There might finally be proper parliamentary scrutiny of the tragedy that is the Opiate Dependence Treatment Program (ODTP).
The ODTP has been closely scrutinised in recent years and is currently the subject of a post-market review by the Pharmaceutical Benefits Advisory Committee.
It is worth remembering the recent history and why this program is in desperate need of reform.
In 2019, a document released in response to a Freedom of Information request revealed that the Section 100 'special arrangement' for the ODTP under which the Commonwealth funds the medicine but removes basic patient protections, including capped co-payments and the safety net, is not lawfully enforced as a legislative instrument.
The government does not currently remunerate pharmacists for dispensing medicines under the ODTP and the 'special arrangement' exposes patients to unregulated and uncapped fees. These fees can exceed $200 each month.
Many of these patients are seeking to recover from an addiction that was fully funded by Medicare and the PBS.
The ODTP is the only one of 15 Section 100 'special arrangements' not enforced through a legislative instrument. The other 14 cover areas such as cancer medicines and human growth hormone.
These instruments are a requirement of the Legislation Act 2003, which says, “A legislative instrument is not enforceable by or against any person (including the Commonwealth) unless the instrument is registered as a legislative instrument.”
The ODTP 'special arrangement' has not been registered, as required, meaning it is not lawfully enforced. How can the ODTP fees be lawful?
Former health minister Greg Hunt and his officials have consistently argued that the power exists under Section 100 of the National Health Act 1953 to make the ODTP special arrangement. However, that power has never been lawfully enforced.
Department of Health officials have consistently struggled to provide clarity and have even appeared confused in their responses to questions at Senate Estimates hearings.
The Senate Standing Committee for the Scrutiny of Delegated Legislation also raised the lack of a legislative instrument with former minister Greg Hunt, describing it as potentially unlawful. Correspondence released by the committee, which was chaired by one of Mr Hunt's Liberal Party colleagues, revealed its frustration with his obfuscatory responses.
In late 2020, the former government distributed a draft legislative instrument to lawfully enforce the ODTP 'special arrangement' for stakeholder consultation. The draft, which proposed lawfully enforcing the removal of patient protections, was withdrawn.
The decision to withdraw the draft was likely due to the fact the special arrangement proposed to discriminate against patients the Federal Court has found to be living with a disability. This would breach Australia's anti-discrimination laws.
This week, the Senate is expected to consider the National Health Amendment (General Co-payment) Bill 2022 on Wednesday. The Bill will reduce the general PBS co-payment from $42.50 to $30 on 1 January 2023.
The irony of this Bill is that it will worsen the discriminatory arrangements for patients trying to recover from their opiate addiction by widening the gap between their private fees and the official PBS co-payment.
It needs to be fixed.
