Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021

23 November 2021

This bill is designed to provide health consumers with more transparency, self-determination and the ability to make an informed choice when considering a health procedure.

The Health Insurance Legislation Amendment (Transparent Patient Outcomes) Bill 2021 will enable the Minister to create and maintain Transparent Patient Outcomes registers for a range of medical specialties that will allow consumers to view the performance of individual practitioners and patient outcomes for procedures they are poised to undergo.

Public disclosure of surgical performance outcomes, in the transparent way intended by this bill, began with the YourIVFSuccess database launched in February 2021. The portal allows Australians considering fertility treatment to objectively view the performance of fertility clinics across Australia. This is an Australian first. That database empowers prospective patients to make an informed choice about their treating clinic by allowing them to view and compare objective and standardised data rather than forcing them to rely on referrals, selective self-reported data from clinics, and hearsay.

This vastly improved transparency is a model that should be applied to other surgical specialties, whether it be gynaecological surgery, orthopaedic, cardiothoracic or plastic and reconstructive surgery. Any surgical speciality would be appropriate for a public register of surgical performance and outcomes.

This bill would enable the Minster to make rules to create a Transparent Patient Outcomes register that would include information such as the number and type of surgical procedures performed by a practitioner, their surgical revision rate, their patient mortality rate, any prosthesis device they may use, patient data and any other information deemed relevant to that specialty. This information would also be available at the facility level.

There is research to demonstrate that practitioners who perform fewer surgeries of particular types compared to their peers have increased revision rates and poorer patient outcomes - see for instance, 'Relation between surgeon volume and risk of complications after total hip arthroplasty', published in the BMJ in May 2014[ ], which found that patients whose surgeons had performed 35 or fewer such procedures in the previous year had an increased risk of dislocation and early revision.

As such, it would be of value for a prospective patient to know whether or not their intended surgeon has extensive experience in the particular surgery they need to undergo - and in particular, whether the surgeon has a comparatively high revision rate. Having this information before undergoing surgery is in the patient's own best interests.

Such a database would provide objective comparable statistics and would provide prospective patients factual information through which they could exercise greater self-determination in their choice of practitioner (rather than relying on trust, assurance or referrals) and the database could also serve to reassure an anxious patient.

One option for such a registry may be joint replacement surgery. Orthopaedic surgeons perform a significant proportion of all surgeries and thus affect a significant proportion of patients. According to the AIHW's report on elective surgery waiting times, 15% of all hospital admissions in 2017-18 were for orthopaedic surgery (including knee and hip replacements).

Given the life impacts of poor prostheses and surgical revisions on patients, there is substantial public value in a Transparent Patient Outcomes register for joint replacement surgery, among other surgical specialities.

Orthopaedic surgeon performance data and patient outcomes data is already collected in the Australian Orthopaedic Association National Joint Replacement Registry (AOANJRR). It holds information on all hip, knee, shoulder, elbow, wrist, ankle and spinal disc replacement surgery performed in public and private hospitals as well as patient reported measures of pre- and post-surgery pain and outcomes of surgery.

Public and private hospitals submit their joint replacement data to the AOANJRR monthly using specific forms which are completed in theatre at the time of surgery.

Core funding for the Registry is provided via the Department of Health on a cost-recovery basis through a levy on prosthesis manufacturers and distributors.

However, reuse of the AOANJRR data is currently prohibited. This data is unable to be shared or used for any purpose beyond the AOANJRR database as it is collected as part of a Quality Assurance Activity under the Health Insurance Act 1973.

Under the Health Insurance Act 1973, data or documents 'brought into existence solely for the purposes of a declared quality assurance activity' cannot be shared or repurposed for any other use. The intention behind this is to provide protection from civil liability claims but it also blocks other useful purposes, such as that intended by this bill.

The Transparent Patient Outcomes bill overcomes this administrative hurdle by creating an exemption for disclosure of information that is made in accordance with the Transparent Patient Outcomes rules while retaining the core liability protections intended by the Act's disclosure prohibitions. This minor amendment avoids the need for the same data to be collected twice.

The bill also makes clear that data on a registry cannot be used in court proceedings. This is to ensure that the database is used as intended - to allow consumers to make an informed choice - and not for further unintended purposes. In addition, FOI applicants or other recipients of registry information (which may or may not be in the public domain) could not later attempt to use registry data in legal proceedings. The bill also seeks to provide an exemption for secondary disclosure of quality assurance data contained on a registry in order to avoid any risk that public servants and others handling registry data may inadvertently breach the law should they, for example, supply quality assurance data collected under the rules as part of a Freedom of Information request.

To ensure the data contained on a registry does not breach privacy laws, the bill requires the Minister to consult with the Information Commissioner on the making of the rules, and the bill will also provide for corrections of inaccurate information.

The bill will also operate prospectively and will only apply to quality assurance activity data which is gathered or which becomes known from commencement.

The bill endeavours to strike a balance between providing useful information to guide patients, providing ongoing protections to those who, in good faith, provide, collect and manage performance and outcomes data, and also endeavours to ensure registry information is not appropriated in unintended ways, such as for court proceedings.

Australians have a right to data that allows them to make the most informed choice possible in the interests of their own health. We should not shy away from such public accountability and transparency.

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