industry & reform
Freedom of choice ?
New telehealth changes may be unconstitutional , warns expert .
Margaret Faux interviewed by Eleanor Campbell
A
new voluntary patient registration scheme is set to come into effect in July as part of the government ’ s primary care health plan .
Under the new reforms , all public health care patients in Australia will be required to register with a GP before they access telehealth services .
The scheme , which has yet to pass the draft phase , has been heavily advocated for by peak primary healthcare bodies who say it will encourage greater continuity of care for patients .
One of Australia ’ s leading Medicare experts , Dr Margaret Faux , says the changes raise significant concerns over consumer rights and constitutional law .
“ Under voluntary registration it appears that GPs will retain their constitutional right to charge whatever fees they choose , but consumers will lose their reciprocal rights to choose their GPs if they want to access telehealth .
8 | nursingreview . com . au
“ There are constitutional issues around that because it is a type of practical compulsion .”
Faux joined Nursing Review to chat about the new VPR scheme and what it means for medical practitioners and patients across Australia .
NR : Tell us about the VPR scheme . What ’ s it all about ? MF : We understand that from July this year the MBS Telehealth system is going to change again , and there will be a new controversial , voluntary patient registration or VPR system that is going to come into effect . That is based on recommendations in the 10-year primary healthcare plan .
What it means is that MBS Telehealth will not be available to a patient unless they ’ re registered with a GP practice . Although the new law is described as voluntary , patients will be unable to access a doctor or seek medical treatment via telehealth if they are not registered . That actually leaves them with no other option but to register . That leads to a whole host of potential problems .
Many legal experts including yourself have said there are potential constitutional implications of this plan . What are they ? There ’ s both constitutional problems and consumer law problems . The first is that the High Court has settled the fact that in this country , the relationship between a privately practising doctor and a patient is a contract . It ’ s governed by general principles of contract law , like contracting with your electrician in that you negotiate a price and decide to go ahead or not .
What it also means is that doctors are free to set their fee for their services in this country , and they cannot be constricted or compelled to become a public service and work for the government . That ’ s why doctors can set their fee .
With the voluntary patient registration it appears GPs will retain their constitutional right to charge whatever fees they choose , but consumers will lose their reciprocal rights to choose their GPs if they want to access telehealth . There are constitutional issues around that because it is a type of practical compulsion .
While it ’ s called voluntary , it isn ’ t really if you want to access telehealth , which all Australians should be able to access . The questions are , does this arrangement intrude , impermissibly into that private contract between a doctor and a patient ?
There is also a consumer law issue because it effectively creates a type of third line forcing , which is illegal in this country . Under consumer law , third line forcing and misleading and deceptive conduct are both illegal . Again , to my legal mind , there are really important questions that need to be considered here because you ’ re forcing patients into exclusive dealing with a GP who can charge them whatever they want .
It ’ s worrying in the sense that it ’ s described as voluntary patient registration , but again , it really isn ’ t .
In any other area of trade or commerce , if you described something , or marketed something as voluntary , when in reality it