57 My Battle to Make the Health Insurers Obey the Law Part 11 - Section 3: 15 October 2024

So far, I have avoided the technicalities of legislation governing Australian private health insurance.  I must now summarise t=what the law mandated.  Because the health insurers relied on raw power and on the maxim “Bullshit baffles Brains”, they – with the help of the Health Minister Greg Hunt, the Health Department and the Ombudsman – were able to ignore the law. 

I cannot continue to skip over th4 relevant legal requirements, so I will now summarise the law in words that I hope anyone who tries (and you definitely WILL need to try) can understand.  I will try and hack away the confusion created by Bullshit Baffles Brains approach.

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The Private Health Insurance Act[i] and associated Rules require all Australian health insurers to comply with certain requirements.  I will call the Private Health Insurance Act either the “PHI Act” or “the Act”.  Some of the legal se obligations are as follows, but I am omitting those obligations not directly relevant to the refusal of the health insurers to pay for treatments given by Lift Cancer Care Services.

 

·       Paragraph (a) of subsection 5 of section 185 of the Act requires compliance with the Act; ·       Paragraph (b) of subsection 5 of section 1865 of the Act requires compliance with the Rules made under the PHI Act; and ·       Paragraph (d) of subsection (5) of section 186 of the Act requires compliance with any directions given under the PHI Act.

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Subsection (1) of section 102 of the Act requires each health insurers to provide insurance covering hospital treatment.  Hospital treatment insurance must comply with standards set out in the Act.

Subsection (5) of section 121 of the Act defines hospital treatment for the purposes of the Act.  The definition is long and convoluted and I quote the relevant parts of it as set out in section 121-5.

 

(1) Hospital treatment is treatment (including the provision of goods and services) that: (a) is intended to manage a disease, injury or condition; and (b) is provided to a person: (i) by a person who is authorised by a hospital to provide the treatment; or (ii) under the management or control of such a person; and I either: (i) is provided at a hospital; or (ii) is provided, or arranged, with the direct involvement of a hospital. (2) Without limiting subsection (1), hospital treatment includes any other treatment, or treatment included in a class of treatments, specified in the Private Health Insurance (Health Insurance Business) Rules for the purposes of this subsection. (2A) Without limiting subsection (1) or (2), hospital treatment also includes benefits for travel or accommodation relating to treatment covered by subsection (1) or (2). (3) Without limiting subsection (1) or (2), the reference to treatment in those subsections includes a reference to any of, or any combination of, accommodation, nursing, medical, surgical, podiatric surgical, diagnostic, therapeutic, prosthetic, pharmacological, pathology or other services or goods intended to manage a disease, injury or condition. (4) Despite subsections (1), (2) and (2A), treatment is not hospital treatment if it is specified in, or is included in a class of treatments specified in, the Private Health Insurance (Health Insurance Business) Rules for the purposes of this subsection. (5) A hospital is a facility for which a declaration under subsection (6) is in force …

 

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The delegate of the Minister for Health declared Lift Cancer Care Services to be a ‘hospital’ under the PHI Act on 13 December 2017. There is no uncertainty about whether Lift is a ‘hospital’ as defined in section 121-5(5) of the Act.  Granting of status as a recognised hospital is not a matter of merely ticking off a series of boxes on a form.  A rigorous physical inspection is required and that inspection results in hospital accreditation only if the strict requirements for accreditation are fully met.  Lift is a genuine, fully accredited hospital.

 

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Treatments given at Lift are hospital treatments as defined in section 121-5 of the Act because:

·       They are intended to ‘manage a disease, injury or condition’ – specifically cancer;

·       All patients at Lift have been diagnosed with cancer and they cannot attend unless their treating medical practitioner thinks that they are likely to get a benefit from the treatments provided by Lift.

·       All Lift treatments are administered only after a thorough medical examination by a medical practitioner physically on the premises of Lift.  No treatment is possible on any occasion unless a medical examination takes place.  All treatments are carried out in light of the condition of the patient at the time of attendance at Lift.

·       Any treatment given after the medical examination is carried out strictly in accordance with the instructions of the medical practitioner.

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·       Following the words of section 121-5, treatments given to all Lift patients are provided as instructed by the relevant Lift GP and:

o   That GP is authorised by Lift Cancer Care Services (which is an accredited hospital) to provide the treatment; or alternatively

o   That GP is at the very least, ‘under the management or control” of Lift Cancer Care Services

·       Treatments provided at Lift are treatments provided by the accredited hospital called Lift Cancer Care Services.

·       The Lift treatments include (alone or in combination) medical, therapeutic or other services intended to manage a disease, injury or condition as contemplated by section 121-5(3) of the Act

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Is it possible that the treatments given at Lift fall within the definition of “excluded treatments” as contemplated by section 121-5(4) of the Act? 

No, they are not “excluded treatments”.  Excluded treatments are defined in Rule 8 of the Private Health Insurance (Health Insurance Business) Rules made under section 121-5(4) of the Act because:

·       Lift treatments are not ‘excluded natural therapy treatments’ specified in Rule 3 of the Business Rules. ·       Type C Certificates as contemplated by clause 7 of Schedule 3 of the Benefit Rules are provided for all Lift treatment claims.

 

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If your head is reeling after trying to work through this summary of an involved tangle of legislative provisions, don’t be surprised. 

In fact, I was eventually told in writing by Sheena Jack, Chief Executive of HCF that the only aspect of the legislation on which HCF relied to justify its refusal to pay for Lift treatments, did not involve any dispute at all about the legislative summary I have set out above. 

In practical terms, nothing in the preceding paragraphs was disputed according to the CEO of HCF.

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