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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The Health Insurance (General Medical Services Table) Regulations 2021
implements annual Medicare indexation and recommendations from the MBS Review
Taskforce relating to general surgery and orthopaedic
services (the first
instrument)
The Health Insurance Legislation Amendment (2021 Measures No. 1)
Regulations 2021 amends cardiac services and indexes diagnostic imaging
services
and two items for the management of bulk-billing pathology services (the second
instrument)
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Portfolio
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Health and Aged Care
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the House of Representatives on 3
June 2021 and the Senate 15 June 2021). Notice of motion
to disallow must be
given by 23 August 2021 in the House of Representatives and 24 August 2021 in
the Senate[2]
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Rights
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Health; social security
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1.44 These two legislative instruments make changes to the Medicare Benefits Schedule (MBS), which is the list of health professional services that the Australian Government subsidises. Both apply an indexation rate of 0.9 per cent to relevant listed items. The first instrument makes a total of 752 amendments to the MBS in relation to general surgery and orthopaedic services by adding 202 items, amending 334 items, and deleting 216 items. The second instrument makes several amendments, including consolidating and removing some procedures related to cardiac services on the MBS.
1.45 By providing for a number of surgeries to be available to individuals at a subsidised rate (and applying an indexation of 0.9 per cent to those items), this measure appears to promote the rights to health and social security. The right to health refers to the right to enjoy the highest attainable standard of physical and mental health.[3] In particular, in relation to accessibility, the United Nations Economic, Social and Cultural Rights Committee has noted that 'health facilities, goods and services must be affordable for all...including socially disadvantaged groups'.[4] The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living and the right to health.[5]
1.46 However, as these instruments make a significant number of detailed amendments to the MBS, questions arise as to whether they may have the effect of reducing access to existing subsidised healthcare services and/or reducing the rebate ultimately available to patients receiving relevant treatment. The first instrument makes a total of 752 amendments, including deleting 216 items and amending 334 items. The second instrument introduces new items and removes cardiac surgical procedures that are stated to no longer represent best practice.[6] The statements of compatibility for both instruments are brief and provide no detailed analysis of the effect of the instruments. They state only that the instruments maintain existing arrangements and the protection of human rights by ensuring access to publicly subsidised medical services which are clinically appropriate and reflective of modern clinical practice.[7]
1.47 The explanatory materials state that these amendments have been made in response to the findings of the MBS Review Taskforce relating to restructuring the MBS, incentivising best clinical practice and combining like procedures.[8] However, it is not clear whether this process of consolidation and amendment may have the effect that some procedures are ultimately more expensive for patients (for example, if a surgical procedure would previously have been covered by multiple MBS items, which will now be consolidated and provide the patient with a lower rebate than they currently receive), or if some procedures will no longer be subsidised at all, and no equivalent procedure is now subsidised. As such, it is not clear whether elements of this instrument may constitute a retrogressive measure with respect to the rights to health and social security, and if so, require justification.
1.48 Australia has obligations to progressively realise economic, social and cultural rights using the maximum of resources available,[9] and has a corresponding duty to refrain from taking retrogressive measures, or backwards steps with respect to their realisation.[10] Retrogressive measures, a type of limitation, may be permissible under international human rights law providing that they address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective.
1.49 With respect to a legitimate objective, article 4 of the International Covenant on Economic, Social and Cultural Rights establishes that States Parties may limit economic, social and cultural rights only insofar as this may be compatible with the nature of those rights,[11] and 'solely for the purpose of promoting the general welfare in a democratic society'.[12] This means that the only legitimate objective in the context of the International Covenant on Economic, Social and Cultural Rights is a limitation for the 'promotion of general welfare'. The term 'general welfare' refers primarily to the economic and social well-being of the people and the community as a whole, meaning that a limitation on a right which disproportionality impacts a vulnerable group may not meet the definition of promoting 'general welfare'.[13] The United Nations Committee on Economic, Social and Cultural Rights has indicated that if any deliberately retrogressive measures are taken, the state has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the State's maximum available resources.[14]
1.50 The statements of compatibility provide a brief descriptive outline of the requirements associated with a retrogressive measure, but do not analyse whether and in what manner those requirements are engaged by either instrument, nor an analysis of whether, if any of the measures are retrogressive, they are justified under international human rights law.
1.51 As such, in order to assess the compatibility of this measure with the rights to health and social security further information is required, and in particular:
(a) whether these instruments reduce the quantum of benefits available for any specific MBS items, that could adversely affect the rebate payable to patients;
(b) where these instruments remove MBS items entirely, whether any of those items are not covered by, or replaced with, alternative MBS items;
(c) whether these instruments have the effect of reducing the quantum of benefit for specific medical procedures, including those procedures which are currently covered by multiple MBS items and will now be covered by one item;
(d) what is the objective sought to be achieved by the instruments, and whether this constitutes a legitimate objective (being one which is solely for the purpose of promoting general welfare);
(e) whether and how the measures are rationally connected to (that is, effective to achieve) that objective; and
(f) whether and how the measures constitute a proportionate means by which to achieve the objective (having regard to whether the measures are accompanied by sufficient safeguards; whether any less rights restrictive alternatives could achieve the same objective; and the possibility of oversight and the availability of review).
1.52 The committee notes that these two legislative instruments make a significant number of amendments to the Medicare Benefits Schedule (MBS) in relation to general surgery, orthopaedic services and cardiac services, and apply an indexation of 0.9 per cent to those services.
1.53 The committee considers that by subsidising a range of medical services and applying increased indexation for these services these instruments promote the rights to health and social security. The right to health refers to the highest attainable standard of health, and requires that health facilities, goods and services must be affordable for all. The right to social security recognises the importance of adequate social benefits in reducing the effects of poverty and plays an important role in realising many other economic, social and cultural rights, in particular the right to an adequate standard of living and the right to health.
1.54 However, the committee also notes that having regard to the significant number of detailed changes to the MBS, and the complex nature of the surgeries and services involved, it is not clear whether these instruments may also have the effect of either reducing access to subsidised surgical services, or reducing the rebate provided to patients receiving some services. If this were the case, this may constitute a retrogressive measure, a type of limitation under international human rights law. A retrogressive measure may be permissible where it seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) the objective, and constitutes a proportionate means by which to achieve the objective. The committee notes that the statements of compatibility accompanying both instruments are very brief and provide no detailed analysis of the effects of both instruments.
1.55 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of the instruments, and as such seeks the minister's advice as to the matters set out at paragraph [[15]].15
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Health Insurance (General Medical Services Table) Regulations 2021 [F2021L00678] and Health Insurance Legislation Amendment (2021 Measures No. 1) Regulations 2021 [F2021L00681], Report 8 of 2021; [2021] AUPJCHR 75.
[3] International Covenant on Economic, Social and Cultural Rights, article 12(1).
[4] UN Economic, Social and Cultural Rights Committee, General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000) [12].
[5] International Covenant on Economic, Social and Cultural Rights, article 9. See also, UN Economic, Social and Cultural Rights Committee, General Comment No. 19: The Right to Social Security (2008).
[6] Health Insurance Legislation Amendment (2021 Measures No. 1) Regulations 2021, explanatory statement, p. 32.
[7] Health Insurance (General Medical Services Table) Regulations 2021 [F2021L00678], statement of compatibility, p. 29; and Health Insurance Legislation Amendment (2021 Measures No. 1) Regulations 2021 [F2021L00681], statement of compatibility, p. 33.
[8] See, Health Insurance (General Medical Services Table) Regulations 2021 [F2021L00678], statement of compatibility, p. 28. Information about the review can be found here: https://www.health.gov.au/initiatives-and-programs/mbs-review?utm_source=health.gov. au&utm_medium=callout-auto-custom&utm_campaign=digital_transformation [Accessed
17 June 2021].
[9] UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States parties obligations (Art. 2, par. 1) (1990) [9]. The obligation to progressively realise the rights recognised in the ICESCR imposes an obligation on States to move 'as expeditiously and effectively as possible' towards the goal of fully realising those rights.
[10] International Covenant on Economic, Social and Cultural Rights, article 2.
[11] That is, the measure would not constitute a non-fulfilment of the minimum core obligations associated with economic, social and cultural rights. See, CESCR, General Comment No. 3: the nature of states parties' obligations (14 December 1990) E/1991/23(Supp) [10]. See also Amrei Muller, 'Limitations to and derogations from economic, social and cultural rights', Human Rights Law Review vol. 9, no. 4, 2009, pp. 580–581.
[12] Article 4.
[13] Limburg Principles on the Implementation of the ICESCR, June 1986 [52]. See also, Amrei Muller, 'Limitations to and derogations from economic, social and cultural rights', Human Rights Law Review vol. 9, no. 4, 2009, p. 573; Erica-Irene A Daes, The Individual's Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights, Study of the Special Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/432/Rev.2 (1983), pp. 123–4.
[14] UN Committee on Economic, Social and Cultural Rights, General Comment 13: the Right to education (1999) [45].
[15] The committee's expectations as to the content of statements of compatibility are set out in its Guidance Note 1. See, https://www.aph.gov.au/Parliamentary_Business/Committees/ Joint/Human_Rights/Guidance_Notes_and_Resources.
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