Consequently, there have been some key legislative and regulatory changes impacting Australian physicians and the healthcare profession.
No-fault COVID-19 vaccine indemnity scheme
In August 2021 the Australian Federal Government announced the creation of a new COVID-19 Vaccine Indemnity Scheme. The government has advised that the scheme will provide Australians with quick access to compensation for COVID-19 claims related to the administration of a Therapeutic Goods Administration (TGA)-approved COVID-19 vaccine delivered through a government-approved program. The cost of compensation payments under this scheme will be fully funded by the government.
The intent of the scheme is to ensure patients injured by a vaccine product or through vaccinator negligence can receive reasonable compensation via a simple claims process without the burden of litigation.
Insurers and other key stakeholders have worked extensively on this very significant
scheme, which is intended to provide considerable protection for doctors and healthcare
The intention of the scheme is that those who administer vaccines, including doctors and healthcare professionals, are protected. It is anticipated that adversarial claims and litigation
processes will be replaced by access to compensation via the scheme, particularly in
cases where there is no link to the vaccine product or vaccinator negligence is found.
Professional regulations related to COVID-19
Striking the right balance in health professional regulation between public protection
and fairness to professionals is the subject of regular debate, particularly in response to high
profile cases. Australian governments have proposed to make both “public protection” and “public confidence” paramount guiding principles for professional regulation.
While public protection is uncontroversial, and has already been in place for some time in
New South Wales and Queensland, and is currently being implemented by national professional
boards—consultations on proposals surrounding public confidence have proven very controversial requiring close involvement of MPL insurers and other stakeholders.
At the other end of the scale, there have been some concerns about vexatious complaints.
A vexatious MPL complaint is “a groundless complaint made with an adverse primary intent to cause distress, detriment, or harassment to the subject” within the context of the Australian Health Practitioner Regulation Agency.1 Such complaints to professional regulators against doctors have led to a new framework that includes detailed guidance on identifying such complaints early and an emphasis that regulators will pursue practitioners who make such complaints against their colleagues.
While estimates suggest no more than 1% of complaints are truly vexatious—i.e., not made in good faith—they can have a devastating impact on a doctor personally and professionally.
Because it is not yet clear how the standard of public confidence would be applied, the impact on doctors and healthcare professionals is not yet clear. Could doctors and other professionals be judged less against the standards of their peers and more against perceived community expectations? For vexatious complaints, the new framework should go a long way to reducing these infrequent, but potentially devastating, events.
Real-time prescription monitoring and vaping Like many countries around the world, Australia has faced significant issues with the overuse and misuse of opioids and other addictive substances.
In response, a range of initiatives have been developed; one key effort is real-time prescription monitoring (RTPM) systems by certain states and territories. Victoria, Queensland, South Australia, the Northern Territory, and the Australian Capital Territory have rolled out RTPM systems; New South Wales is progressively introducing a RTPM system. In some states, RTPM systems are mandatory. Such systems give doctors a clear, up-to-date picture of higher-risk medications that their patients are taking.
RTPM implementation has been relatively trouble-free and broadly welcomed by the medical
profession. Medical indemnity insurance company engagement in this process has been important in moving these initiatives forward.
Beginning in October 2021, access to liquid nicotine vaping products across the country
has required a doctor’s prescription. This development has been driven by reservations about the use of liquid nicotine vaping products as a smoking cessation tool and increasing use amongst adolescents.
The Australian Federal Government, medical indemnity insurance companies, and others
have been working collaboratively to guide the profession through what these changes mean
and to clarify expectations of doctors, both those prescribing and those declining to prescribe.
The implications of RTPM mean that doctors and healthcare professionals need to consider
how to make best use of the new prescription system and the impact it has on their prescribing practices. The changes to vaping access may cause concerns about pushing a problem onto doctors and what it means for medico-legal and professional responsibilities, particularly where there are no TGA-approved products.
Growth of telehealth and Medicare recovery actions
The COVID-19 pandemic has driven a massive expansion in the use of telehealth across
Australia. In 2020 the Australian Federal Government quickly rolled out population wide telehealth funding by Medicare, which is Australia’s publicly funded universal healthcare plan. It has since committed to a longterm funding model.
Driven by concerns about corporate telehealth models with reduced face-to-face care,
a range of telehealth compliance initiatives have been undertaken to identify incorrect or
inappropriate claims. Telehealth compliance activities are part of a broader increase in
Medicare compliance activity. This includes nudge tactics to change medication prescribing
behaviours, voluntary payback invitations, and a more than six-fold increase in amounts
recovered from doctors by the Professional
The complexity of the Medicare system has raised calls by medical indemnifiers for
simplification and the need for improved professional education. Unfortunately, some doctors
have been caught up in compliance processes arising from confusion over patient eligibility requirements. High expectations remain for doctors and healthcare professionals to know and understand complex Medicare requirements, at the risk of significant paybacks if they make errors or mistakes.
Two Australian states—Victoria in mid-2019 and Western Australia in mid-2021—have introduced physician-assisted dying legislation, which is usually called voluntary assisted dying in Australia.2,3 Other states, including Queensland, New South Wales, and Tasmania, either have regimes starting in the next couple of years or they are about to debate new schemes.4
The approach to the legislation in each state is broadly similar. It generally involves access by competent patients to lethal substances via their doctors if they are suffering terminal illnesses, have six to 12 months to live, and are in intolerable pain. The process involves a number of medical assessments and independent oversight.
As far as doctors and healthcare professionals are concerned, to date there have been few complaints to oversight bodies or regulators. Over time, key medico-legal issues, including protections for professionals, risks of elder abuse, and conscientious objection, are likely to emerge.
With both an Australian Federal Senate inquiry and legislative review into healthcare professional regulation underway, governments considering widening the scope to sue
for privacy breaches, and reforms to conscientious objection regimes on the agenda, concerns
about regulation of medical practice will remain active in Australia.5,6
1.“Reducing, identifying and managing vexatious complaints,” Melbourne School of Population and Global Health Center for Health Policy, University of Melbourne, November 2017, https://www.ahpra.gov.au/documents/default.aspx?record=WD18%2F2518
2. “Voluntary Assisted Dying,” Victoria State Government Hospitals and Health Services, https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/endof-
3. “Voluntary Assisted Dying, Government of Western Australia Department of Health, July 2021, https://ww2.health.wa.gov.au/voluntaryassisteddying.
4. “Other states’ voluntary assisted dying schemes,” Queensland Government Health, Sept. 17, 2021, https://www.health.qld.gov.au/system-governance/legislation/voluntary-assisted-dying-bill/other-states.
5. “Administration of registration and notifications by the Australian Health Practitioner Regulation Agency and related entities under the Health Practitioner Regulation National Law,” Parliament of Australia, March 18, 2021, https://www.aph.gov.au/Parliamentary_
6. Details of the inquiry, including submissions and hearings, are available at www.aph.gov.au/