These Regulations are the Medical Indemnity Regulations 2003.
3 Definitions
In these Regulations:
Act means the Medical Indemnity Act 2002.
Commonwealth State or Territory agency means the Commonwealth, a State or Territory, or a Commonwealth, State or Territory authority.
COVID‑19 human biosecurity emergency period has the meaning given by subregulation 12A(4).
public sector specialist means a medical practitioner who:
(a) is employed by a Commonwealth, State or Territory agency as a full‑time salaried medical officer in the public sector; and
(b) is recognised by that agency as being a specialist in a particular specialty in a medical profession.
Part 2—Commonwealth payments
Division 2.1—IBNR indemnity scheme
4 Amount recoverable from MDO or insurer after IBNR indemnity paid—late payment penalty rate
For paragraph 27(2)(a) of the Act, the rate of 0.03227397% per day is prescribed.
Note: The rate prescribed by this regulation is the general interest charge rate set by the Australian Taxation Office as at 15 August 2003.
Division 2.2—High cost claim indemnity scheme
5 High cost claim threshold
For paragraph 29(1)(b) of the Act, the amount of $500,000 is prescribed.
Division 2.3—Exceptional claims indemnity scheme
8 Criteria for certifying a claim as a qualifying claim
(1) For paragraph 34E(1)(c) of the Act, the circumstances in relation to a claim are the circumstances specified in subregulation (2) or (3).
(2) The circumstances specified by this subregulation are:
(a) the claim is or was made by a person who is an Australian citizen or a resident of Australia; and
(b) the incident or one or more of the incidents in a series of related incidents to which the claim relates, occurs or occurred outside Australia while the person is or was:
(i) engaged in a sporting activity (in the capacity of a participant, adjudicator, judge, referee or umpire or in a similar capacity); or
(ii) engaged in a cultural activity; or
(iii) undertaking official business for a Commonwealth, State or Territory agency; or
(iv) travelling with a person to whom any of the other subparagraphs of this paragraph applies; and
(c) the practitioner against whom the claim is made is a permanent resident of Australia who, at the time the incident or one or more of the incidents occurs or occurred, was accompanying the person in the course of, or in connection with, the practice by the practitioner of a medical profession.
(3) This circumstances specified by this subregulation are:
(a) the practitioner against whom the claim is made is a permanent resident of Australia who, at the time the incident or one or more of the incidents in a series of related incidents to which the claim relates, occurs or occurred, was undertaking aid work outside Australia; and
(b) the incident or one or more of the incidents occurs or occurred in the course of, or in connection with, the undertaking of that aid work.
(4) In this regulation:
Australia includes each external Territory.
Division 2.4—Run‑off cover indemnity scheme
12 Eligible run‑off claims
(1) For paragraph 34ZB(2)(f) of the Act, the following classes of persons are specified as persons to whom subsection 34ZB(2) of the Act applies:
(a) the class of persons each of whom is a medical practitioner:
(i) who:
(A) is aged 65 years or over and who, apart from the provision of medical services free of charge in the course of private medical practice, has retired permanently from practice as a medical practitioner; or
(B) is aged 65 years or over and has retired permanently from providing medical services for payment in the course of private medical practice; or
(C) has not engaged in practice as a medical practitioner, apart from the provision of medical services free of charge in the course of private medical practice, at any time during the preceding period of 3 years; or
(D) has not provided medical services for payment in the course of private medical practice at any time during the preceding period of 3 years; or
(E) has ceased (temporarily or permanently) the person’s practice as a medical practitioner, apart from the provision of medical services free of charge in the course of private medical practice, because of maternity (within the meaning of subsection 34ZB(4A) of the Act); or
(F) has ceased (temporarily or permanently) the person’s practice as a medical practitioner, apart from the provision of medical services free of charge in the course of private medical practice, because of permanent disability (within the meaning of subsection 34ZB(4B) of the Act); and
(ii) who is providing medical services free of charge in the course of private medical practice;
(b) the class of persons each of whom meets the following requirements:
(i) the person was the holder of a temporary visa (within the meaning of the Migration Act 1958) that permitted the holder to work in Australia and that did not prohibit the holder from engaging in medical practice in Australia;
(iii) the person engaged in medical practice in Australia;
(iv) the person has permanently ceased medical practice in Australia;
(v) the person no longer resides in Australia;
(c) the class of persons each of whom is a medical practitioner who:
(i) was engaged in medical practice, other than:
(A) in private medical practice; or
(B) in a practice conducted wholly outside Australia and the external Territories; and
(ii) is aged 65 years or over; and
(iii) has retired permanently from that medical practice;
(d) the class of persons each of whom is a medical practitioner who:
(i) was engaged in medical practice, other than:
(A) in private medical practice; or
(B) in a practice conducted wholly outside Australia and the external Territories; and
(ii) has not engaged in that medical practice at any time during the preceding period of 3 years.
Note: Example: A former public sector medical practitioner could be a person within the class provided by paragraph (c) or (d).
(2) In this regulation:
private medical practice has the meaning given by subsection 34ZB(5) of the Act.
12A Eligible run‑off claims—COVID‑19 human biosecurity emergency period
(1) For the purposes of paragraph 34ZB(2)(f) of the Act, the class of persons to each of whom subregulation (2) applies is specified as persons to whom subsection 34ZB(2) of the Act applies.
(2) Subject to subregulation (3), this subregulation applies to a person if subsection 34ZB(2) of the Act would apply to the person (disregarding this regulation) were it not for practice as a medical practitioner that the person begins to engage in:
(a) on or after the commencement of this regulation; and
(b) during a COVID‑19 human biosecurity emergency period.
(3) If, 1 month after the end of the COVID‑19 human biosecurity emergency period, the person is still engaged in practice as a medical practitioner, subregulation (2) ceases to apply to the person at the end of that month.
(4) A COVID‑19 human biosecurity emergency period is a human biosecurity emergency period (within the meaning of the Biosecurity Act 2015) in relation to which the declaration listed human disease (within the meaning of that Act) is human coronavirus with pandemic potential.
13 Late repayment of overpayment—penalty rate
For paragraph 34ZM(2)(a) of the Act, the rate of 0.03227397% per day is prescribed.
Note: The rate prescribed by this regulation is the general interest charge rate set by the Australian Taxation Office as at 15 August 2003.
14 Run‑off Cover Claims and Administration Protocol—other matters
(1) For subsection 34ZN(4) of the Act, the Run‑off Cover Claims and Administration Protocol may provide for making payments on account of legal, administrative or other costs incurred by MDOs and medical indemnity insurers in respect of an incident, or a series of related incidents, that occurred in the course of, or in connection with, a person’s practice as a medical practitioner if the requirements of subregulations (2) and (3) are met.
(2) The MDO or medical indemnity insurer must have been first notified (the notification date) of the incident, or one or more of the series of related incidents, on or after 1 July 2004.
(3) If a claim were to be made relating to the incident, or one or more of the series of related incidents, on the notification date, the claim would be an eligible run‑off claim.
Part 3—Payments towards the cost of providing indemnities
Division 3.1—UMP support payment
19 UMP support payment exemption (members of MDASA and MDAV)
(1) This regulation applies to a person who, on 30 June 2000, was a member of:
(a) the Medical Defence Association of South Australia Limited; or
(b) the Medical Defence Association of Victoria Limited.
(2) For subsection 52(4) of the Act, the person is exempt from UMP support payment until the date of commencement of:
(a) a determination made by the Minister under section 12 of the Act that the MDO of which the person was a member is not a participating MDO; or
(b) a determination made by the Minister under section 22 of the Act of an unfunded IBNR factor in relation to the MDO of which the person was a member.
20 UMP support payment exemption (public sector specialists)
(1) For subsection 52(4) of the Act, a person is exempt from UMP support payment for a contribution year if:
(a) on 1 May 2002 the person was, and on the imposition day for the contribution year the person is, employed as a public sector specialist; and
(b) on 30 June 2000 the person was engaged in private practice in the medical profession in the same specialty in which the person is employed as a public sector specialist; and
(c) during the period from 1 May 2002 to the imposition day for the contribution year (inclusive):
(i) under the employment arrangement with the Commonwealth, State or Territory agency by whom the person is employed, the person did not have a right to engage in private practice in a medical profession, other than in relation to pre‑booked patients who were treated by the person before 31 December 2002; and
(ii) the person has not received income as a medical practitioner, other than income received in his or her capacity as a public sector specialist or any income received in relation to pre‑booked patients who were treated by the person before 31 December 2002; and
(d) before the payment day for that person for the contribution year, the person gives to the Chief Executive Medicare a notice in writing from the Commonwealth, State or Territory agency by whom the person is employed stating that:
(i) the agency recognises the person as qualified in the specialty in the medical profession in which the person is currently practising as a public sector specialist; and
(ii) the person has been a full‑time, salaried medical officer in public sector employment from 1 May 2002 to the date of the notice (inclusive); and
(iii) under the employment arrangement with the Commonwealth, State or Territory agency by whom the person is employed, the person does not have a right to engage in private practice in a medical profession, other than in relation to pre‑booked patients who were treated by the person before 31 December 2002.
(1A) A person who does not satisfy the conditions in subregulation (1) for a contribution year, only because the person has not given the notice required by paragraph (1)(d) to the Chief Executive Medicare before the payment day for that person for the contribution year, is taken to have satisfied that condition for the contribution year if the person gives the notice to the Chief Executive Medicare before the end of the period of 6 months starting on that payment day.
Note: A person to whom this subregulation applies for a contribution year is entitled to a refund of any UMP support payment paid by the person for that contribution year—see section 67 of the Act.
(2) In this regulation:
pre‑booked patient, in relation to a person, means a patient with whom the person has, before 1 May 2002, made an arrangement to provide professional services after that date.
21 UMP support payment exemption (salaried medical practitioners)
(1) For subsection 52(4) of the Act, a person is exempt from UMP support payment for a contribution year if:
(a) on 1 May 2002 the person was, and on the imposition day for the contribution year the person is, employed by a Commonwealth, State or Territory agency as a salaried medical practitioner; and
(b) the person’s medical income (if any) in respect of non‑employment related services rendered by, or on behalf of, the person was less than $5 000 for both:
(i) the financial year beginning on 1 July 2001; and
(ii) the financial year immediately before the contribution year; and
(c) on the imposition day for the contribution year the person is indemnified by a Commonwealth, State or Territory agency in relation to claims for compensation or damages against the person in relation to incidents that occurred in the contribution year in the course of, or in connection with, the practice of a medical profession by the person as a salaried medical practitioner, including professional services rendered by, or on behalf of, the person in respect of which all or a part of the income was paid to the employing agency; and
(d) before the payment day for that person for the contribution year, the person gives to the Chief Executive Medicare:
(i) a notice in writing from the agency that employed the person on 1 May 2002 stating that the person was employed by that agency as a salaried medical practitioner on that date; and
(ii) a notice in writing from the agency that employed the person on the imposition day for the contribution year stating that the person was employed by that agency as a salaried medical practitioner on that date; and
(iii) either:
(A) a notice in writing from the agency that indemnified the person on the imposition day for the contribution year stating that the person is indemnified by that agency in relation to claims for compensation or damages against the person in relation to incidents of the kind described in paragraph (c); or
(B) a notice in writing from the agency that employed the person on the imposition day for the contribution year stating that the person is indemnified by a Commonwealth, State or Territory agency in relation to claims for compensation or damages against the person in relation to incidents of the kind described in paragraph (c); and
(iv) a statement from the person to the effect that the person’s medical income (if any) in respect of non‑employment related services rendered by, or on behalf of, the person was less than $5 000 for both:
(A) the financial year beginning on 1 July 2001; and
(B) the financial year immediately before the contribution year.
(1A) A person who does not satisfy the conditions in subregulation (1) for a contribution year, only because the person has not given the documents required by paragraph (1)(d) to the Chief Executive Medicare before the payment day for that person for the contribution year, is taken to have satisfied that condition for the contribution year if the person gives the documents to the Chief Executive Medicare before the end of the period of 6 months starting on that payment day.
Note: A person to whom this subregulation applies for a contribution year is entitled to a refund of any UMP support payment paid by the person for that contribution year—see section 67 of the Act.
(2) In this regulation:
medical income has the meaning given by paragraph 52(3)(a) of the Act.
non‑employment related services, in relation to a person who is employed by a Commonwealth, State or Territory agency as a salaried medical practitioner, means professional services rendered by, or on behalf of, the person in respect of which none of the income is paid to the employing agency.
Note: Professional services rendered by, or on behalf of, a person in his or her capacity as a salaried medical practitioner, including services in respect of which all or a part of the income is paid to the employing agency, are not non‑employment related services for the purposes of this regulation.
22 UMP support payment exemption (persons with comprehensive retroactive cover provided by an MDO or insurer)
(1) For subsection 52(4) of the Act, a person who is a participating member of a participating MDO (the former medical indemnity provider) is exempt from UMP support payment for a contribution year (the first contribution year) and for each later contribution year if subregulation (2) or (3) applies to the person.
(2) This subregulation applies to a person if:
(a) on 30 June 2003 the person had, or before 1 July 2003 the person had made arrangements to have, an indemnity arrangement with an MDO under which the person is, or will be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the indemnity arrangement was or is made); and
(b) on 1 July 2004 the person had an insurance contract or contracts with one or more insurers (a current medical indemnity provider) under which the person is, and will continue to be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the insurance contract or contracts were entered into); and
(c) before the payment day for that person for the first contribution year, the person gives to the Chief Executive Medicare, in writing:
(i) a statement from the former medical indemnity provider to the effect that the former medical indemnity provider would not be able, in the ordinary course of its business, to indemnify the person in relation to any claims against or by the person in relation to past incidents; and
(ii) a statement from the MDO to the effect that on 30 June 2003 the person had, or before 1 July 2003 the person had made arrangements to have, an indemnity arrangement with the MDO under which the person is, or will be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the indemnity arrangement was or is made); and
(iii) a statement from each current medical indemnity provider to the effect that on 1 July 2004 the person had an insurance contract or contracts with the provider under which the person is, and will continue to be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the insurance contract or contracts were entered into).
(3) This subregulation applies to a person if:
(a) on 30 June 2003 the person had, or before 1 July 2003 the person had made arrangements to have, an insurance contract or contracts with one or more insurers (a current medical indemnity provider) under which the person is or will be, and will continue to be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the insurance contract or contracts were or are entered into); and
(b) before the payment day for that person for the first contribution year, the person gives to the Chief Executive Medicare, in writing:
(i) a statement from the former medical indemnity provider to the effect that the former medical indemnity provider would not be able, in the ordinary course of its business, to indemnify the person in relation to any claims against or by the person in relation to past incidents; and
(ii) a statement from each current medical indemnity provider to the effect that on 30 June 2003 the person had, or before 1 July 2003 the person had made arrangements to have, an insurance contract or contracts with the provider under which the person is, or will be, and will continue to be, indemnified in relation to claims against or by the person in relation to all past incidents, without any further premium payments by the person (other than any payment agreed between the person and the provider at the time the insurance contract or contracts were or are entered into).
(3A) A person who does not satisfy the conditions in subregulation (2) or (3), only because the person has not given the statements required by paragraph (2)(c) or paragraph (3)(b), as the case requires, to the Chief Executive Medicare before the payment day for that person for the first contribution year, is taken to have satisfied that condition if the person gives the statements to the Chief Executive Medicare before the end of the period of 6 months starting on that payment day.
Note: A person to whom this subregulation applies is entitled to a refund of any UMP support payment paid by the person for the first contribution year or any later contribution year—see section 67 of the Act.
(4) In this regulation:
past incident, for a person, means an incident that:
(a) occurred in the course of, or in connection with, the practice of a medical profession by the person; and
(b) is covered by the IBNR indemnity scheme; and
(c) was covered by the former medical indemnity provider.
Note: The purpose of this regulation is to exempt from UMP support payment generally medical practitioners and health professionals who, before 1 July 2003, had obtained, or, in certain cases, had made arrangements to obtain, comprehensive retroactive medical indemnity cover from an MDO or an insurer, provided that, before 1 July 2004, the arrangement for the cover is in the form of an insurance contract or contracts with one or more insurers.
23 UMP support payment exemption (persons indemnified by a Commonwealth, State or Territory agency in relation to all past incidents)
(1) For subsection 52(4) of the Act, a person who is a participating member of a participating MDO (the former medical indemnity provider) is exempt from UMP support payment for a contribution year (the first contribution year) and for each later contribution year if:
(a) on 30 June 2003 the person was, and after that date the person will continue to be, indemnified by a Commonwealth, State or Territory agency in relation to claims against or by the person in relation to all past incidents; and
(b) before the payment day for that person for the first contribution year, the person gives to the Chief Executive Medicare, in writing:
(i) a statement from the former medical indemnity provider to the effect that the former medical indemnity provider would not be able, in the ordinary course of its business, to indemnify the person in relation to any claims against or by the person in relation to past incidents; and
(ii) a statement from the Commonwealth, State or Territory agency to the effect that on 30 June 2003 the person was, and after that date the person will continue to be, indemnified by that agency in relation to claims against or by the person in relation to all past incidents.
(1A) A person who does not satisfy the conditions in subregulation (1), only because the person has not given the statements required by paragraph (1)(b) to the Chief Executive Medicare before the payment day for that person for the first contribution year, is taken to have satisfied that condition if the person gives the statements to the Chief Executive Medicare before the end of the period of 6 months starting on that payment day.
Note: A person to whom this subregulation applies is entitled to a refund of any UMP support payment paid by the person for the first contribution year or any later contribution year—see section 67 of the Act.
(2) In this regulation:
past incident has the meaning given by subregulation 22(4).
24 UMP support payment exemption (persons who are 65 or more)
(1) For subsection 52(4) of the Act, a person is exempt from UMP support payment for a contribution year if:
(a) the person turned 65 before the beginning of the contribution year or will turn 65 in that year; and
(b) before the payment day for that person for the contribution year, the person gives to the Chief Executive Medicare:
(i) a statutory declaration stating the date the person turned, or will turn, 65; or
(ii) a certified copy of the person’s birth certificate.
(2) A person who does not satisfy the conditions in subregulation (1) for a contribution year, only because the person has not given the document required by paragraph (1)(b) to the Chief Executive Medicare before the payment day for that person for the contribution year, is taken to have satisfied that condition for the contribution year if the person gives the document to the Chief Executive Medicare before the end of the period of 6 months starting on that payment day.
Note: A person to whom this subregulation applies for a contribution year is entitled to a refund of any UMP support payment paid by the person for that contribution year—see section 67 of the Act.
25 UMP support payment exemption (persons with a disability)
For subsection 52(4) of the Act, a person is exempt from UMP support payment for a contribution year if:
(a) the person has at the beginning of the contribution year, or develops during that year, a physical, intellectual, psychiatric or sensory impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables in Schedule 1B to the Social Security Act 1991; and
(c) the Chief Executive Medicare is satisfied that the person has a continuing inability to work in a medical profession because of the person’s impairment.
Note for paragraph (c) Medical profession includes a health care related vocation. Health care related vocation means a health care related vocation in relation to which there is at least one State or Territory under the law of which a person must be registered in order to practise.
Division 3.1A—Competitive advantage payment
25A Competitive advantage payment exemption
(1) For subsection 59C(1) of the Act, a person (the insurer) is exempt from competitive advantage payment if:
(a) the insurer has entered into a deed of agreement with the Commonwealth to pay, as a lump sum, an amount to the Commonwealth to redress the competitive advantage received by the insurer, or a participating MDO of the insurer, through participation in the IBNR indemnity scheme; and
(b) the insurer has paid to the Commonwealth the amount mentioned in paragraph (a) in accordance with the deed of agreement.
(2) In this regulation:
participating MDO has the same meaning as in section 3 of the Medical Indemnity (Competitive Advantage Payment) Act 2005.
Division 3.2—Administration
26 When UMP support payment must be paid
(1) For paragraph (b) of item 1 of the table in section 61 of the Act and subject to subregulations (2) and (3), the payment day, for UMP support payment for a contribution year that starts on or after 1 July 2003, is 1 September in the next contribution year.
(2) For paragraph (b) of item 1 of the table in section 61 of the Act, the payment day, for UMP support payment for a contribution year that starts on or after 1 July 2004, is 1 March in that year, for the class of participating members of United Medical Protection Limited that, on 1 November in that year, have medical indemnity cover provided by a contract of insurance with Australasian Medical Insurance Limited.
(3) For paragraph (b) of item 1 of the table in section 61 of the Act, the payment day, for UMP support payment for the contribution year that started on 1 July 2003, is 28 February 2005 for the class of participating members of United Medical Protection Limited each of whom, on 31 May 2004, had not received an invoice, or had received an invoice for an incorrect amount, from the Chief Executive Medicare for UMP support payment for that contribution year.
27 When run‑off cover support payment must be paid—AMIL
For paragraph (b) of item 2 of the table in section 61 of the Act, the payment day, for run‑off cover support payment that Australasian Medical Insurance Limited is liable to pay for the contribution years beginning on 1 January 2005, 1 January 2006, 1 January 2007 and 1 January 2008, is 31 December in the contribution year to which the payment relates.
28 Medical indemnity payment—late payment penalty rate
For paragraph 65(2)(a) of the Act, the rate of 0.03227397% per day is prescribed.
Note: The rate prescribed by this regulation is the general interest charge rate set by the Australian Taxation Office as at 15 August 2003.
29 Methods of paying certain amounts
(1) Subject to subregulation (2), for subsection 66(4) of the Act, an amount referred to in subsection 66(1), (2) or (3) of the Act must be paid by one of the following methods:
(a) BPay;
(b) direct debit;
(c) cheque;
(d) credit card.
(2) If an amount referred to in subsection 66(1) of the Act is to be paid by instalments in accordance with a notice issued under subsection 63(3) of the Act, the amount must be paid as follows:
(a) if each instalment is to be paid every 3 months or less frequently—by one of the following methods:
(i) BPay;
(ii) direct debit;
(iii) credit card;
(b) if each instalment is to be paid more frequently than every 3 months—by direct debit.
Division Division 2.2 - Medical Indemnity Regulations 2003 - High cost claim indemnity scheme | Zoe