National Health (Eligible Midwives) Determination 2022

The Determination directly affects:

• Registered midwives who seek to be recognised as eligible midwives for the purpose of providing Medicare‑rebatable services, prescribing PBS medicines, or otherwise accessing benefits under Part VII of the Act.
• The Nursing and Midwifery Board of Australia, which administers the endorsement process and must assess each applicant against its registration standard for scheduled medicines endorsement.
• The Department of Health and Aged Care and Services Australia, which rely on the eligible midwife definition when determining provider eligibility and processing Medicare and PBS claims.
• State and territory health departments, because a midwife who holds the required endorsement still needs jurisdiction‑specific authorisation before lawfully engaging in scheduled medicine activities. The Determination’s existence highlights the need for coordination between the Commonwealth eligibility framework and local drugs and poisons regimes.
• Patients and consumers, who benefit from expanded access to midwifery care that includes prescribing, but who also rely on the system ensuring that midwives have proper qualifications and legal authority.

Professionals working in private midwifery practices, public hospitals, and telehealth services must all satisfy the endorsement requirement if their practice model depends on the eligible midwife status.

The Determination does not, by itself, create statutory duties for individuals. Instead, it establishes a prerequisite for acquiring a particular status under the Act. The principal operational consequences flow from the National Health Act and its associated schemes.

Right to be treated as an eligible midwife. A midwife who meets the endorsement requirement falls within the definition of “eligible midwife” for Part VII purposes. This permits the midwife to be enrolled as a provider for Medicare benefits in relation to services authorised under the Health Insurance Act 1973 and associated regulations, and to be recognised as a PBS prescriber under the National Health (Pharmaceutical Benefits) Regulations 2017 (or their successors).

No direct duty to obtain endorsement. A midwife is not obliged to obtain the endorsement. The Determination merely conditions the availability of the eligible midwife status; a midwife who chooses not to pursue the endorsement may continue to practise, but will not be able to access the specific Commonwealth benefits reserved for eligible midwives.

Separation of qualification and authority. The instrument clarifies in Note 3 that endorsement does not authorise the actual administration, supply or prescribing of scheduled medicines. The midwife must independently obtain the necessary authorisation under state or territory legislation. Failing to do so would render any prescribing or supply unlawful under local law, even if the midwife satisfies the eligibility condition under the Determination. Conversely, a midwife who holds a state authorisation but lacks the endorsement will not be an eligible midwife and cannot lawfully claim Medicare benefits for attendances that depend on that status.

The Determination contains no penalty provisions. Its function is definitional, so any enforcement mechanism operates through the broader legislative framework rather than through the Determination itself.

Consequences of non‑compliance. If a person provides services as an eligible midwife without holding the required endorsement, several legal risks arise:

• Medicare benefits paid for such services may be recoverable as debts due to the Commonwealth under the Health Insurance Act 1973.
• The person may have committed an offence under the National Health Act or the Criminal Code for making false or misleading statements in connection with a claim for a benefit.
• The Nursing and Midwifery Board may take disciplinary action against a registered midwife who claims to hold an endorsement they do not possess, as that conduct may amount to professional misconduct under the National Law.
• Services provided in breach of the definitional requirement may also be exposed to audit and compliance action by the Professional Services Review scheme.

While the Determination itself is silent on penalties, its effect as a mandatory condition means that practitioners and employers must treat compliance as a prerequisite for lawful activity under Commonwealth health financing laws.

The Determination sits at the intersection of several legislative frameworks.

National Health Act 1953. Section 84AAE of the Act defines “eligible midwife” and provides the regulation‑making power. Subsection (3) permits the Minister to determine requirements. This instrument is the sole determination currently in force for that purpose. The Act also contains other provisions relying on the eligible midwife concept, such as those governing pharmaceutical benefits.

Health Practitioner Regulation National Law. The Determination directly engages section 94 of the National Law (adopted in each state and territory). The endorsement it requires is governed entirely by the National Law and the registration standards made by the Nursing and Midwifery Board. The Board’s Registration standard: Endorsement for scheduled medicines sets out the qualifications, supervised practice and continuing professional development obligations a midwife must meet. Any change to that standard can affect a midwife’s ability to satisfy the Determination.

State and territory drugs and poisons legislation. As emphasised by Note 3, holding the endorsement under the National Law gives a midwife the qualification but not the legal authority to deal with scheduled medicines. Authority to prescribe, supply, possess or use a particular scheduled medicine must be granted under the relevant Drugs, Poisons and Controlled Substances Act (or equivalent) of the state or territory in which the midwife practises. A midwife who relies solely on the Determination and the national endorsement without obtaining local authorisation will be acting illegally.

Health Insurance Act 1973 and MBS. The Medicare Benefits Schedule includes items for services provided by eligible midwives. The Health Insurance Regulations 2018 tie eligibility for those items to the definition in the National Health Act. Thus, the Determination is a de facto gateway to MBS billing for midwives.

National Health (Pharmaceutical Benefits) Regulations. Prescribing authority under the PBS also turns on whether a practitioner is an eligible midwife. The Determination therefore affects which midwives can become approved prescribers for PBS purposes.

National Health Regulation 2016. The Determination adopts definitions from those Regulations, ensuring consistent statutory interpretation across the Act and subordinate instruments.

The National Health (Eligible Midwives) Determination 2022 repeals and replaces the National Health (Eligible midwives) Determination 2010 (Schedule 1). The instrument text does not set out a statement of reasons for the re‑making, and no specific policy shift is apparent on the face of the instrument. The requirement in section 6 mirrors the core requirement of the 2010 determination: the midwife must hold an endorsement under section 94 of the Health Practitioner Regulation National Law for scheduled medicines.

The 2022 version updates the legislative references to align with current drafting conventions and the current National Health Regulation 2016. The notes to section 6 have been expanded:

• Note 1 explicitly identifies the national board as the Nursing and Midwifery Board of Australia.
• Note 2 summarises the qualification and registration standard requirements for endorsement under section 94 of the National Law.
• Note 3 draws out the distinction between endorsement and authorisation, a point that was perhaps implicit but not as prominently stated in the earlier instrument.

The re‑making is best understood as a consolidation and clarification exercise. By restating the requirement in a contemporary format and providing interpretive notes, the delegate has reduced the risk of practitioners and administrators misunderstanding the scope and limits of the endorsement condition. As the National Law and the registration standard for scheduled medicines endorsement have evolved since 2010, the updated notes assist readers who may not be familiar with the detailed operation of the National Law.

The Determination itself has not been the subject of any reported court challenges. Its narrow, definitional character leaves little room for substantive dispute; the instrument merely attaches a consequence to a pre‑existing administrative process (national board endorsement).

Broader legal contests about the eligible midwife framework have occasionally arisen in relation to the scope of Medicare items and prescribing rights, but those controversies engage primary legislation and delegated instruments that depend on the eligible midwife definition rather than the Determination itself. No case name or citation is referenced in the Determination or otherwise known to have addressed the validity or interpretation of this instrument.

Endorsement alone is not enough. Because Note 3 makes plain that an endorsement does not carry operative legal authority, a midwife who obtains the endorsement but does not secure a state‑based authorisation to prescribe or supply scheduled medicines cannot lawfully perform those acts, even though they satisfy the Determination. Conversely, a midwife who has a state authorisation but neglects to obtain the national board endorsement will not be an eligible midwife for Commonwealth purposes and cannot validly claim Medicare benefits.

Qualification and registration standard requirements. An endorsement under section 94 of the National Law is not granted automatically upon registration as a midwife. The midwife must hold an approved qualification (or an equivalent) and comply with the Nursing and Midwifery Board’s Registration standard: Endorsement for scheduled medicines. That standard typically requires completion of an accredited program of study in prescribing and may include supervised practice. A midwife who assumes that general midwifery registration qualifies for endorsement will be unable to meet the Determination.

The Determination only adds one requirement. Section 84AAE of the Act already requires that an eligible midwife be a “midwife” (which itself imports the definition under the Act and the National Law). The Determination only augments that baseline. Practitioners must also satisfy any other requirements that the Act or regulations prescribe. For example, the Act may require the midwife to hold general registration without conditions that would prevent safe practice, and to meet any continuing professional development obligations set by the national board. The Determination does not replace those conditions.

Changes to state authorisation framework. The endorsement under the National Law is a precondition for eligibility, but the scope of what a midwife may actually do with scheduled medicines is determined by local law. If a state or territory introduces new restrictions on midwife prescribing or changes the schedule of medicines a midwife may access, the eligible midwife status under the Determination remains unaffected but the midwife’s practical authority may shrink or expand. Practitioners must monitor both the Commonwealth eligibility gate and the state authorisation gate separately.

Transitional considerations for existing endorsed midwives. Midwives who held an endorsement under the 2010 framework will not need to re‑apply simply because the Determination has been remade. The requirement concerns the current status of the registration, not the date on which the endorsement was obtained. However, any lapse or change to the endorsement will affect eligibility under the 2022 instrument immediately.

Interaction with telehealth and cross‑border practice. In a national telehealth model, a midwife providing services to a patient located in a different state must hold a state‑based authorisation that covers the location of the patient (depending on the relevant drugs legislation). The Commonwealth eligibility under the Determination says nothing about which jurisdiction’s authorisation applies; that remains a matter for each state and territory’s laws, which may have extra‑territorial or mutual recognition provisions.

A midwife seeking to rely on the Determination and operate as an eligible midwife should follow these steps:

1. Hold general registration as a midwife. Ensure that registration with the Nursing and Midwifery Board is current and unrestricted in any way that would affect safe practice. The Act’s baseline requirement is that the person be a “midwife”; the Determination does not waive that.

2. Complete the necessary education and training. Under the Board’s registration standard for scheduled medicines endorsement, the midwife must hold an approved qualification in scheduled medicines management. This is typically a graduate certificate or equivalent postgraduate program that covers pharmacology, prescribing practice, and legal responsibilities. Check the Board’s approved list of programs.

3. Apply for endorsement. Submit an application to the Nursing and Midwifery Board for endorsement under section 94 of the National Law. Provide evidence of the approved qualification and satisfy any additional requirements such as supervised practice or professional development. The Board will annotate the register of practitioners to show the endorsement.

4. Obtain state or territory authorisation. After endorsement is granted, approach the relevant state or territory health department to obtain the specific authorisation required to administer, prescribe, supply or use scheduled medicines. The process differs between jurisdictions; some require notification, others a separate application with conditions. This step is vital: without it, any dealing with scheduled medicines is unlawful.

5. Apply for a Medicare provider number and PBS prescriber status. With the endorsement and state authorisation in hand, the midwife can apply to Services Australia for recognition as an eligible midwife for Medicare and PBS purposes. The provider number application will require evidence of both the endorsement and the state authorisation.

6. Maintain the endorsement and authorisation. Both the national endorsement and the state authorisation come with ongoing obligations (e.g., continuing professional development, recency of practice, compliance with prescribing restrictions). A failure to maintain either will result in the loss of eligible midwife status and may affect the validity of claims already made.

7. Audit readiness. Keep clear records of the endorsement certificate, the state authorisation, and evidence of compliance with any conditions. The Department of Health or the Professional Services Review may request proof that the eligibility condition was satisfied at the time services were rendered. Records should align with the date each condition took effect.

By following these steps, a midwife can ensure they satisfy the single requirement determined by the National Health (Eligible Midwives) Determination 2022 and build a lawful, compliant practice that accesses the full suite of Commonwealth health benefits available to eligible midwives.