The legislation that governs the PBS (National Health Act 1953) grants the health minister significant power over the program. Of course, that power only becomes policy and outcomes when it is formally exercised through regulation (legislative instruments).
A policy and related outcome simply have no legal standing unless they are formally implemented through a legislative instrument. The government issues literally dozens of legislative instruments every day - they are the evidence of ministers and their delegates exercising power.
A new PBS listing or price reduction is implemented through a legislative instrument. Health minister Greg Hunt's monthly announcements on new PBS listings are only possible because of power exercised through legislative instruments.
It is unclear whether the National Health Act 1953 (Act) grants the minister the power to do what successive governments have done to people accessing treatment for opiate dependence.
However, it is becoming increasingly unclear how the minister or their delegate in the Department of Health have ever formally exercised any power under the Act for the current arrangements that underpin the Opiate Dependence Treatment Program (ODTP).
This is the program that removes a small number of PBS-listed medicines from co-payment and safety-net arrangements. Community pharmacists do not receive fees for dispensing these medicines.
In the absence of a legislative instrument, treatments funded through the ODTP would be subject to the same arrangements that apply to the vast majority of the other around 1,000 medicines reimbursed through the PBS.
A legislative instrument only comes into force when it is lodged with the Federal Register of Legislation.
Anyone with an interest in the ODTP, or equitable access to medicines for some of the most marginalised and vulnerable Australians, might see if they can find any legislative instrument covering the program.
There is a Department of Health document that describes the operation of the ODTP. It was released in September 2019 in response to a Freedom of Information (FOI) request. It looks like a legislative instrument. It has most of the features of a legislative instrument including an official giving the appearance of exercising power. Yet it does not seem to appear on the Federal Register of Legislation.
This might raise important questions over the legality of the current ODTP arrangements.
These arrangements fund the medicine. Yet they deny pharmacists dispensing fees. Someone should calculate the magnitude of dispensing fees that might be retrospectively owed to community pharmacy.
More worryingly, the arrangements deliberately deny some Australians the protection of PBS co-payment and safety-net arrangements.
For context, some of these people are being forced to spend over $2,000 per year on access to subsidised treatment for opiate dependence. The magnitude of this cost is the direct result of the federal government's decision to deny them access to benefits the vast majority Australians rightly take for granted.
The concessional safety-net was recently reduced to $316.80 per year.
Speaking in parliament on the reduction, health minister Greg Hunt said, "In effect, it will make the acquisition of medicines cheaper for patients who have chronic needs and who are frequent users of the PBS to meet their health requirements. The bill will enable PBS patients to reach the safety net earlier in the calendar year and provide them earlier access to free or reduced-cost PBS medicines.”
Well, unless you are an Australian with chronic needs and your frequent use of the PBS is for the treatment for opiate dependence.
The Department of Health document allows pharmacists to charge patients an uncapped 'administration' fee for their opiate dependence treatment.
The use of the term 'administration' is not an accident. It is a deliberate workaround of the law. They can not use the words 'co-payment' or 'contribution' because they have a legal meaning when it comes to the PBS.
This is how they are intentionally making it more difficult for people accessing treatment for opiate dependence to qualify for the PBS safety-net. These are Australians recovering from an addiction who are amongst some of the most marginalised and vulnerable in the community.
Why is the system discriminating against these people?
It is almost as if the arrangements for the ODTP have been established with a view to further stigmatising this group of Australians.
In fact, numerous coronial inquiries have identified the magnitude of this very issue and called for action.
The Federal Court has also ruled that dependence on opiates is a disability. So how can the government possibly justify constructing and maintaining a system that compels people with a disability to pay more for their PBS reimbursed treatment and without the protection of a safety-net?
The shocking irony is that, while the government will not properly fund dispensed access to treatment for opiate addiction, it will happily fund it for those experiencing a relapse.
