are also required to undergo a blood test as a mandatory measure to reduce the risk of passing on infections.

 

The provision of donor human milk is for premature babies in NICUs only. Eligible infants, referred to as 'vulnerable infants', include infants at an increased risk of necrotising enterocolitis, very preterm infants, very low birth weight infants and other infants assessed as clinically high risk. Hospitals are responsible for providing appropriately trained and credentialed staff to ensure that ongoing lactation support is offered, and that NICU breastfeeding rates on discharge are optimal. It is up to the clinical discretion of the attending medical practitioner to determine the suitability and the length of time an infant can receive donor human milk.

 

The funding will assist Lifeblood in establishing consistent production management, product tracing and labelling processes to ensure donor human milk is safe and uncontaminated. The investment in infrastructure will support the establishment and expansion of processing, collection and distribution hubs to ensure that demand for donor human milk for premature babies in Australia is met, with 100 per cent of all eligible premature babies in NICUs having access to donor human milk if required.

 

Production management, product tracing and labelling processes are requirements to ensure that should a batch recall be required (due to contamination or other reasons) there are sufficient means to track the product and absolve/mitigate the risk of any future contamination.

 

Lifeblood will purchase equipment for processing facilities and distribution hubs, such as freezers, thaw fridges, pasteurisation equipment, specialist batch equipment, dispensing pumps, capping devices, laminar flow cabinets and software and systems management equipment to manage product tracing from collection to hospitals.

 

To support the national expansion, Lifeblood will establish one new human donor milk processing, collection and distribution hub in Brisbane and renovate existing facilities to expand supply of donor human milk in Canberra, Melbourne, Darwin, Hobart and Perth where a supply pathway has not been established.

 

Government funding will also be used to facilitate national collaboration and data sharing across neonatal units to inform both clinical practice and the Commonwealth of the clinical outcomes of using donated human milk.

 

Lifeblood will engage a research fellow to analyse the benefits of donated human milk. This, along with the provision of advice on needs, barriers, requirements and funding mechanisms, will inform Commonwealth policy development and decision making.

 

Lifeblood in collaboration with the Australia New Zealand Neonatal Network will undertake research to assess the impact of donor human milk provision to Australian NICUs on necrotising enterocolitis and other morbidities and on rates of maternal breast milk feeding at discharge.

 

The department will use a closed, non-competitive process to award the grant in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 and the Commonwealth Grants Rules and Guidelines 2017.

 

The department has developed the Grant Opportunity Guidelines and will be responsible for the administration of this grant with ongoing management and support provided by the Community Grants Hub at the Department of Social Services.

 

Lifeblood's proposal will be assessed against the eligibility and assessment criteria in the Grant Opportunity Guidelines, which will outline the objectives and outcomes of the government funding.

 

Following assessment of the proposal on its merit, the delegate of the Secretary of the department will make the final decision to approve the funding. The Secretary's delegate will consider whether the proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

 

The decision of the Secretary's delegate is final in all matters, including the:

*         approval of the grant;

*         grant funding amount to be awarded; and

*         terms and conditions of the grant.

 

The Grant Opportunity Guidelines, assessment criteria and information about the grant decision will be made available at www.grants.gov.au. 

 

The provision of funds to Lifeblood to administer the establishment of the milk bank service is not considered suitable for independent merits review because the expenditure is one-off, time-limited and non-competitive. The direct source arrangement is considered appropriate because Lifeblood is uniquely placed to deliver this network, drawing on infrastructure and expertise developed through its 90-year history of collecting, testing, processing and distributing biological products. Lifeblood has established a human milk bank facility in Sydney in collaboration with the New South Wales government, and is also collecting and supplying human donor milk to hospitals in South Australia in collaboration with the South Australian government.

 

To reconsider this decision under merits review would substantially delay implementation of the program in a market environment where there are no alternative providers with similar capacity to establish supply of donor human milk to NICUs across Australia within the required timeframes. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.16 to 4.17 of the document What decisions should be subject to merit review?).

 

The department has undertaken regular consultations with Lifeblood in the development of the Grant Opportunities Guidelines. The consultations were also to ascertain the feasibility of what the department is requesting, against operational requirements in existing human milk bank facilities.

 

Funding of $2.0 million in 2019-20 was included in the 2019-20 Budget under the measure 'Establishment of a Centralised Donor Milk Bank Service'. Details are set out in Budget 2019-20, Budget Measures, Budget Paper No. 2 2019-20 at page 84.

 

Funding will come from Program 2.4:  Preventive Health and Chronic Disease, which is part of Outcome 2. Details are set out in the Portfolio Budget Statements 2019-20, Budget Related Paper No. 1.9, Health Portfolio at page 32.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the census and statistics power (section 51(xi));

*         the medical services aspect of the social welfare power (section 51(xxiiiA));

*         the external affairs power (section 51(xxix)); and

*         the territories power (section 122).

 

Census and statistics power

 

Section 51(xi) of the Constitution empowers the Parliament to make laws with respect to 'census and statistics'.

 

Funding will be provided for the establishment of a collaborative research program to collect information for statistical purposes. The statistics will contribute evidence to a cost-benefit analysis of donor milk in Australia.

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare benefits including 'medical and dental services (but not as to authorise any form of civil conscription)'.

 

Funding will be provided to Lifeblood for infrastructure to ensure human milk is available to premature babies with medical conditions associated with premature birth. The funding will be used to establish and expand the processing, collection and distribution of donor human milk for this purpose. The provision of donor human milk improves medical treatment of premature babies who cannot access their mother's own milk, with breastmilk helping to reduce the period in hospital, reduce the risk of infection and sepsis, and reduce the risk of necrotising enterocolitis, a gut disease which has a high mortality rate.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to 'external affairs'. The external affairs power supports legislation implementing Australia's obligations under treaties to which it is a party.

Convention on the Rights of the Child

 

Australia is a party to the Convention on the Rights of the Child [1991] ATS 4 ('the CRC'). Article 4 of the CRC imposes a general obligation on States Parties to implement rights set out in the CRC:

 

States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co−operation.

 

Article 24(1) of the CRC provides:

 

1.   States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

 

The measures taken by the States Parties to pursue full implementation of the right contained in Article 24(1) are specified in Article 24(2) and include:

 

(a) To diminish infant and child mortality;

(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;

(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking−water, taking into consideration the dangers and risks of environmental pollution;

(d) To ensure appropriate pre-natal and post-natal health care for mothers;

(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f) To develop preventive health care, guidance for parents and family planning education and services.

 

Under the Donor Human Milk Bank Service, funding will be provided for a centralised network of donor milk banks and a collaborative research program. This funding is directed at improving the long-term health outcomes for premature babies including by diminishing infant mortality, by ensuring babies in Australia have access to donor human milk (by providing necessary medical assistance and health care as well as providing adequate nutrition).

 

International Covenant on Economic, Social and Cultural Rights

 

Australia is a party to the International Covenant on Economic, Social and Cultural Rights [1976] ATS 5 (ICESCR). States Parties to the ICESCR are required to take steps with a view to achieving progressively the full realisation of the rights recognised in the Convention by all appropriate means (Article 2(1)).

 

The steps taken by States Parties to achieve the full realisation of the right to enjoyment of the highest attainable standard of physical and mental health (as required by Article 12(1)) are specified in Article 12(2) and include:

*         steps necessary for 'the reduction of the stillbirth-rate and of infant mortality and for healthy development of the child' (Article 12(2)(a)).

 

Under the Donor Human Milk Bank Service, funding will be provided for a centralised network of donor milk banks and a collaborative research program. This funding is directed at improving long-term health outcomes for premature babies, including the reduction of infant mortality and for the healthy development of premature babies, by ensuring babies in Australia have access to donor human milk.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to 'make laws for the government of any territory'.

 

Funding will be provided to expand the existing network of human milk banks, including to territories, to ensure that all premature babies born in Australia have access to human milk.

 

New table item 413 establishes legislative authority for government spending on the Adult Mental Health Centres (the centres).

 

The centres aim to assist adults seeking help in times of crisis, or as needs emerge, to have access to on-the-spot treatment, advice and support provided by a variety of health professionals without needing a prior appointment.

Government funding will be provided to the Primary Health Networks (PHNs) to establish a trial of seven adult mental health centres in each state (except for South Australia) and territory. An eighth centre will be established by the South Australian government through a separate project agreement with the Commonwealth.

 

The centres will provide a highly visible and easily accessible entry point for adults into the mental health system. The centres will offer:

*         assessment and triage to match people to the services they need, offering a central point to connect people to other services and service navigation and referrals.  This includes integrating and connecting them with local community services including general practitioners and local PHN commissioned services; jurisdictional services and other private mental health services, as appropriate;

*         initial information provision, comfort and containment of mental ill health symptoms;

*         immediate support to de-escalate distress for people experiencing crisis or at risk of suicide and help to stabilise symptoms before management commences in the centre or a transfer is arranged to other services;

*         short to medium term treatment while a person is waiting to be connected to longer term or more appropriate services and support;

*         information for individuals, families, friends and carers to assist them in their role and acknowledging their support needs; and

*         digital mental health services and information, including online therapies offered through Head to Health where appropriate.

 

The centres will operate over extended hours, seven days a week, according to demand. They will provide a highly visible entry point into the mental health system, offering immediate mental health treatment options for people with distressing mental health symptoms in a low stigma setting. If required, outreach services may be provided to improve accessibility to services for adults within each centre's catchment area.

 

Generally, it is expected services will be provided to adults who reside in the local catchment areas for the centres. However, centres will operate under a "no wrong door" approach, meaning any person can enter a centre and receive appropriate support and advice.

 

The trial for the seven centres will initially be located in:

·         Canberra, Australian Capital Territory;

*         Darwin, Northern Territory;

*         North Perth, Western Australia;

*         Corio, Victoria;

*         Launceston, Tasmania;

*         Penrith, New South Wales; and

*         Townsville, Queensland.

 

These centres will be established in 2020-21 and commence delivering services in 2021-22. The trial will continue until 2023-24, during which an evaluation will be undertaken to determine their effectiveness in supporting adults who may be affected by mental ill health. The outcomes of the evaluation will inform future policy development for consideration by the Government.

 

The department will use a closed, non-competitive process to award the grant in accordance with applicable legislative requirements under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) and the Commonwealth Grants Rules and Guidelines 2017 (CGRGs).

 

Proposals from relevant PHNs will be assessed against the eligibility and assessment criteria in the Grant Opportunity Guidelines, which will outline the objectives and outcomes of the government funding. The seven PHNs will be required to demonstrate commissioning plans, including how they will consult with Local Hospital Networks on how the centres will integrate with state and territory mental health services. This will leverage the joint planning the PHNs are undertaking with the Local Hospital Networks to provide integrated mental health services under the Fifth National Mental Health and Suicide Prevention Plan.

 

Following an assessment of PHNs' commissioning plans, and in accordance with the PGPA Act and CGRGs, the delegate of the Minister for Health (the Minister) will make the final decision on the trial sites and approve funding.

 

The Minister's delegate will consider whether the proposal represents an efficient, effective, ethical and economical use of Commonwealth resources, and whether any specific requirements need to be imposed as a condition of funding.

 

The decision of the Minister's delegate is final in all matters, including the:

*         approval of the grant;

*         grant funding amount to be awarded; and

*         terms and conditions of the grant.

 

The Grant Opportunity Guidelines, assessment criteria and information about the grant decisions will be available at Grants Connect at www.grants.gov.au.

 

The decision to provide funds to the seven PHNs to implement the centres which are part of the Adult Mental Health Centres trial is not considered suitable for independent merits review because the available resources are finite and all potential claims for a share of these resources cannot be met. Overturning a decision made in relation to a single grant will affect decisions in relation to all others. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see items 4.11 to 4.17 of the document What decisions should be subject to merit review?).

 

The department has undertaken consultation with: the Adult Mental Health Centres Technical Advisory Group (a group of independent experts established to provide advice to the Minister regarding the service model for the trial); a PHN Steering Group comprising representatives of the eight PHNs which will have centres located in their regions; and a Senior Officials Group comprising state and territory representatives and a representative of the National Mental Health Commission. A public consultation process will also be undertaken from mid-2020 through the department's consultation hub.

 

Funding of $114.5 million over five years from 2020-21 was included in the 2019-20 Budget under the measure 'Prioritisation Mental Health - Adult Mental Health Centres'. In the 2019-20 Mid-Year Economic and Fiscal Outlook, funding was brought forward to 2019-20 to enable the establishment of the centres and implementation of the trial. Of the $114.5 million, $93.5 million over four years from 2020-21 was included for the establishment and operation of seven centres. Details are set out under the measure 'Adult Mental Health Centres - Trial' in the Mid-Year Economic and Fiscal Outlook 2019-20, Appendix A: Policy decisions taken since the 2019 PEFO at page 227.

 

Funding will come from Program 2.1: Mental Health, which is part of Outcome 2. Details are set out in the Portfolio Additional Estimates Statements 2019-20, Health Portfolio at page 16.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

*         the communications power (section 51(v));

*         the social welfare power (section 51(xxiiiA));

*         the external affairs power (section 51(xxix)); and

*         the territories power (section 122).

 

Communications power

 

Section 51(v) of the Constitution empowers the Parliament to make laws with respect to 'postal, telegraphic, telephonic and other like services'.

 

The digital mental health services will provide wholly online health services to people suffering from long-term mental impairments.

 

Social welfare power

 

The social welfare power in section 51(xxiiiA) of the Constitution empowers the Parliament to make laws with respect to the provision of certain social welfare services including 'medical and dental services (but not so as to authorise any form of civil conscription').

 

The Adult Mental Health Centres will provide services to persons who suffer from a medical mental health condition.

 

External affairs power

 

Section 51(xxix) of the Constitution empowers the Parliament to make laws with respect to ‘external affairs'. The external affairs power supports legislation implementing Australia's obligations under international treaties to which it is party.

 

Australia is a party to the Convention on the Rights of Persons with Disabilities (CRPD). Article 4(1) of the CRPD provides that States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To that end, States Parties are to undertake to adopt 'all appropriate legislative, administrative and other measures' for the implementation of those rights (Article 4(1)(a)). 

 

For the purposes of the CRPD, 'persons with disabilities' relevantly includes those with 'long-term mental ... impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others (Article 1). Article 25 of the CRPD recognises the right of persons with disabilities to the enjoyment of the highest attainable standard of health. 

 

Australia is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 12(1) of the ICESCR recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'. Article 2 requires each State Party to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realisation of this right 'by all appropriate means, including particularly the adoption of legislative measures'.

 

The steps to be taken by States Parties to achieve full realisation of the right to health are specified in Article 12(2) and include:

*         steps necessary for 'the prevention, treatment and control of epidemic, endemic, occupational and other diseases' (Article 12(2)(c)); and

*         the 'creation of conditions which would assure to all medical service and medical attention in the event of sickness' (Article 12(2)(d)).

 

The Adult Mental Health Centres are aimed at preventing persons from developing severe mental illness, by ensuring that medical service and attention is available to all persons suffering from long-term mental impairments. The digital mental health services will also provide health services to people suffering from long-term mental impairments.

 

Territories power

 

Section 122 of the Constitution empowers the Parliament to make laws 'for the government of any territory'.

 

Funding will be provided for two of the Adult Mental Health Centres to be established in the territories.

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Health Measures No. 3) Regulations 2020

 

This disallowable legislative instrument 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 legislative instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the FF(SP) Regulations. Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs. The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013.  

 

The Financial Framework (Supplementary Powers) Amendment (Health Measures No. 3) Regulations 2020 amend Schedule 1AB to the FF(SP) Regulations to add four new table
items to establish legislative authority for government spending on certain activities that will be administered by the Department of Health.

 

This instrument adds the following table items to Part 4 of Schedule 1AB:

*         table item 410 for the Perinatal Mental Health and Wellbeing Program;

*         table item 411 for the Perinatal Mental Health Check;

*         table item 412 for the Donor Human Milk Bank Service; and

*         table item 413 for the Adult Mental Health Centres.

 

Table item 410 - Perinatal Mental Health and Wellbeing Program

 

Table item 410 establishes legislative authority for government spending on the Perinatal Mental Health and Wellbeing Program (the program) to provide perinatal mental health support, perinatal loss and bereavement peer support, promotion and training activities. The program will also improve the range of services available at a national level to support the mental health and wellbeing of new parents affected by or at risk of perinatal mental illness, or experiencing grief after the death of a child to prevent the development of mental illness.

 

Government funding will be delivered as a new grants program through two streams: a 'continuing support' grant opportunity to maintain existing funding for services already being delivered; and an 'emerging priorities' grant opportunity targeting new services that address gaps in current service provision.

 

Activities under the program will focus on formal, specialised services that are directed in a specific manner to preventing, treating or controlling perinatal mental illness, and are delivered at a national level. Services may include counselling, peer support, treatment programs, resources and information, referral services/directories, health promotion/awareness and training and education for providers.

 

These services may be delivered through a range of methods, including telephone, online, smartphone apps and face-to-face. The aim of the services will be to provide support to expectant and new parents experiencing or at risk of perinatal mental illness and parents and families experiencing distress after birth trauma, miscarriage, stillbirth or infant death to prevent the development of mental illness.

 

Human rights implications

 

Table item 410 engages the following right:

*         Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights, specifically the right to the highest attainable standard of physical and mental health.

 

Grants delivered through the program will focus on formal, specialised services that are directed in a specific manner to preventing, treating or controlling perinatal mental illness. Access to improved services as a result of funded activities will positively impact the human right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable standard of mental health.

 

Conclusion

 

Table item 410 is compatible with human rights because it improves perinatal mental health service availability and promotes the protection of human rights.

 

Table item 411 - Perinatal Mental Health Check

 

Table item 411 establishes legislative authority for government spending on the Perinatal Mental Health Check initiative (the initiative), which aims to deliver digital perinatal screening infrastructure, training and support for perinatal mental health screening in public hospitals. This will improve access to perinatal mental health support and treatment for expectant and new parents in Australia.

 

Government funding will be provided to the Centre for Perinatal Excellence (COPE) to support the delivery of this initiative in collaboration with state and territories. COPE, which was established in 2013, is a not-for-profit organisation devoted to reducing the impacts of emotional and mental health problems in the pre and postnatal periods.

 

COPE has an existing perinatal mental health screening tool - iCOPE, which can be delivered using a digital tablet in 10 languages. Using this existing platform, COPE will conduct the following activities:

*         provide digital infrastructure, training and support for the delivery of routine perinatal screening of expectant and new parents in participating public maternity hospitals in Australia; and

*         disseminate information and support resources in relation to perinatal mental health.

 

Human rights implications

 

Table item 411 engages the following right:

• Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights, specifically the right to the highest attainable standard of physical and mental health.

 

By providing accurate and rapid digital perinatal mental health screening within a maternity hospital setting, table item 411 will improve prevention and early intervention for perinatal mental illness for a significant proportion of expectant and new parents accessing public maternity services. This will positively impact the human right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable standard of mental health.

 

Conclusion

 

Table item 411 is compatible with human rights because it improves perinatal mental health screening, support and treatment, and promotes the protection of human rights.

 

Table item 412 - Donor Human Milk Bank Service

 

Table item 412 establishes legislative authority for government spending on a Donor Human Milk Bank Service to improve the speed and capacity for donor human milk processing and expand the distribution of human milk to ensure all premature babies in neonatal intensive care in Australia have access to donor human milk if required.

 

Government funding will be provided to the Australian Red Cross Lifeblood (Lifeblood) to upgrade and expand its infrastructure to support donor human milk banking.

 

The funding will assist Lifeblood in establishing consistent production management, product tracing and labelling processes to ensure donor human milk is safe and uncontaminated. The investment in infrastructure will support the establishment and expansion of processing, collection and distribution hubs to ensure that demand for donor human milk for premature babies in Australia is met, with 100 per cent of all eligible premature babies in neonatal intensive care units having access to donor human milk if required.

 

Government funding will also be used to facilitate national collaboration and data sharing across neonatal units to inform both clinical practice and the Commonwealth of the clinical outcomes of using donated human milk.

 

Human rights implications

 

Table item 412 engages the following rights:

*         Article 24 of the Convention on the Rights of the Child (CRC), which specifies States Parties should 'recognise the right of the child to the enjoyment of the highest attainable standard of health ... '. Article 4 imposes a general obligation on States Parties to implement rights set out in the CRC.

*         Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health'.  Article 12(2)(a) requires States Parties to take steps to realise the right to health including those necessary for 'the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child'. Pursuant to Article 2(1), each State Party to the ICESCR is required to 'take steps ... to the maximum of its available resources, with a view to achieving progressively the full realisation’ of this right by all appropriate means.

 

Table item 412 will assist Lifeblood to upgrade and expand its infrastructure to support donor human milk banking. The funding will improve the speed and capacity for donor human milk processing and will expand the distribution of human milk to ensure all premature babies in neonatal intensive care in Australia have access to donor human milk if required.

 

Conclusion

 

Table item 412 is compatible with human rights because it promotes the protection of human rights.

 

Table item 413 - Adult Mental Health Centres

 

Table item 413 establishes legislative authority for government spending on the Adult Mental Health Centres (centres), which aim to assist adults seeking help in times of crisis, or as needs emerge, to have access to on-the-spot treatment, advice and support provided by a variety of health professionals without needing a prior appointment.

 

Government funding will be provided to the Primary Health Networks (PHNs) to establish seven centres in Australian Capital Territory PHN; Northern Territory PHN; North Perth PHN; Western Victoria PHN; Tasmania PHN; Nepean Blue Mountains PHN; and Northern Queensland PHN to support the implementation of the Adult Mental Health Centres trial in their regions.

 

The centres will provide a highly visible and easily accessible entry point for adults into the mental health system. The centres will offer:

*         assessment and triage to match people to the services they need, offering a central point to connect people to other services and service navigation and referrals.  This includes integrating and connecting them with local community services including general practitioners and local PHN commissioned services; jurisdictional services and other private mental health services, as appropriate;

*         initial information provision, comfort and containment of mental ill health symptoms;

*         immediate support to de-escalate distress for people experiencing crisis or at risk of suicide and help to stabilise symptoms before management commences in the centre or a transfer is arranged to other services;

*         short to medium term treatment while a person is waiting to be connected to longer term or more appropriate services and support;

*         information for individuals, families, friends and carers to assist them in their role and acknowledging their support needs; and

*         digital mental health services and information, including online therapies offered through Head to Health where appropriate.

Human rights implications

 

Table item 413 engages the following rights:

*         Article 12(1) and 12(2) of the International Covenant on Economic, Social and Cultural Rights which recognise the right to the enjoyment of the highest attainable standard of physical and mental health for all people and the steps needed to attain this standard; and

• Article 25 of the Convention on the Rights of Persons with Disabilities, which specifies States Parties should provide health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimise and prevent further disabilities. This in turn recognises the right of persons with disabilities to the enjoyment of the highest attainable standard of health. 

 

Table 413 will enable each centre to provide people with access to the most appropriate care and treatment to support their mental health needs. The centres will provide a highly visible and accessible point of entry to services to people who are experiencing mental ill health. They will provide immediate, short term and medium term treatment and care and assist people to access longer term treatment where this is appropriate, helping them to realise their right to attain the highest level of health. 

 

Conclusion

 

Table item 413 is compatible with human rights because it promotes the protection of human rights.

 

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance