Commonwealth Numbered Regulations - Explanatory Statements

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HUMAN SERVICES (MEDICARE) AMENDMENT (NATIONAL BOWEL CANCER SCREENING REGISTER) REGULATION 2015 (SLI NO 212 OF 2015)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 212, 2015

 

Human Services (Medicare) Act 1973

 

Human Services (Medicare) Regulations 1975

 

Human Services (Medicare) Amendment (National Bowel Cancer Screening Register) Regulation 2015

 

 

Section 44 of the Human Services (Medicare) Act 1973 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Under paragraph 5(1)(e) of the Act, the Chief Executive Medicare's functions include any functions prescribed by regulations. The Chief Executive Medicare is a statutory office to which only an SES officer in the Department of Human Services can be appointed under paragraph 4(2)(b) of the Act.

 

The Regulation amends the Human Services (Medicare) Regulations 1975 (the Principal Regulations) to provide that it is a function of the Chief Executive Medicare to administer the National Bowel Cancer Screening Register (the Register).

 

The National Bowel Cancer Screening Program (the Program) aims to reduce illness and death from bowel cancer by offering Australians aged over the age of 50 a free screening test. The Register is used to invite eligible Australians to participate in the Program and to keep a record of information such as test results in relation to people that are participating in the Program, are invited to participate, or are not invited to participate (because, for example, they have had a recent colonoscopy). The Department of Human Services manages the Register on behalf of the Department of Health. The Department of Health manages the policy in relation to the Program, including determining which Australians are eligible to participate in the Program.

 

The Regulation clarifies that the Chief Executive Medicare is authorised, in performing the Register function, to use information collected for the performance of the Chief Executive Medicare's functions under the Health Insurance Act 1973 and Veterans' Entitlements Act 1986. For example, Medicare claims information will be used to target eligible Australians who have had certain medical procedures, such as a recent colonoscopy, and invite them to opt into the program rather than automatically receive the screening test in the mail.

The Regulation provides express authority for the disclosure of  personal information to a participant's medical practitioner to assist them in advising the person about options for their clinical management; disclosure of personal information to the Australian Institute of Health and Welfare to assist them in assessing the accuracy of screening tests and for monitoring and quality control purposes; the disclosure of personal information to the Department of Health to investigate issues and complaints about the Program; and the disclosure of personal information to State and Territory health departments to assist in arranging the follow-up of participants with positive screening test results. These functions contribute to the effectiveness of the Program and ensure better health outcomes for participants.

In addition, the Regulation enables the Chief Executive Medicare to provide de-identified information to the Department of Health and the Australian Institute of Health and Welfare to assist in monitoring and evaluating the effectiveness of the Program, and to make payments to medical practitioners for the transfer of information about participants to the Register.

 

Details of the Regulation are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).

 

The Department of Human Services undertook consultation with the Department of Health and Department of Veterans Affairs.

 

The Regulation commences on the day after it is registered.

 

 

Statement of Compatibility with Human Rights

 

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

 

Human Services (Medicare) Amendment (National Bowel Cancer Screening Register) Regulation 2015

 

This 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

 

This Legislative Instrument amends the Human Services (Medicare) Regulations 1975. These regulations prescribe various functions of the Chief Executive Medicare, a statutory office holder in the Department of Human Services. This Legislative Instrument ensures that the Chief Executive Medicare is authorised to administer the National Bowel Cancer Screening Register and ensures the Chief Executive Medicare is able to use information collected under the Chief Executive Medicare's Medicare and Department of Veterans' Affairs functions for the purpose of identifying and inviting persons to participate in the National Bowel Cancer Screening Program. This Legislative Instrument also enables personal information and de-identified information to be disclosed to certain entities for specified reasons.

 

Human rights implications

 

This Legislative Instrument engages Article 12 of the International Covenant on Economic, Social and Cultural Rights by promoting the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The National Bowel Cancer Screening Program assists with advancement of these human rights by providing for free bowel cancer screening aimed at reducing illness and death from bowel cancer.  While this Legislative Instrument does not establish the National Bowel Cancer Screening Program, it ensures that functions relating to the program, including targeted invitations to Australians at higher risk of bowel cancer, can be lawfully administered by the Department of Human Services. This will assist to achieve improved health outcomes for Australians.   

 

This Legislative Instrument also engages Article 17 of the International Covenant on Civil and Political Rights by ensuring that no one is subjected to arbitrary or unlawful interference with privacy.

 

The Legislative Instrument ensures that the use and disclosure of personal information for purposes related to administration of the Register do not contravene the Privacy Act 1988, which provides for the protection of personal information. The particular purposes for which personal information can be disclosed are beneficial for the effective administration of the program and the health outcomes of participants.

 

Conclusion

 

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

 

 

ATTACHMENT

Details of the Human Services (Medicare) Amendment (National Bowel Cancer Screening Register) Regulation 2015

 

Section 1         Name

Section 1 provides that the title of this regulation is the Human Services (Medicare) Amendment (National Bowel Cancer Screening Register) Regulation 2015

 

Section 2         Commencement

Section 2 provides that the regulation commences on the day after it is registered.

 

Section 3         Authority

Section 3 provides that the regulation is made under the Human Services (Medicare) Act 1973.

 

Section 4         Schedules

Section 4 provides that each instrument that is specified in a Schedule to the regulation is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to the regulation has effect according to its terms.

 

Schedule 1      Amendments

Item 1 - Regulation 3

This item inserts a definition for 'de-identified'. This has the meaning given by subsection 6(1) of the Privacy Act 1988.

 

Item 2 - After regulation 30

This item inserts new regulation 30A.

Subregulation 30A(1)(a) provides that it is a prescribed function of the Chief Executive Medicare to establish, maintain and administer a register of bowel cancer screening test results; the screening and detection history of people described in subregulation (2), and other relevant information in relation to such people. Screening and detection history includes information about whether the participant previously participated in the program, the results of any current and previous screening results undertaken as part of the Program and the information reported by treating practitioners in relation to treatment such as symptoms. Relevant information includes information from the time that a person is invited to participate in the Program.

 

Subregulation 30A(1) also sets out the following prescribed functions:

 

*         To invite people to undergo bowel cancer screening at appropriate intervals;

*         To supply faecal occult blood test kits to people;

*         To provide personal information about a person's bowel cancer screening and detection history to a medical practitioner to assist the medical practitioner in advising the person about options for the person's clinical management;

*         To provide personal information about a person to the Department administered by the Minister administering the Health Insurance Act 1973 to assist in investigating complaints and other matters raised by, or concerning, the person;

*         To provide personal information about a person to the Australian Institute of Health and Welfare to assist in assessing the accuracy of screening tests; and monitoring, and control of the quality of the performance of, the functions mentioned in subregulation 30A(1);

*         To provide personal information to State and Territory Departments and authorities with responsibility for health matters, to assist in arranging follow-up of people who have had positive screening test results;

*         To provide de-identified information to the Department administered by the Minister administering the Health Insurance Act 1973, and the Australian Institute of Health and Welfare, to assist in monitoring and evaluating the effectiveness of the program constituted by the functions mentioned in subregulation 30A(1); and

*         To make payments on behalf of the Commonwealth to medical practitioners, or other persons authorised by medical practitioners to receive the payments, for the transfer of information.

The above functions also include any functions incidental or conductive to the above functions - see paragraph 5(1)(f) of the Act.

Subregulation 30A(2) provides that, for the purpose of subparagraphs (1)(a)(ii) and (iii), those people are people undergoing bowel cancer screening; people whom the Chief Executive Medicare Invites to undergo bowel cancer screening; and people whom the Chief Executive Medicare decides not to invite to undergo the screening.

Subregulation 30A(3) provides that information acquired by a person in the performance of the person's duties, or in the exercise of the person's functions, under the Health Insurance Act 1973 or Veterans' Entitlements Act 1986, can be used for the purposes of the functions mentioned in subregulation 30A(1). This ensures that the Chief Executive Medicare has express authority to use information collected for Medicare or Veterans purposes for purposes relating to the Register.

Subregulation 30A(4) states that the program constituted by the functions mentioned in subregulation 30A(1) is to be known as the National Bowel Cancer Screening Register. This wording is consistent with the reference to the Register contained in the Human Services (Medicare) (Medicare Programs) Specification 2011 and ensures that the reference in that instrument encompasses all of the functions in subregulation 30A(1).

 

 

 

 

 

 

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