The legislative instrument the Department of Health has drafted to make arrangements for the Opiate Dependence Treatment Program potentially lawful simply sets aside pharmacy remuneration and consumer protections when it comes to accessing a PBS-listed medicine.
As reported by BioPharmaDispatch today, the draft legislative instrument was distributed to stakeholders for consultation just weeks after Department of Health officials struggled to answer questions about the program at Senate Estimates in late October.
The Opiate Dependence Treatment Program (ODTP) is in legal limbo given there is no formal exercise of legislated power to support the current arrangements under which patients are forced to pay uncapped and unregulated private dispensing fees to access PBS-listed medicines.
For these patients, when it comes to accessing their PBS-listed medicine they effectively live like uninsured Americans.
Health minister Greg Hunt says he has the power under Section 100 of the National Health Act 1953 to simply remove pharmacy remuneration and patient protections to co-payments and safety-net in favour of these private dispensing fees without a legislative instrument and the associated parliamentary scrutiny.
The Legislation Act 2003 sets the law for how ministers exercise power. It is simply wrong to suggest the health minister can remove protections and increase patient costs without a legislative instrument.
Brand price premiums, therapeutic group premiums and special patient contributions are all capped and covered by legislative instruments - not like uncapped and unregulated private dispensing fees under the ODTP.
Yet even then, the move to implement the ODTP through a legislative instrument raises serious questions because of the discriminatory nature of the program. The Federal Court has found people with an opiate dependence live with a disability.
The draft legislative instrument sent to stakeholders in late November does not include any Human Rights Declaration. Every legislative instrument requires this declaration of its impact on human rights.
The draft instrument simply sets aside the sections of the National Health Act 1953 (Act) that provide patient protections such as the co-payment and the safety-net, exposing them to unregulated and uncapped private dispensing fees for their PBS-listed medicines.
It is unclear under what power the government will set aside their protections and it contradicts the intent of the 'special arrangement' provisions in Section 100 of the Act.
In addition, Section 87(1) says an approved pharmacist or anyone else with the authority to dispense cannot "Demand or receive a payment (other than a payment from the Commonwealth) or other valuable consideration in respect of the supply of a pharmaceutical benefit."
How does this permit the charging of private uncapped and unregulated administration fees, let alone their imposition through the stroke of a pen without any parliamentary scrutiny?
