Health Legislation Amendment (Midwives and Nurse Practitioners) Act 2010
No. 29, 2010
An Act to amend the law relating to health and to make amendments consequential on the enactment of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010, and for related purposes
Contents
2 Commencement
3 Schedule(s)
Schedule 1—Amendments relating to medicare benefits and pharmaceutical benefits
Health Insurance Act 1973
National Health Act 1953
Schedule 2—Amendments consequential on the enactment of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010
Health Insurance Act 1973
Medical Indemnity Act 2002
Medicare Australia Act 1973
National Health Act 1953
Health Legislation Amendment (Midwives and Nurse Practitioners) Act 2010
No. 29, 2010
An Act to amend the law relating to health and to make amendments consequential on the enactment of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010, and for related purposes
[Assented to 12 April 2010]
The Parliament of Australia enacts:
This Act may be cited as the Health Legislation Amendment (Midwives and Nurse Practitioners) Act 2010.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 12 April 2010 |
2. Schedule 1 | The day after this Act receives the Royal Assent. | 13 April 2010 |
3. Schedule 2 | At the same time as the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010 commences. | 1 July 2010 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments relating to medicare benefits and pharmaceutical benefits
1 Subsection 3(1)
Insert:
eligible midwife has the meaning given by section 21.
2 Subsection 3(1)
Insert:
eligible nurse practitioner means a person who:
(a) is a nurse practitioner; and
(b) meets the requirements (if any) specified in the regulations for the purposes of this paragraph.
3 Subsection 3(1) (definition of medical entrepreneur)
Repeal the definition, substitute:
medical entrepreneur has the meaning given by section 3B.
4 Subsection 3(1)
Insert:
midwife means a person who is registered as a midwife, or authorised (however described) to practise midwifery, by or under a law of a State or an internal Territory that provides for the registration of midwives, or the authorisation of persons to practise midwifery.
5 Subsection 3(1)
Insert:
nurse practitioner means a person who is registered, or authorised (however described) to practise, as a nurse practitioner by or under a law of a State or an internal Territory that provides for the registration of nurse practitioners, or the authorisation of persons to practise as nurse practitioners.
6 Subsection 3(1)
Insert:
participating midwife means:
(a) if the Minister has approved a common form of undertaking under section 21A—an eligible midwife in respect of whom there is in force an undertaking given by him or her and accepted by the Minister under section 21B; or
(b) otherwise—an eligible midwife;
so far as the eligible midwife renders a service in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in the regulations, with one or more medical practitioners of a kind or kinds specified in the regulations, for the purposes of this definition.
7 Subsection 3(1)
Insert:
participating nurse practitioner means:
(a) if the Minister has approved a common form of undertaking under section 22—an eligible nurse practitioner in respect of whom there is in force an undertaking given by him or her and accepted by the Minister under section 22A; or
(b) otherwise—an eligible nurse practitioner;
so far as the eligible nurse practitioner renders a service in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in the regulations, with one or more medical practitioners of a kind or kinds specified in the regulations, for the purposes of this definition.
8 Subsection 3(5)
Omit “or a participating optometrist”, substitute “, a participating optometrist, a participating midwife or a participating nurse practitioner”.
9 After section 3AA
Insert:
3B Meaning of medical entrepreneur
For the purposes of this Act, a person is a medical entrepreneur if the person:
(a) employs a person mentioned in an item in the following table to render a service mentioned in the item; or
(b) is in a position to exercise control over a person mentioned in an item in the table rendering a service mentioned in the item; or
(c) leases, or otherwise makes available, to another person mentioned in an item in the table premises at which the other person renders a service mentioned in the item; or
(d) receives or obtains any property, benefit or advantage from the rendering of a service mentioned in an item in the table by a person mentioned in the item.
Item | Column 1 Person | Column 2 Service |
1 | practitioner | medical service |
2 | participating midwife | midwifery service |
3 | participating nurse practitioner | nurse practitioner service |
10 After paragraph 16A(1)(a)
Insert:
(aa) the service (whether a pathologist‑determinable service or not) was:
(i) determined to be necessary by a participating midwife (in this section also referred to as the treating practitioner), acting in his or her capacity as a participating midwife, whose patient the person was; and
(ii) a service of a kind specified in regulations made for the purposes of this subparagraph; or
(ab) the service (whether a pathologist‑determinable service or not) was:
(i) determined to be necessary by a participating nurse practitioner (in this section also referred to as the treating practitioner), acting in his or her capacity as a participating nurse practitioner, whose patient the person was; and
(ii) a service of a kind specified in regulations made for the purposes of this subparagraph; or
11 Application
The amendment made by item 10 applies in relation to a pathology service requested on or after 1 November 2010.
12 Subsection 16A(2)
After “(7)”, insert “or (7A)”.
13 Subsection 16A(7)
Omit “prescribed service”, substitute “prescribed pathology service”.
14 After subsection 16A(7)
Insert:
(7A) This subsection applies to a pathology service if:
(a) the service is a prescribed pathology service that is rendered by a participating midwife or a participating nurse practitioner; and
(b) the participating midwife or participating nurse practitioner by whom the service is rendered is the treating practitioner; and
(c) the service is specified in the determination made under section 4BB as a service to which this subsection applies if rendered by a participating midwife or participating nurse practitioner (as the case requires); and
(d) if that determination specifies circumstances in which the service must be rendered to be a pathology service to which this subsection applies—the service is rendered in those circumstances.
15 Application
Subsection 16A(7A) of the Health Insurance Act 1973 applies in relation to a pathology service rendered on or after 1 November 2010.
16 After subparagraph 16B(1)(b)(vi)
Insert:
or (vii) subject to subsection (3D), a participating midwife; or
(viii) subject to subsection (3E), a participating nurse practitioner;
17 After subsection 16B(3C)
Insert:
Participating midwives may only request certain services
(3D) A request made by a participating midwife, acting in his or her capacity as a participating midwife, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.
Participating nurse practitioners may only request certain services
(3E) A request made by a participating nurse practitioner, acting in his or her capacity as a participating nurse practitioner, for an R‑type diagnostic imaging service to be rendered is not effective for the purposes of subsection (1) unless it is a request for a service of a kind specified in regulations made for the purposes of this subsection.
18 Paragraphs 16B(9)(a) and (b)
Omit “or osteopath”, substitute “, osteopath, participating midwife or participating nurse practitioner”.
19 At the end of subsection 16B(9)
Add:
; and (h) if the requesting practitioner is a participating midwife who made the request in his or her capacity as a participating midwife—the request is not rendered ineffective by the operation of subsection (3D); and
(i) if the requesting practitioner is a participating nurse practitioner who made the request in his or her capacity as a participating nurse practitioner—the request is not rendered ineffective by the operation of subsection (3E).
20 Paragraph 16B(10A)(d)
Omit “practitioner” (second and third occurring), substitute “person”.
21 Application
Section 16B of the Health Insurance Act 1973, as in force after the commencement of this item, applies in relation to an R‑type diagnostic imaging service requested on or after 1 November 2010.
22 Paragraph 19DB(c)
After “practitioner”, insert “, participating midwife or participating nurse practitioner”.
23 Paragraph 20BA(1)(a)
Omit “practitioner”, substitute “person”.
24 Application
Subsection 20BA(1) of the Health Insurance Act 1973, as in force after the commencement of this item, applies in relation to the referral of a patient on or after 1 November 2010.
25 After section 20BA
Insert:
21 Meaning of eligible midwife
(1) For the purposes of this Act, a person is an eligible midwife if the person:
(a) is a midwife; and
(b) meets the requirements specified in the regulations for the purposes of this paragraph.
(2) However, if there are no regulations in force for the purposes of paragraph (1)(b), a person cannot be an eligible midwife for the purposes of this Act.
(3) Without limiting the requirements that may be specified in regulations made for the purposes of paragraph (1)(b), those requirements may include one or more of the following:
(a) a requirement to hold particular qualifications in midwifery;
(b) a requirement to have particular experience in midwifery;
(c) a requirement to be credentialled by a particular body.
21A Common form of undertaking by eligible midwife
(1) The Minister may approve a common form of undertaking to be given by an eligible midwife who wishes to become a participating midwife under this Act.
(2) The common form of undertaking is to make provision for any matters that the Minister thinks appropriate.
(3) Without limiting the generality of subsection (2), the common form of undertaking may make provision for any of the following matters:
(a) the kinds of service to which the undertaking relates;
(b) a specification of the premises at which the eligible midwife provides services of a kind to which the undertaking relates;
(c) an assurance by the eligible midwife that the fee to be charged by him or her for a service that is covered by an item that is expressed to relate to a service provided by a participating midwife will not, except in the circumstances specified in the undertaking in accordance with paragraph (d), exceed the appropriate fee stated in the item;
(d) increases of specified amounts in the maximum fee that may be charged under paragraph (c) in respect of services provided in circumstances specified in the undertaking.
(4) A common form of undertaking approved under subsection (1) is a legislative instrument.
(5) The Minister may, by legislative instrument, vary a common form of undertaking under subsection (1).
21B Undertaking by eligible midwife
Minister must accept or refuse undertaking
(1) If an eligible midwife gives to the Minister, in writing, an undertaking in accordance with the common form of undertaking, the Minister must, unless subsection (2) applies, accept the undertaking.
(2) If the Minister is satisfied that:
(a) if the undertaking were accepted, the eligible midwife would be likely to carry on the whole or a part of the practice or business of a relevant midwife (see subsection (3)); and
(b) the acceptance of the undertaking would be likely to have the effect of allowing the eligible midwife to avoid, in whole or in part, the financial consequences of the making of a determination under paragraph 124F(2)(d) or (e) in relation to the person;
the Minister must refuse to accept the undertaking unless he or she is satisfied that it is not in the public interest to do so.
Note: See section 21C for review of a decision to refuse to accept the undertaking, and when such a decision takes effect.
Meaning of relevant midwife
(3) For the purposes of subsection (2), a relevant midwife is an eligible midwife:
(a) in relation to whom a determination under paragraph 124F(2)(d) or (e) is in effect; or
(b) who the Minister has reasonable grounds to believe may have committed a relevant offence (within the meaning of section 124B) in relation to which a determination has not been made under subsection 124F(2).
Minister to give notice of decision
(4) The Minister must give the eligible midwife written notice of his or her decision to accept or refuse to accept the undertaking.
When undertaking comes into force
(5) The undertaking comes into force when accepted by the Minister.
Date of acceptance where decision reviewed etc.
(6) If a decision by the Minister to refuse to accept the undertaking does not take effect because it was set aside on review or in accordance with a judgment or order on appeal, the Minister is taken to have accepted the undertaking:
(a) on the date on which it was originally received by the Minister; or
(b) on an earlier date (not being a date earlier than the date on which it was signed) fixed by the Minister.
Termination of undertaking by participating midwife
(7) A participating midwife may, at any time, terminate an undertaking by giving the Minister a notice in the approved form.
(8) The notice must specify a date of termination that is not earlier than 30 days after the day on which it is given to the Minister.
When undertaking ceases to be in force
(9) The undertaking ceases to be in force:
(a) on the date of termination specified in the notice given under subsection (8); or
(b) when either of the following take effect:
(i) an agreement under subsection 92(1) that specifies that the Minister’s acceptance of the undertaking is taken to be revoked;
(ii) a final determination under section 106TA that contains a direction under paragraph 106U(1)(ea) that the Minister’s acceptance of the undertaking is taken to be revoked.
Effect of varying common form of undertaking
(10) If the common form of undertaking is varied under subsection 21A(5), an undertaking given under this section is taken to have been varied to accord with the common form of undertaking as so varied.
21C Review and effect of refusal by Minister to accept undertaking by eligible midwife
(1) This section applies if the Minister decides under subsection 21B(2) to refuse to accept an undertaking given by an eligible midwife.
(2) An application may be made to the Administrative Appeals Tribunal for review of the decision.
(3) The decision takes effect at the end of the 28 day period beginning on the day on which the Minister gave notice under subsection 21B(4) of the decision.
(4) Subsection (3) operates subject to any order by the Administrative Appeals Tribunal or by a court in relation to the decision.
22 Common form of undertaking by eligible nurse practitioner
(1) The Minister may approve a common form of undertaking to be given by an eligible nurse practitioner who wishes to become a participating nurse practitioner under this Act.
(2) The common form of undertaking is to make provision for any matters that the Minister thinks appropriate.
(3) Without limiting the generality of subsection (2), the common form of undertaking may make provision for any of the following matters:
(a) the kinds of service to which the undertaking relates;
(b) a specification of the premises at which the eligible nurse practitioner provides services of a kind to which the undertaking relates;
(c) an assurance by the eligible nurse practitioner that the fee to be charged by him or her for a service that is covered by an item that is expressed to relate to a service provided by a participating nurse practitioner will not, except in the circumstances specified in the undertaking in accordance with paragraph (d), exceed the appropriate fee stated in the item;
(d) increases of specified amounts in the maximum fee that may be charged under paragraph (c) in respect of services provided in circumstances specified in the undertaking.
(4) A common form of undertaking approved under subsection (1) is a legislative instrument.
(5) The Minister may, by legislative instrument, vary a common form of undertaking under subsection (1).
22A Undertaking by eligible nurse practitioner
Minister must accept or refuse undertaking
(1) If an eligible nurse practitioner gives to the Minister, in writing, an undertaking in accordance with the common form of undertaking, the Minister must, unless subsection (2) applies, accept the undertaking.
(2) If the Minister is satisfied that:
(a) if the undertaking were accepted, the eligible nurse practitioner would be likely to carry on the whole or a part of the practice or business of a relevant nurse practitioner (see subsection (3)); and
(b) the acceptance of the undertaking would be likely to have the effect of allowing the eligible nurse practitioner to avoid, in whole or in part, the financial consequences of the making of a determination under paragraph 124F(2)(d) or (e) in relation to the person;
the Minister must refuse to accept the undertaking unless he or she is satisfied that it is not in the public interest to do so.
Note: See section 22B for review of a decision to refuse to accept the undertaking, and when such a decision takes effect.
Meaning of relevant nurse practitioner
(3) For the purposes of subsection (2), a relevant nurse practitioner is an eligible nurse practitioner:
(a) in relation to whom a determination under paragraph 124F(2)(d) or (e) is in effect; or
(b) who the Minister has reasonable grounds to believe may have committed a relevant offence (within the meaning of section 124B) in relation to which a determination has not been made under subsection 124F(2).
Minister to give notice of decision
(4) The Minister must give the eligible nurse practitioner written notice of his or her decision to accept or refuse to accept the undertaking.
When undertaking comes into force
(5) The undertaking comes into force when accepted by the Minister.
Date of acceptance where decision reviewed etc.
(6) If a decision by the Minister to refuse to accept the undertaking does not take effect because it was set aside on review or in accordance with a judgment or order on appeal, the Minister is taken to have accepted the undertaking:
(a) on the date on which it was originally received by the Minister; or
(b) on an earlier date (not being a date earlier than the date on which it was signed) fixed by the Minister.
Termination of undertaking by participating nurse practitioner
(7) A participating nurse practitioner may, at any time, terminate an undertaking by giving the Minister a notice in the approved form.
(8) The notice must specify a date of termination that is not earlier than 30 days after the day on which it is given to the Minister.
When undertaking ceases to be in force
(9) The undertaking ceases to be in force:
(a) on the date of termination specified in the notice given under subsection (8); or
(b) when either of the following take effect:
(i) an agreement under subsection 92(1) that specifies that the Minister’s acceptance of the undertaking is taken to be revoked;
(ii) a final determination under section 106TA that contains a direction under paragraph 106U(1)(eb) that the Minister’s acceptance of the undertaking is taken to be revoked.
Effect of varying common form of undertaking
(10) If the common form of undertaking is varied under subsection 22(5), an undertaking given under this section is taken to have been varied to accord with the common form of undertaking as so varied.
22B Review and effect of refusal by Minister to accept undertaking by eligible nurse practitioner
(1) This section applies if the Minister decides under subsection 22A(2) to refuse to accept an undertaking given by an eligible nurse practitioner.
(2) An application may be made to the Administrative Appeals Tribunal for review of the decision.
(3) The decision takes effect at the end of the 28 day period beginning on the day on which the Minister gave notice under subsection 22A(4) of the decision.
(4) Subsection (3) operates subject to any order by the Administrative Appeals Tribunal or by a court in relation to the decision.
Note 1: The heading to section 23A is altered by adding the words “by optometrist” at the end.
Note 2: The heading to section 23D is replaced by the heading “Date of effect of refusal by Minister to accept undertaking by optometrist”.
Note 3: The heading to section 23DAA is altered by omitting “of undertaking” and substituting “by Minister to accept undertaking by optometrist”.
26 Paragraph 23DK(2)(a)
After “practitioner” (second occurring), insert “, participating midwife or participating nurse practitioner”.
27 Paragraph 23DK(5)(a)
After “practitioner” (first occurring), insert “, a participating midwife or a participating nurse practitioner”.
28 Subsection 23DK(5)
After “the practitioner”, insert “, participating midwife or participating nurse practitioner”.
29 Subsection 23DP(2)
After “practitioner”, insert “, participating midwife or participating nurse practitioner”.
30 Subsection 23DP(3)
After “practitioner” (second occurring), insert “, a participating midwife or a participating nurse practitioner”.
31 Subsection 23DP(3A)
After “practitioner”, insert “, participating midwife, participating nurse practitioner”.
32 Paragraph 23DP(4)(a)
Omit “practitioner;”, substitute “practitioner; and”.
33 At the end of subsection 23DP(4)
Add:
; and (d) a reference to a participating midwife includes a reference to a person who has been a participating midwife; and
(e) a reference to a participating nurse practitioner includes a reference to a person who has been a participating nurse practitioner.
34 Subsection 23DP(5)
After “practitioner”, insert “, a participating midwife or a participating nurse practitioner”.
35 Subsection 23DQ(4) (at the end of the definition of practitioner)
Add:
; or (g) a participating midwife; or
(h) a participating nurse practitioner.
36 Paragraph 23DZZIE(1)(a)
After “practitioner”, insert “, a participating midwife or a participating nurse practitioner”.
37 Paragraph 23DZZIE(1)(b)
Omit “practitioner”, substitute “person specified in paragraph (a)”.
38 Paragraph 23DZZIE(1)(c)
Omit “practitioner” (first occurring), substitute “person specified in paragraph (a)”.
39 Paragraph 23DZZIE(1)(c)
Omit “a practitioner” (second occurring), substitute “such a person”.
40 After paragraph 23DZZIE(2)(f)
Insert:
(fa) if the service is of a kind specified in regulations made for the purposes of subsection 16B(3D)—a participating midwife;
(fb) if the service is of a kind specified in regulations made for the purposes of subsection 16B(3E)—a participating nurse practitioner;
41 Subparagraphs 23DZZIE(2)(g)(i) and (ii)
Omit “(f)”, substitute “(fb)”.
42 Subsection 81(1) (after paragraph (d) of the definition of practitioner)
Insert:
(da) a midwife; or
(db) a nurse practitioner; or
43 Subsection 81(1) (after paragraph (c) of the definition of profession)
Insert:
(ca) midwifery;
(cb) the practice of a nurse practitioner;
44 Subsection 81(1) (paragraph (b) of the definition of service)
Omit “or an optometrist”, substitute “, an optometrist, a midwife or a nurse practitioner”.
45 After paragraph 92(2)(d)
Insert:
(da) if the person is a midwife and there is in force in respect of the person an undertaking under section 21B—that the Minister’s acceptance of the undertaking is to be taken to be revoked;
(db) if the person is a nurse practitioner and there is in force in respect of the person an undertaking under section 22A—that the Minister’s acceptance of the undertaking is to be taken to be revoked;
46 Subsection 92(7) (after paragraph (ba) of the definition of Part VII authority)
Insert:
(bb) the approval of an eligible midwife as an authorised midwife under section 84AAF of that Act;
(bc) the approval of an eligible nurse practitioner as an authorised nurse practitioner under section 84AAJ of that Act;
47 After paragraph 106U(1)(e)
Insert:
(ea) if the person under review is a midwife and there is in force in respect of the person an undertaking under section 21B—that the Minister’s acceptance of the undertaking is to be taken to be revoked;
(eb) if the person under review is a nurse practitioner and there is in force in respect of the person an undertaking under section 22A—that the Minister’s acceptance of the undertaking is to be taken to be revoked;
48 Subsection 106U(5) (after paragraph (ba) of the definition of Part VII authority)
Insert:
(bb) the approval of an eligible midwife as an authorised midwife under section 84AAF of that Act;
(bc) the approval of an eligible nurse practitioner as an authorised nurse practitioner under section 84AAJ of that Act;
49 Paragraph 106ZPA(1)(c)
Omit “8”, substitute “10”.
50 After subparagraph 106ZPA(1)(c)(iv)
Insert:
(iva) one is to be a midwife; and
(ivb) one is to be a nurse practitioner; and
51 Subsection 124B(1) (after paragraph (d) of the definition of practitioner)
Insert:
(da) a midwife; or
(db) a nurse practitioner; or
52 After paragraph 124EB(2)(b)
Insert:
(ba) if the Committee is convened in relation to a midwife—a midwife; or
(bb) if the Committee is convened in relation to a nurse practitioner—a nurse practitioner; or
53 Subsection 124FAA(2)
Omit “medical practitioner”, substitute “practitioner”.
54 Section 128C
Before “A medical”, insert “(1)”.
55 Section 128C
Omit “medical practitioner, or a person acting on behalf of a medical practitioner,”, substitute “person mentioned in subsection (2)”.
56 Section 128C
Omit “practitioner or person acting on behalf of the practitioner”, substitute “person”.
57 At the end of section 128C (after the note)
Add:
(2) The persons are as follows:
(a) a medical practitioner;
(b) a participating midwife;
(c) a participating nurse practitioner;
(d) a person acting on behalf of a person mentioned in paragraph (a), (b) or (c).
58 Subsection 129AA(1A)
Omit “or medical entrepreneur”, substitute “, a participating midwife, a participating nurse practitioner or a medical entrepreneur”.
59 Subsection 129AA(1B)
After “a practitioner”, insert “, a participating midwife or a participating nurse practitioner”.
60 Subsection 129AA(1B)
After “the practitioner”, insert “, participating midwife, participating nurse practitioner”.
61 Subsection 129AA(5)
After “practitioners”, insert “, midwives or nurse practitioners (as the case requires)”.
62 Subsection 129AAC(1)
Omit “or an optometrist”, substitute “, an optometrist, a midwife or a nurse practitioner”.
63 After paragraph 130(6)(e)
Insert:
(ea) a person or persons who, under a law of a State or Territory that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery, are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(eb) a person or persons who, under a law of a State or Territory that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners, are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
64 After paragraph 130(7)(c)
Insert:
(ca) the administration of a specified law of a State or Territory, being a law that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery; or
(cb) the administration of a specified law of a State or Territory, being a law that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners; or
65 After paragraph 130(7)(g)
Insert:
(ga) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (ca)—to the person or persons who are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(gb) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (cb)—to the person or persons who are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
66 Paragraph 130(9)(c)
Omit “or (7)(g)”, substitute “(ea) or (eb), or (7)(g), (ga) or (gb),”.
67 Subsection 4(1)
Insert:
midwife means a person who is registered as a midwife, or authorised (however described) to practise midwifery, by or under a law of a State or an internal Territory that provides for the registration of midwives, or the authorisation of persons to practise midwifery.
68 Subsection 4(1)
Insert:
nurse practitioner means a person who is registered, or authorised (however described) to practise, as a nurse practitioner by or under a law of a State or an internal Territory that provides for the registration of nurse practitioners, or the authorisation of persons to practise as nurse practitioners.
69 Subsection 4(2)
Omit “or (1C)”, substitute “, (1C), (1D) or (1E)”.
70 Subsection 84(1)
Insert:
authorised midwife means an eligible midwife in relation to whom an approval is in force under section 84AAF, so far as the eligible midwife provides midwifery treatment in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in a legislative instrument made by the Minister for the purposes of this definition, with one or more medical practitioners of a kind or kinds specified in the legislative instrument.
71 Subsection 84(1)
Insert:
authorised nurse practitioner means an eligible nurse practitioner in relation to whom an approval is in force under section 84AAJ, so far as the eligible nurse practitioner provides nurse practitioner treatment in a collaborative arrangement or collaborative arrangements of a kind or kinds specified in a legislative instrument made by the Minister for the purposes of this definition, with one or more medical practitioners of a kind or kinds specified in the legislative instrument.
72 Subsection 84(1)
Insert:
eligible midwife has the meaning given by section 84AAE.
73 Subsection 84(1)
Insert:
eligible nurse practitioner has the meaning given by section 84AAI.
74 Subsection 84(1)
Insert:
nurse practitioner treatment, in relation to a nurse practitioner, means treatment that the nurse practitioner is authorised (however described) to provide under a law of a State or an internal Territory.
75 Subsection 84(1) (at the end of the definition of PBS prescriber)
Add:
; or (d) an authorised midwife; or
(e) an authorised nurse practitioner.
76 Subsection 84AAB(4) (note)
Omit “105AC”, substitute “27A of the Administrative Appeals Tribunal Act 1975”.
77 Subsection 84AAC(4) (note)
Omit “105AC”, substitute “27A of the Administrative Appeals Tribunal Act 1975”.
Note: The heading to section 84AAC is altered by adding “of authorised optometrist” at the end.
78 Subsection 84AAD(4) (note)
Omit “section 105AC requires”, substitute “sections 105AC of this Act and 27A of the Administrative Appeals Tribunal Act 1975 require”.
Note: The heading to section 84AAD is altered by adding “relating to authorised optometrists” at the end.
79 After section 84AAD
Insert:
84AAE Meaning of eligible midwife
(1) For the purposes of this Part, a person is an eligible midwife if the person:
(a) is a midwife; and
(b) meets the requirements set out in a determination made under subsection (3).
(2) However, if there is no determination in force under subsection (3), a person cannot be an eligible midwife for the purposes of this Part.
(3) The Minister may, by legislative instrument, determine one or more requirements that a specified person must meet in order to be an eligible midwife for the purposes of this Part.
(4) The requirements that may be determined under subsection (3), include (but are not limited to) one or more of the following:
(a) a requirement to hold particular qualifications in midwifery;
(b) a requirement to have particular experience in midwifery;
(c) a requirement to be credentialled by a particular body.
(1) An eligible midwife may apply to the Secretary, in writing, to be an authorised midwife for the purposes of this Part.
(2) The Secretary may approve the application if satisfied that the eligible midwife meets the criteria determined under paragraph (3)(a). The approval is subject to any conditions determined under paragraph (3)(b).
(3) The Minister may, by legislative instrument, determine either or both of the following:
(a) criteria by which applications are to be considered under this section;
(b) conditions to which approvals under this section are subject.
(4) The Secretary must, as soon as is practicable, approve or reject an application under subsection (1) and notify the applicant in writing of the decision.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
84AAG Secretary may suspend or revoke approval of authorised midwife
(1) The Secretary may suspend or revoke an approval under section 84AAF if satisfied that the person to whom the approval relates:
(a) is not, at the time of the suspension or revocation, an eligible midwife; or
(b) does not, at the time of the suspension or revocation, meet the criteria that would apply if the person were to apply under subsection 84AAF(1) to be an authorised midwife at that time; or
(c) has breached a condition to which the approval is subject under paragraph 84AAF(3)(b); or
(d) has breached a condition to which an approval would be subject under paragraph 84AAF(3)(b) if the person were to apply under subsection 84AAF(1) to be an authorised midwife at that time.
(2) Before deciding to suspend or revoke the approval, the Secretary must notify the person that suspension or revocation is being considered. The notice must:
(a) be in writing; and
(b) include the Secretary’s reasons for considering the suspension or revocation; and
(c) invite the person to make written submissions to the Secretary within the period of 28 days (the submission period) after being given the notice.
(3) In deciding whether to suspend or revoke the approval, the Secretary must consider any written submissions made by the person during the submission period.
(4) The Secretary must give to the person written notice of the decision. If the decision is to suspend an approval, the notice must specify the period for which the approval is suspended.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
(5) If the Secretary does not give the person written notice of the decision within the period of 60 days after the end of the submission period, the Secretary is taken to have decided not to suspend or revoke the approval.
(6) If the Secretary suspends the approval, the Secretary may, by written notice at any time, further suspend or revoke the approval under subsection (1) or remove the suspension.
84AAH Review of decisions relating to authorised midwives
(1) If the Secretary:
(a) decides not to approve an eligible midwife under section 84AAF; or
(b) suspends or revokes an approval under section 84AAG;
the person to whom the approval relates may apply, in writing, to the Secretary for reconsideration by the Secretary of the decision.
(2) On receiving an application under subsection (1) relating to a decision not to approve an eligible midwife under section 84AAF, the Secretary must reconsider the decision and:
(a) affirm the decision; or
(b) approve the eligible midwife.
An approval under paragraph (b) is taken, for the purposes of this Act, to be an approval under section 84AAF.
(3) On receiving an application under subsection (1) relating to a suspension or revocation of an approval under section 84AAG, the Secretary must reconsider the decision and:
(a) affirm the suspension or revocation; or
(b) reinstate the approval.
A reinstatement under paragraph (b) has effect as if the approval had never been revoked.
(4) The Secretary must give to the applicant written notice of the Secretary’s decision under subsection (2) or (3).
Note: Sections 105AC of this Act and 27A of the Administrative Appeals Tribunal Act 1975 require the person to be notified of the person’s review rights.
(5) In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
84AAI Meaning of eligible nurse practitioner
(1) For the purposes of this Part, a person is an eligible nurse practitioner if the person:
(a) is a nurse practitioner; and
(b) meets the requirements (if any) set out in a determination made under subsection (2).
(2) The Minister may, by legislative instrument, determine one or more requirements that a specified person must meet in order to be an eligible nurse practitioner for the purposes of this Part.
84AAJ Authorised nurse practitioners
(1) An eligible nurse practitioner may apply to the Secretary, in writing, to be an authorised nurse practitioner for the purposes of this Part.
(2) The Secretary may approve the application if satisfied that the eligible nurse practitioner meets the criteria determined under paragraph (3)(a). The approval is subject to any conditions determined under paragraph (3)(b).
(3) The Minister may, by legislative instrument, determine either or both of the following:
(a) criteria by which applications are to be considered under this section;
(b) conditions to which approvals under this section are subject.
(4) The Secretary must, as soon as is practicable, approve or reject an application under subsection (1) and notify the applicant in writing of the decision.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
84AAK Secretary may suspend or revoke approval of authorised nurse practitioner
(1) The Secretary may suspend or revoke an approval under section 84AAJ if satisfied that the person to whom the approval relates:
(a) is not, at the time of the suspension or revocation, an eligible nurse practitioner; or
(b) does not, at the time of the suspension or revocation, meet the criteria that would apply if the person were to apply under subsection 84AAJ(1) to be an authorised nurse practitioner at that time; or
(c) has breached a condition to which the approval is subject under paragraph 84AAJ(3)(b); or
(d) has breached a condition to which an approval would be subject under paragraph 84AAJ(3)(b) if the person were to apply under subsection 84AAJ(1) to be an authorised nurse practitioner at that time.
(2) Before deciding to suspend or revoke the approval, the Secretary must notify the person that suspension or revocation is being considered. The notice must:
(a) be in writing; and
(b) include the Secretary’s reasons for considering the suspension or revocation; and
(c) invite the person to make written submissions to the Secretary within the period of 28 days (the submission period) after being given the notice.
(3) In deciding whether to suspend or revoke the approval, the Secretary must consider any written submissions made by the person during the submission period.
(4) The Secretary must give to the person written notice of the decision. If the decision is to suspend an approval, the notice must specify the period for which the approval is suspended.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires the person to be notified of the person’s review rights.
(5) If the Secretary does not give the person written notice of the decision within the period of 60 days after the end of the submission period, the Secretary is taken to have decided not to suspend or revoke the approval.
(6) If the Secretary suspends the approval, the Secretary may, by written notice at any time, further suspend or revoke the approval under subsection (1) or remove the suspension.
84AAL Review of decisions relating to authorised nurse practitioners
(1) If the Secretary:
(a) decides not to approve an eligible nurse practitioner under section 84AAJ; or
(b) suspends or revokes an approval under section 84AAK;
the person to whom the approval relates may apply, in writing, to the Secretary for reconsideration by the Secretary of the decision.
(2) On receiving an application under subsection (1) relating to a decision not to approve an eligible nurse practitioner under section 84AAJ, the Secretary must reconsider the decision and:
(a) affirm the decision; or
(b) approve the eligible nurse practitioner.
An approval under paragraph (b) is taken, for the purposes of this Act, to be an approval under section 84AAJ.
(3) On receiving an application under subsection (1) relating to a suspension or revocation of an approval under section 84AAK, the Secretary must reconsider the decision and:
(a) affirm the suspension or revocation; or
(b) reinstate the approval.
A reinstatement under paragraph (b) has effect as if the approval had never been revoked.
(4) The Secretary must give to the applicant written notice of the Secretary’s decision under subsection (2) or (3).
Note: Sections 105AC of this Act and 27A of the Administrative Appeals Tribunal Act 1975 require the person to be notified of the person’s review rights.
(5) In this section:
decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.
80 At the end of paragraph 86(1)(b)
Add:
; or (iv) midwifery treatment by an authorised midwife; or
(v) nurse practitioner treatment by an authorised nurse practitioner;
81 Subsection 87(3)
After “88(6)”, insert “or (6A)”.
82 Subsection 87(3)
After “medical practitioner” (second occurring), insert “, authorised midwife or authorised nurse practitioner”.
83 Subsections 88(1AA) and (1B)
Repeal the subsections.
84 Subsection 88(1D)
Repeal the subsection, substitute:
(1D) Subject to this Part, an authorised midwife is authorised to write a prescription on or after 1 November 2010 for the supply of any pharmaceutical benefit determined from time to time by the Minister for the purposes of this subsection, by legislative instrument.
(1E) Subject to this Part, an authorised nurse practitioner is authorised to write a prescription on or after 1 November 2010 for the supply of any pharmaceutical benefit determined from time to time by the Minister for the purposes of this subsection, by legislative instrument.
(1F) When writing a prescription under subsection (1), (1A), (1C), (1D) or (1E) for the supply of a pharmaceutical benefit that has a pharmaceutical item, the PBS prescriber, in identifying the pharmaceutical benefit that he or she is directing to be supplied, need not specify:
(a) a listed brand of the pharmaceutical item in the pharmaceutical benefit; or
(b) the manner of administration of the pharmaceutical item in the pharmaceutical benefit.
85 At the end of subsection 88(3)
Add:
; or (d) by an authorised midwife otherwise than in relation to the midwifery treatment of a person requiring that pharmaceutical benefit; or
(e) by an authorised nurse practitioner otherwise than in relation to the nurse practitioner treatment by the authorised nurse practitioner of a person requiring that pharmaceutical benefit.
86 After subsection 88(6)
Insert:
(6A) If a person who is an authorised midwife or authorised nurse practitioner may, in accordance with this Part, direct a repeated supply of a pharmaceutical benefit, the person may, instead of directing a repeated supply, direct in the prescription the supply on one occasion of a quantity or number of units of the pharmaceutical benefit not exceeding the total quantity or number of units of:
(a) if the pharmaceutical benefit has a pharmaceutical item—the pharmaceutical item; or
(b) in any other case—the pharmaceutical benefit;
not exceeding the total quantity or number of units that could be prescribed if the person directed a repeated supply.
(6B) However, the person may only make a direction under subsection (6A) if:
(a) the regulations prescribe either or both of the following:
(i) circumstances in which the person may make such a direction;
(ii) conditions on the making of such a direction; and
(b) the direction is made in those circumstances and in accordance with those conditions.
87 Paragraph 89(b)
After “section 93,”, insert “section 93AA,”.
88 After section 93
Insert:
(1) Except as prescribed by the regulations, an authorised midwife or an authorised nurse practitioner is authorised to supply such pharmaceutical benefits as the Minister, by legislative instrument, determines to persons who are entitled under this Part to receive those pharmaceutical benefits.
(2) For the purposes of this section, the Minister may, by legislative instrument, determine the maximum quantity or number of units of a pharmaceutical benefit which may be obtained by an authorised midwife or an authorised nurse practitioner during a specified period.
(3) The regulations may make provision for or in relation to the obtaining of pharmaceutical benefits by an authorised midwife or an authorised nurse practitioner for the purposes of this section.
(4) The regulations may make provision for or in relation to payments by the Commonwealth in respect of the supply of pharmaceutical benefits under this section.
89 After paragraph 98(1)(c)
Insert:
; or (d) an authorised midwife requests that his or her approval as an authorised midwife under section 84AAF be cancelled; or
(e) an authorised nurse practitioner requests that his or her approval as an authorised nurse practitioner under section 84AAJ be cancelled;
90 Paragraphs 99(2A)(b), (2AB)(c) and (2B)(c)
After “88(6)”, insert “or (6A)”.
91 After paragraph 99ZJ(4)(aa)
Insert:
(ab) a letter from an authorised midwife or an authorised nurse practitioner signed on or after 1 November 2010 to that effect; or
92 Subparagraph 99ZJ(4)(b)(ii)
Repeal the subparagraph, substitute:
(ii) setting out the name and address of the medical or dental practitioner, or the optometrist, authorised midwife or authorised nurse practitioner, who prescribed the substances; and
93 After subsection 99ZJ(4)
Insert:
(4A) For the purposes of subparagraph (4)(b)(ii), the substances must have been prescribed:
(a) for substances prescribed by an optometrist—on or after 1 January 2008; or
(b) for substances prescribed by an authorised midwife or an authorised nurse practitioner—on or after 1 November 2010.
94 Subsection 99ZJ(5)
Omit “(4)(a) or (b)”, substitute “(4)(a), (aa), (ab) or (b)”.
95 After subparagraph 99ZK(3)(c)(iii)
Insert:
(iiia) a letter from an authorised midwife or an authorised nurse practitioner signed on or after 1 November 2010; or
96 Paragraph 103(4AA)(a)
Omit “or optometrical treatment”, substitute “, optometrical or midwifery treatment, or the nurse practitioner treatment by an authorised nurse practitioner,”.
97 After subsection 105AB(2)
Insert:
(3) An application may be made to the Tribunal for review of a decision of the Secretary under paragraph 84AAH(2)(a) or (3)(a) or 84AAL(2)(a) or (3)(a).
98 After paragraph 133(1)(ba)
Insert:
(bb) in the case of a defendant who is an authorised midwife—suspend:
(i) the approval of that person under section 84AAF; or
(ii) the authority to supply prescribed pharmaceutical benefits conferred upon that person by section 93AA; or
(bc) in the case of a defendant who is an authorised nurse practitioner—suspend:
(i) the approval of that person under section 84AAJ; or
(ii) the authority to supply prescribed pharmaceutical benefits conferred upon that person by section 93AA; or
99 Subsections 133(2) and (5)
Omit “medical practitioner, dental practitioner, optometrist or pharmacist” (wherever occurring), substitute “person”.
100 Subsection 133(6)
After “optometrist”, insert “, a midwife, a nurse practitioner”.
101 Subsection 133(7)
Insert:
authorised midwife has the same meaning as in Part VII.
102 Subsection 133(7)
Insert:
authorised nurse practitioner has the same meaning as in Part VII.
103 After paragraph 134(1)(c)
Insert:
; or (d) the approval of a person as an authorised midwife under section 84AAF is suspended or revoked; or
(da) the approval of a person as an authorised nurse practitioner under section 84AAJ is suspended or revoked;
104 Subsection 134(1)
Omit “that medical practitioner, dental practitioner or optometrist” (wherever occurring), substitute “the person to whom the authority or approval relates”.
105 Subsection 134(3)
Omit “authority conferred upon a medical practitioner by section 88 or section 93, the medical practitioner shall”, substitute “authority or approval referred to in subsection (4), the person to whom the authority or approval relates must”.
106 Subsection 134(3)
Omit “that medical practitioner’s”, substitute “the first‑mentioned person’s”.
107 After subsection 134(3) (before the penalty)
Insert:
(4) The authorities and approvals are as follows:
(a) an authority conferred upon a medical practitioner by section 88 or 93;
(b) an approval of a person as an authorised midwife under section 84AAF;
(c) an approval of a person as an authorised nurse practitioner under section 84AAJ;
(d) an authority conferred upon an authorised midwife or an authorised nurse practitioner by section 93AA.
108 After paragraph 135A(6)(g)
Insert:
(ga) a person or persons who, under a law of a State or Territory that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery, are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(gb) a person or persons who, under a law of a State or Territory that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners, are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
109 After paragraph 135A(7)(d)
Insert:
(da) the administration of a specified law of a State or Territory, being a law that provides for the registration of midwives, or the authorisation (however described) of persons to practise midwifery; or
(db) the administration of a specified law of a State or Territory, being a law that provides for the registration of nurse practitioners, or the authorisation (however described) of persons to practise as nurse practitioners; or
110 After paragraph 135A(7)(k)
Insert:
(l) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (da)—to the person or persons who are empowered to:
(i) take disciplinary action with respect to midwives; or
(ii) investigate midwives in connection with the taking of such disciplinary action; or
(la) if the certificate specifies a purpose in relation to a specified law of the kind referred to in paragraph (db)—to the person or persons who are empowered to:
(i) take disciplinary action with respect to nurse practitioners; or
(ii) investigate nurse practitioners in connection with the taking of such disciplinary action; or
111 Paragraph 135A(9)(c)
Omit “or (h) or (7)(j) or (k)”, substitute “, (ga), (gb) or (h), or (7)(j), (k) (l) or (la),”.
112 After paragraph 139A(1)(db)
Insert:
(dc) a person was or was not an authorised midwife under section 84AAF;
(dd) a person was or was not an authorised nurse practitioner under section 84AAJ;
(de) a person was or was not authorised under section 93AA to supply pharmaceutical benefits specified in the certificate;
1 Subsection 130(1)
Omit “medical indemnity legislation”, substitute “indemnity legislation”.
2 Subsection 130(25)
Insert:
indemnity legislation means:
(a) the Medical Indemnity Act 2002; and
(b) the Medical Indemnity (Competitive Advantage Payment) Act 2005; and
(c) the Medical Indemnity (Run‑off Cover Support Payment) Act 2004; and
(d) the Medical Indemnity (UMP Support Payment) Act 2002; and
(e) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; and
(f) the Midwife Professional Indemnity (Run‑off Cover Support Payment) Act 2010.
3 Subsection 130(25) (definition of medical indemnity legislation)
Repeal the definition.
4 Subsection 4(1)
Insert:
eligible midwife has the same meaning as in the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010.
5 Subsection 28(1)
After “profession”, insert “, other than practice as an eligible midwife”.
6 Paragraph 30(1)(b)
After “profession”, insert “, other than practice as an eligible midwife”.
7 Paragraph 34A(1)(a)
After “profession”, insert “(other than practice as an eligible midwife)”.
8 Paragraph 34E(1)(b)
After “profession”, insert “, other than practice as an eligible midwife”.
9 After paragraph 3A(1)(bc)
Insert:
(bd) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
10 Paragraph 3A(1)(c)
Omit “or (bc)”, substitute “, (bc) or (bd)”.
11 After paragraph 3A(2)(bb)
Insert:
(bc) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
12 Paragraph 3A(2)(c)
Omit “section 6, 7 or 7A or paragraph 86(1)(a) of the Crimes Act 1914”, substitute “section 6 of the Crimes Act 1914, or section 11.1, 11.4 or 11.5 of the Criminal Code,”.
13 Paragraph 3A(2)(c)
Omit “or (bb)”, substitute “, (bb) or (bc)”.
14 At the end of paragraph 3A(2)(d)
Add:
; or (iii) a Commonwealth contribution (within the meaning of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010).
15 After paragraph 3A(2A)(cb)
Insert:
(cc) an offence against the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; or
16 Paragraph 3A(2A)(d)
Omit “or (cb)”, substitute “, (cb) or (cc)”.
17 At the end of paragraph 3A(2A)(e)
Add:
; or (iii) a Commonwealth contribution (within the meaning of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010).
18 At the end of subsection 42(2)
Add:
(d) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010;
(e) the Midwife Professional Indemnity (Run‑off Cover Support Payment) Act 2010.
19 Subsection 135A(1)
Omit “medical indemnity legislation”, substitute “indemnity legislation”.
20 Subsection 135A(24)
Insert:
indemnity legislation means:
(a) the Medical Indemnity Act 2002; and
(b) the Medical Indemnity (Competitive Advantage Payment) Act 2005; and
(c) the Medical Indemnity (Run‑off Cover Support Payment) Act 2004; and
(d) the Medical Indemnity (UMP Support Payment) Act 2002; and
(e) the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010; and
(f) the Midwife Professional Indemnity (Run‑off Cover Support Payment) Act 2010.
21 Subsection 135A(24) (definition of medical indemnity legislation)
Repeal the definition.
[Minister’s second reading speech made in—
House of Representatives on 24 June 2009
Senate on 9 September 2009]
(137/09)