Australia: Health Related Critical Judgments, Legislation, Press Releases and News Items

Health Alert 2010
Last Updated: 27 September 2010
Article by Kerry Hogan-Ross

Health Alert is a summary of the critical judgments, legislation, press releases and news items which have come to our attention each week.

The summaries contain links to more detailed information and many items of special interest will also contain commentary.

Health Alert is a quick and effective means of ensuring that you are aware of significant recent changes.

Judgments

Federal Court

Reece v Webber [2010] FCA 1025

ADMINISTRATIVE LAW—medical practitioner—Professional Services Review Scheme—statutory scheme for examination of conduct to ascertain whether inappropriate practice involved—whether the Director of Professional Services Review ('the Director') erred or exceeded his power by referring for review all services provided by the applicant during the review period—whether the Professional Services Review Committee ('the Committee') erred by investigating all services provided by the applicant during the review period—whether the Committee denied the applicant procedural fairness, contrary to s 106l(1B) of the Health Insurance Act 1973 (Cth), through the inclusion of further reasons in its final report—whether the Committee failed to have regard to the applicant's written submissions on its draft report—whether the Committee's draft and final report gives rise to a reasonable apprehension of bias.

This case concerns an application for a review of a decision by the Professional Services Review Committee ('Committee') that decided that a vocationally registered general practitioner ('Applicant') engaged in inappropriate practice in connection with services he provided as or from his practice locations during a two year review period.

This followed an initial request for review by Medicare to the Director of Professional Services Review ('Director') who subsequently undertook the review and set up and referred the matter to the Committee.

The Applicant sought a review of the decision at the Federal Court concerning the review process, the Committee's failure to take the Applicant's submissions into consideration, and alleged bias which constituted a breach of procedural fairness.

The Court, dismissing the application, held that the Director had authority to refer the matter to the Committee to review any or all services provided by the Applicant under review during the review period pursuant to section 93(1) of the Health Insurance Act 1973 (Cth).

The Court also held that the Committee's authority to investigate services was not limited by the Director's reasons or report at the initial review and that their final report did not introduce new reasons but merely particularised the contents of the draft report.

Furthermore, the Committee did take the Applicant's submissions into account but their failure to adopt the submissions did not give rise to a reasonable apprehension of bias.

Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – affirming decision of delegate of Minister for Heath and Ageing under Therapeutic Goods Act 1989 (Cth) to refuse to register complementary medicine Cholesen – whether Tribunal misconstrued s 25(1)(d) or s 52F of the Therapeutic Goods Act in deciding safety of Cholesen not satisfactorily established – whether there was sufficient evidence before Tribunal to support findings of fact – whether Tribunal's reasons adequate as required by s 43(2B) of the Administrative Appeals Tribunal Act 1977 (Cth)

This case concerns an application to the Federal Court to review a decision by the delegate of the Minister for Health and Ageing to refuse an application to register a complementary medicine, 'Cholesen' ('Product') as a therapeutic good under section 23 of the Therapeutic Goods Act 1989 (Cth). That decision was made on the basis that the Product's safety had not been satisfactorily established. The Applicant sought a review of the decision at the Administrative Appeals Tribunal ('Tribunal'), which affirmed the delegate's decision.

The Tribunal was most concerned about potential safety issues of the Product including potential adverse reactions and the need for clinician supervision, and a lack of studies concerning the Product.

The Applicant appealed to the Federal Court. The Court, dismissing the application, held that the Tribunal did not fall into an error of law in its factual findings nor in the process by which the findings were made. Furthermore, the Tribunal upheld its role to evaluate the material before it for the purpose of forming its view as to whether the Product's safety had been satisfactorily established for the purposes for which it was intended to be used. The Tribunal, in making this assessment, was entitled to and did prefer certain evidence, and provided reasons for its decision.

Legislation

Commonwealth

National Health Act 1953 - Amendment declaration under subsections 85(2) and 85(2AA) - Amendment determination under subsection 85(2A) - drugs and medicinal preparations (No. PB 87 of 2010) - F2010L02529 - Health - This Determination amends the National Health Act 1953 - Declaration under subsections 85(2) and 85(2AA) - Determination under subsection 85(2A) - drugs and medicinal preparations (No. PB 14 of 2010) to declare and determine drugs and medicinal treatments for the Pharmaceutical Benefits Scheme.

National Health Act 1953 - Amendment special arrangements under subsection 100(1) - Chemotherapy Pharmaceuticals Access Program (No. PB 92 of 2010)

- F2010L02530 - Health - These Arrangements amend the National Health Act 1953 - Special Arrangements under subsection 100(1) - Chemotherapy Pharmaceuticals Access Program (No. PB 55 of 2009) to rectify a mis-description to the special patient contribution.

National Health Act 1953 - Amendment determination under section 84AF - responsible persons (No. PB 89 of 2010) - F2010L02528 - Health - This Determination amends the National Health Act 1953 - Determination under section 84AF - responsible persons (No. PB 69 of 2010) to provide for additions and changes to the responsible persons for the brands of pharmaceutical items.

National Health Act 1953 - Amendment determinations under sections 85, 85A and 88 - pharmaceutical benefits (No. PB 88 of 2010) - F2010L02527 - Health - This Determination amends the National Health Act 1953 - Determinations under sections 85, 85A and 88 - Pharmaceutical benefits (No. PB 68 of 2010) to provide for additions and changes to the names, forms and brands of listed drugs on the Pharmaceutical Benefits Scheme and the conditions for prescribing pharmaceutical benefits.

National Health Act 1953 - Determination made pursuant to subsections 99ADB(4) and 99ADB(5) (No. PB 43 of 2010) - F2010L02534 - Health - This Determination sets out the weighted average disclosed price (a new price for a brand of pharmaceutical item based on a calculation using actual sales data) of every brand of every pharmaceutical item that has the same drug and manner of administration as the first items.

National Health Act 1953 - Determination made pursuant to subsections 99ADB(4) and 99ADB(5) (No. PB 85 of 2010) - F2010L02535 - Health - This Determination sets out the weighted average disclosed price (a new price for a brand of pharmaceutical item based on a calculation using actual sales data) of every brand of every pharmaceutical item that has the same drug and manner of administration as the first items.

National Health (Pharmaceutical benefits supplied by private hospitals) Determination 2010 - F2010L02499 - Health - This Determination specifies the amount of the Commonwealth payment for pharmaceutical benefits supplied by an approved hospital authority to a patient receiving treatment at a private hospital for which the authority is approved.

Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service) Amendment Determination 2010 - F2010L02503 - Health - This Determination amends the Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service) Determination 2009 as the funding agreement between the Department of Health and Ageing and Regional Imaging Pty Limited has been varied.

Private Health Insurance (Prostheses) Amendment Rules 2010 (No. 1) - F2010L02500 - Health - These Rules amend the Private Health Insurance (Prostheses) Rules 2010 (No. 2) to correct administrative errors.

Private Health Insurance (Benefit Requirements) Amendment Rules 2010 (No. 6) - F2010L02497 - Health - These Rules amend the Private Health Insurance (Benefit Requirements) Rules 2010 to change the minimum benefits for hospital treatment for patients who are classified as nursing home type patients at public hospitals in certain States/Territories and at private hospitals nationally to reflect the indexation applied to Adult Pension Basic Rate and the maximum daily rate of rental assistance.

Private Health Insurance (Complying Product) Amendment Rules 2010 (No. 4) - F2010L02498 - Health - These Rules amend the Private Health Insurance (Complying Product) Rules 2010 to reflect the changes in the minimum benefits for hospital treatment for patients who are classified as nursing home type patients at public hospitals in certain States/Territories and at private hospitals nationally to reflect the indexation applied to Adult Pension Basic Rate and the maximum daily rate of rental assistance.

REPORTS

Australia. Department of Health & Ageing

National standards for mental health services 2010 - A set of mental health service standards which can be applied to all mental health services, including government, non-government and private sectors across Australia.

Private Health Insurance Circulars

PHI benefits and overseas treatment

PHI 59/10 - Hospital Information - The private hospital Oromax Day Surgery Pty Ltd has been declared for private health insurance purposes effective 20 September 2010.

Australia. National Health & Medical Research Council

NHMRC Tracker 17 September 2010

Australian Institute of Health & Welfare

A profile of social housing in Australia - A profile of social housing in Australia provides an overview of the different social housing programs that have been provided under the 2003 Community Social Housing Agreement, including public rental ... Published 23 September 2010.

When musculoskeletal conditions and mental disorders occur together - The disability and chronic pain due to many musculoskeletal conditions may underlie the development or exacerbation of a variety of mental disorders. The report maps the extent of their relationship ... Published 20 September 2010.

Australian Capital Territory. Department of Health

Media releases

Temporary road closure to allow continued progress on new hospital car park Katy Gallagher, MLA September 23 2010

ACT Government remains committed to organ and tissue donation Katy Gallagher, MLA September 21 2010

Report on the health of ACT population shows Canberra has a wealth of health Katy Gallagher, MLA September 21 2010

ACT joins world leaders in healthcare with opening of new $10.5m neurosurgery suite Katy Gallagher, MLA September 17 2010

Chief Health Officer's Report 2010 (21 September 2010) - Increases in life expectancy and changes to lifestyle, will result in an increase in age-related chronic health conditions.

New South Wales. Department of Health

Media releases

IPART Costs and Outcomes Study Released [23 September 2010]

Launch of the NSW Dementia Services Framework [22 September 2010]

NSW Dementia Services Framework 2010-2015 22/09/2010

Policy directive

Kidney Transplantation - Participation in the Australian Paired Kidney Exchange Program PD2010_060 22/09/2010

Northern Territory. Department of Health & Families

Media releases

Kon Vatskalis - $26 MILLION SHORT TERM PATIENT ACCOMMODATION FOR ROYAL DARWIN HOSPITAL - The Federal Minister for Indigenous Health, Warren Snowdon and NT Minister for Health, Kon Vatskalis, today officially announced two new short-term patient accommodation facilities at the campus of the Royal Darwin Hospital (RDH).

Queensland. Department of Health

Media releases

AUSTRALIA'S FIRST HELICAL TOMOTHERAPY CANCER TREATMENT COMES TO RBWH

18/09/2010 Queensland Children's Hospital surges forward

New Safe Infant Online Program

Queensland Health Healthcare Improvement Awards - 2010 Winners

Tasmania. Department of Health & Human Services

Media releases

Your Health and Human Services Progress Chart Minister for Health 21 September 2010

Latest progress chart released- 21 Sep 2010

Victoria. Department of Health

Media releases

NEW BREAST CANCER SCREENING EQUIPMENT TO HELP SAVE LIVES - Thursday, 23 September 2010 - Women in Melbourne's west will have even better access to lifesaving breast cancer screening with the Brumby Labor Government today launching new state-of-the-art technology at the re-opening of BreastScreen clinics at Sunshine Hospital and Footscray.

style='mso-bookmark:_Toc214427318'>$45 MILLION KINGSTON CENTRE REDEVELOPMENT TAKES SHAPE - Wednesday, 22 September 2010 - Building works on the Brumby Labor Government's Stage 2 redevelopment of the Kingston Centre are on track for completion next year.

$500,000 FUNDING BOOST FOR VERY SPECIAL KIDS - Wednesday, 22 September 2010 - Victoria's most critically unwell children and their families will have better access to the highest quality respite care thanks to a $500,000 Brumby Labor Government boost for Very Special Kids.

Hospital Circulars

Publication Number 19 / 2010 - 20 September 2010 - Date Issued: 20 September 2010 - Subject: Public Hospital Charges - Changes

Victoria. Health Services Commissioner

Health Services Commissioner Annual Report 2010

Western Australia. Department of Health

Media releases

22 September 2010Western Australia leading the way in combating smoking

23 September 2010 WA Health sets new surgery records in August

22 September 2010 Twenty WA student nurses to work in Tanzania

Australian Medical Association

Teenage rapid repeat pregnancy can be reduced with long-acting contraceptives 19 September 2010 - 12:00pm - MJA media release - Long-acting contraceptives are needed to reduce the incidence of pregnancy within 2 years of a teenager giving birth for the first time (ie, rapid repeat pregnancy [RRP]), according to a study published in the Medical Journal of Australia. Mrs Lucy Lewis, research midwife for the School of Women's and Infants' Health, and School of Paediatrics and Child Health, at the University of Western Australia, and co-authors conducted a study among teenage mothers to evaluate the predictors of a return to sexual intercourse and the incidence of RRP. Mrs Lewis said that 94 per cent of teenagers had resumed sex within 24 months postpartum. Of these, 30 per cent did so without contraception.

Circumcision of infant males prevents heterosexual HIV transmission 19 September 2010 - 12:00pm - MJA media release - Male circumcision is one of the most powerful interventions that is currently available in the fight against HIV, according to an article published in the Medical Journal of Australia. Dr Alex Wodak, Director of Alcohol and Drug Service at St Vincent's Hospital, Professor David Cooper, Director of the National Centre in HIV Epidemiology and Clinical Research, and Professor Brian Morris, Professor of Molecular Medical Sciences at the University of Sydney discuss introducing circumcision as a long-term strategy to reduce heterosexual HIV transmission. Dr Wodak said that Australia should change policy so that infant male circumcision rates are boosted in the face of rising heterosexual transmissions of HIV.

Study challenges anecdotal evidence of diagnostic delay in ovarian cancer 19 September 2010 - 12:00pm - MJA media release - Most women with ovarian cancer in Australia are investigated and diagnosed promptly, despite anecdotal suggestions to the contrary, according to research published in the Medical Journal of Australia. However, delays in clinical diagnosis are more common for women with lower incomes, those living in remote areas, and those with abdominal or bowel symptoms. Scientists from the Queensland Institute of Medical Research, University of Queensland and the National Breast and Ovarian Cancer Centre studied 1,463 women with epithelial ovarian cancer from an Australia-wide population-based study who completed a telephone interview in which they described the events that led to the diagnosis of their cancer.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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