15 October 2021
Linking VPR to rebates looks like conscription
If a patient’s access to certain Medicare rebates becomes dependent on voluntarily registering with one general practice, doctors could find themselves being conscripted to the Commonwealth, says a legal expert.
A number of GPs have been outraged by the proposal, included in the draft Primary Health Care 10 year plan on Wednesday, which would see access to MBS telehealth, health assessments, chronic disease management plans and medication reviews become contingent on an existing and continuous relationship between a patient and a practice.
Dr Umair Masood, vice president of grassroots advocacy organisation the Australian Society of General Practice, said he had serious concerns about a system which appeared to mirror the capitation models introduced to the UK’s NHS.
“The harder you make access to healthcare under these sort of capitation-type models, the more you could end up driving more patients to emergency,” he told TMR.
“If you’re thinking about making access to healthcare a priority for the future, this is not a good way to do it.”
The RACGP, which has been involved in the Primary Health Reform Steering Group for the past two years, has tentatively welcomed the plan, under which telehealth would become grounded in a continuous relationship between a patient and doctor.
But RACGP president Dr Karen Price told TMR she would be wary of a scheme that “cherrypicked” MBS items and linked it to a VPR system.
Perhaps most alarming though is whether this novel idea as it stands could be seen as a form of practical compulsion for patients to engage with a certain GP or practice.
Margaret Faux, a solicitor specialising in Medicare and health insurance law, told TMR that if found to be the case, it could offend the civil conscription provision in the Constitution: Section 5123 A (xxiiiA)13 on “the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances”.
A decision in 2009 by the High Court of Australia (Chee Kan Kenneth Wong v Commonwealth of Australia) held that sections 10, 20 and 20A of the Act did not amount to civil conscription of doctors.
The reasoning was that under Medicare, doctors do not compulsorily provide service for the Commonwealth, or for other bodies on the Commonwealth’s behalf.
“The civil conscription caveats in the Constitution have been described as a ‘rare constitutional guarantee’, which protects both doctors and patients equally,” Ms Faux said.
“It cocoons the relationship between a patient and doctor inside a private contract which allows doctors to charge whatever fees they want, and protects patients so they cannot be forced to have a required relationship with a doctor, without their consent.”
A scheme where doctors are only able to offer MBS-subsidised telehealth consults to patients who nominate them as their usual practitioner could test the limits of this clause.
The draft plan hinges on the activation of the government’s voluntary patient registration scheme (VPR) which would be set to begin from as early as July next year.
In practice, the change would mean that to be eligible for registration, patients in metro and regional centres would have to attend at least three face-to-face visits with the same GP practice in two years, while those in remote areas would only have to attend one.
Dr Masood said he was concerned that linking a VPR model to Medicare rebates could remove patient choice.
“Allowing patients to choose their practitioner has been one of the cornerstones of our health system, so we could be about to take patient choice away which is really dangerous,” he told TMR.
“I think there’s a lot of patients in this country that may go to a certain GP for women’s health, they might see another GP for their skin cancer-related concerns. Why are we taking that choice away? And do we know if doing that really improves care?”
On the other hand, Dr Price said the RACGP’s position remained that telehealth should be available to patients who have an ongoing relationship with their GP.
“We would be supportive of a voluntary patient enrolment model in the future,” she said.
“This would replace the current 12-month rule for telehealth eligibility, which is not practical and has caused headaches for many GPs and patients.”
“However, we need to be clear that any future model is not about cherrypicking certain MBS items and linking it to voluntary patient registration.
“The RACGP will only support moves for stronger linkages between patients and their usual general practice if it is combined with significant funding over and above current MBS items and practice incentive payments.”
But Ms Faux said that linking Medicare access to VPR was a rather paternalistic way of looking at health and could be construed as forcing patients to engage with the same provider.
“We’re saying this is ‘voluntary’ registration, but it really isn’t, because it’s saying ‘If you want to access telehealth the only way to do that is to engage in this type of relationship.”
The public will have until 29 November to provide written feedback on the draft plan.
However, subject to the government’s decisions following the public consultation period, Ms Faux said there could be “very interesting” Constitutional arguments about patient rights in the works.
“We know the High Court has reached consensus that both legal compulsion and practical compulsion may offend the civil conscription provision of the Constitution.
“For now, we don’t know where the line is in terms of what will offend that provision. And until we’re all back in the High Court, we won’t know.”