This Bills Digest replaces a preliminary Digest published on 25 March 2024 to assist in early consideration of the Bill.

Purpose of the Bill

The purpose of the Health Legislation Amendment (Removal of Requirement for a Collaborative Arrangement) Bill 2024 (the Bill) is to amend the Health Insurance Act 1973 and the National Health Act 1953 to remove legislated requirements for a collaborative arrangement between an eligible nurse practitioner, or eligible midwife, and a medical practitioner, for that nurse practitioner or midwife to provide services under Medicare or prescribe Pharmaceutical Benefits Scheme (PBS) medicines.

Source: Nursing and Midwifery Board of Australia, Nurse practitioner standards for practice (pp. 2, 8) and Midwife standards for practice (p. 7).

The Bill implements the commitment made in the 2023–24 Budget (pp. 149–150) to better recognise the role nurse practitioners and participating midwives play in the delivery of health care services by removing the legislated requirement for collaborative arrangements.

The Assistant Minister for Health and Aged Care, Ged Kearney, explained the purpose of the Bill, stating:

This Bill is about setting the conditions for those nurse practitioners and endorsed midwives to deliver the care that they are educated and qualified to deliver, allowing them to collaborate in a flexible way when patient needs require it, without limiting their professional scope of practice and autonomy.

Background

Access to Medicare and prescribing for nurse practitioners and midwives

Since the passage of the Health Legislation Amendment Midwives and Nurse Practitioners Act 2010, patients of eligible midwives and nurse practitioners who have collaborative arrangements with medical practitioners have been able to access certain Government-subsidised services and medicines through the Medicare Benefits Schedule (MBS) and PBS.

Nurse practitioners and midwives can apply to be a participating nurse practitioner or midwife under section 16A and 16B of the Health Insurance Act, which allows access to the MBS. Approval is subject to meeting eligibility requirements set out in the Health Insurance Act, the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020 and profession specific requirements including being registered and endorsed by the Nursing and Midwifery Board of Australia.

Nurse practitioners and midwives can also apply for approval as PBS prescribers (authorised nurse practitioner or authorised midwife) under section 84AAF (midwives) or section 84AAJ (nurse practitioners) of the National Health Act. Endorsement as a nurse practitioner does not give automatic approval to prescribe PBS medicines. PBS prescribing is limited by the practitioner’s scope of practice, and state and territory prescribing rights. The Pharmaceutical Benefits Advisory Committee (PBAC) is responsible for making recommendations to the Minister for Health regarding medicines for prescribing by authorised nurse practitioners and authorised midwives.

Requirements of collaborative arrangements are specified in subordinate legislation,[1] which explains that collaborative arrangements can take various forms, including:

• the nurse practitioner or midwife being employed by the medical practitioner
• the medical practitioner referring a patient to the nurse practitioner or midwife in writing
• where the parties make an agreement in writing recording the terms of their collaborative arrangements.

The arrangements must provide for consultation, referral and transfer of care to a specified medical practitioner.

Nurse practitioners and participating midwives are the only health professionals legally mandated to establish a collaborative arrangement to access the MBS and PBS.

A response to doctor concerns

The requirements for collaborative arrangements (that the current Bill proposes to remove) were added to the Health Legislation Amendment (Midwives and Nurse Practitioners) Bill 2009 as Government amendments. This followed advocacy from the Australian Medical Association (AMA) and other doctors regarding the need for collaborative care models to address fragmentation of care.[2] The AMA was keen for requirements for collaborative care to be enshrined in legislation. However, nursing and midwifery groups felt it was unnecessary given existing professional requirements.[3]

Whether a legislated collaborative arrangement is needed

Over the years there have been a number of reviews or reports considering the need for collaborative arrangements, reflecting the differing stakeholder positions as highlighted above.

As part of Medicare Benefits Schedule (MBS) Review Taskforce deliberations, the Participating Midwives Reference Group (p. 59) and Nurse Practitioner Reference Group (p. 42) both provided reports to the Taskforce recommending removal of the legislated requirements for collaborative arrangements. They argued this had become an impediment to practice that was not adequately justified as a tool to reduce fragmented care. The Taskforce did not endorse these recommendations, instead strongly endorsing collaborative arrangements in ensuring patient safety and recommending a review of those arrangements be undertaken (p. 1).

In 2022, the Department of Health and Aged Care engaged IPS Management Consultants to conduct an independent review of collaborative arrangements. An Executive Summary extract was published in 2023, which reported:

In some contexts, collaborative arrangements were found to work well, such as in hospital settings where medical practitioners are readily available and are willing to enter into a collaborative arrangement with Nurse Practitioners. In other contexts, such as rural and remote areas, it was found that collaborative arrangements were harder to enter into due to the lack of available Medical Practitioners which impacts on the Nurse Practitioner’s ability to offer MBS rebated services in rural and remote locations. (p. 9)

While acknowledging some positive impacts of collaborative arrangements for patients, the review found more generally, negative impacts where:

… there was a lack of collaborative arrangements that led to limited access to care through increased cost and delayed care, MBS and PBS restrictions, poor communication between health practitioners and misalignment of scope between collaborating health practitioners. (p. 9)

The Nurse Practitioner Workforce Plan, published in May 2023, also highlighted concern about collaborative arrangements:

While many NPs [nurse practitioners] and medical practitioners are satisfied with collaborative arrangements and believe it benefits consumers, existing arrangements have also resulted in negative outcomes. For example, confusion on role delineation, patient liability, MBS billing and resistance to engaging NPs. (p. 45)

Existing professional standards mandate collaboration

The Assistant Minister for Health and Aged Care argues the Bill will not impede clinical collaboration or the delivery of care, with existing professional standards for practice and safety and quality guidelines requiring collaboration with other health professionals. The Explanatory Memorandum notes these are actionable standards under the Health Practitioner Regulation National Law as in force in each state and territory (p. 2).

The relevant standards for practice include broad expectations around collaboration, for example:

• Statement 2.4 of the Nurse practitioner standards for practice requires nurse practitioners to collaborate and consult for care decisions to obtain optimal outcomes for the person receiving care.
• Standard 2 of the Midwife standards of practice states that the midwife ‘participates in and/or leads collaborative practice’ and Standard 5 states that the midwife ‘collaboratively develops plans until options, priorities, goals, actions, anticipated outcomes and timeframes are agreed with the woman, and/or relevant others’.

Codes of conduct for each profession also set out expectations for collaborative practice, for example, the Code of conduct for nurses states nurses must recognise when an activity is not within their scope of practice and refer people to another health practitioner when this is in the best interests of the person receiving care (p. 8).

Position of major interest groups

Nursing and midwifery groups enthusiastically welcomed the Bill. The Australian College of Nursing stated the removal of collaborative arrangements would ‘provide nurses and midwives with much-deserved respect and acknowledgement of their clinical expertise’ and provide patients and communities with ‘better, quicker and more affordable access to important care and treatments’. The Australian College of Midwives noted ‘[m]idwives around the country have lobbied hard for the removal of the arrangement which some referred to as a ‘medical veto’ to care’ while the Australian Nursing and Midwifery Federation described the Bill as a ‘common-sense solution’. Similarly, the Australian College of Nurse Practitioners argued the Bill would ‘… dismantle barriers to care provision, particularly in rural and remote areas where healthcare workforce shortages and challenges in retaining health care professionals persist’.

In contrast, the AMA and Royal Australian College of General Practitioners have expressed disappointment. The AMA is concerned it will ‘promote a siloed approach to care’ and noted:

When midwives and nurse practitioners were given access to the Medicare Benefits Schedule (MBS), there was a rock-solid government commitment to ensure strong collaboration between nurse practitioners, midwives and medical practitioners.

This commitment was translated into legislative provisions requiring a collaboration arrangement, aimed at preventing the fragmentation of care and ensuring strong clinical government [governance] was in place.

Committee consideration

The Senate Selection of Bills Committee recommended the Bill not be referred to committee for inquiry and report.

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill (p. 20).

The Parliamentary Joint Committee on Human Rights had no comment on the Bill (p. 3).

Policy position of non-government parties/independents

The Coalition supported the Bill in the House of Representatives while calling for urgent and comprehensive action to address workforce challenges.

Independent Dr Helen Haines MP spoke in support of the Bill during the House debate.

Financial implications

According to the Explanatory Memorandum, while the Bill is not expected to have any direct financial impacts, by removing a barrier to primary care access, there will be an indirect financial impact over time of increased Medicare service provision and PBS prescribing (p. 1).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible as it does not raise any human rights issues.[4]

Key provisions

Subsection 3(1) of the Health Insurance Act includes definitions for participating midwife and participating nurse practitioner that enable these groups to be regulated by the Commonwealth and incorporated into the Medicare legislative framework. Items 2 and 4 of the Bill amend the definitions by omitting all the words after paragraph (b) of each of the definitions, which contain the additional requirement that an eligible midwife or eligible nurse practitioner will only satisfy the definition for participating midwife and participating nurse practitioner if they render a service in a collaborative arrangement of a kind specified in the regulations, with one or more medical practitioners of a kind specified in the regulations.

Similarly, section 84 of the National Health Act sets out definitions for authorised midwife and authorised nurse practitioner. Items 5 and 6 of the Bill similarly amend those definitions to remove the requirement for a collaborative arrangement with a medical practitioner.

Concluding comments

The Bill removes a requirement that was introduced nearly 15 years ago in response to concerns raised by doctors about the potential for fragmentation of care when allowing nurse practitioners and midwives access to the MBS and PBS. While doctors’ groups have consistently argued for this requirement to be maintained, it appears that concerns about its impact on access to care, particularly in regional and rural areas, alongside acknowledgement that no other health professional is subject to a similar requirement, have convinced the Government it is no longer necessary or appropriate. In the absence of a formal collaborative arrangement as currently specified in legislation, nurse practitioners and midwives would remain subject to broad professional obligations to engage in collaborative practice.