Section 51 xxiiiA of the Commonwealth Constitution prevents the government from compelling doctors to become its employees, but not much else.
Contrary to social media posts and comments from some doctors, incentive payments – no matter how large – are extremely unlikely to constitute civil conscription under the Australian Constitution.
The rumour that the new bulk billing practice incentive payment, dubbed ‘big big PIP’, is tantamount to civil conscription has come up multiple times since the policy was first announced in February.
Under the new program, which kicks in from November, practices where all doctors who bulk bill 100% of GP non-referred attendance items will receive an extra 12.5% on top of their MBS billings.
In order to participate, practices must register with voluntary patient enrolment scheme MyMedicare.
The big, big PIP sits alongside other reforms, which include expanded access to the bulk-billing incentive rebate.
Like all good rumours, there is a grain of truth to the idea that certain health reforms would not be allowed under our constitution.
Section 51 xxiiiA of the Commonwealth of Australia Constitution Act does indeed state that the federal government has the power to make laws relating to medical and dental services “but not so as to authorise any form of civil conscription”.
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The clause came about following the introduction of the Pharmaceutical Benefits Scheme in the mid-1940s, which set off a chain of events that led to the government amending the Constitution to create broad social services powers that specifically named medical and dental services as an area about which it could make laws.
Originally, it did not contain anything about civil conscription.
This was added at the insistence of federal opposition leader Robert Menzies, who objected to the idea of a nationalised health service.
At the same time that the clause was being debated, the United Kingdom was in the process of setting up the National Health Service.
The British Medical Association – the peak body for doctors in Australia at that time – had vehemently opposed the creation of the NHS, and reportedly lobbied Mr Menzies to prevent a similar scheme in Australia.
There have since been several High Court cases which have shaped the interpretation of the clause in various ways.
One of the more relevant of these cases was Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 in 2009, when the majority held that, though there may be a compulsion to participate in Medicare, there was no compulsion to provide a particular service or work for the Commonwealth.
Another case held that Medicare payments were payments to patients, and therefore did not create a contract between the doctor and Commonwealth.
In yet another case, Alexandra Private Geriatric Hospital Pty Ltd v the Commonwealth, the High Court noted that a health professional voluntarily decides to participate in a Commonwealth funding arrangement where the conditions of the funding arrangements bind them does not constitute civil conscription.
At the end of the day, health economist Enterprise Professor Stephen Duckett told The Medical Republic, Section 51 xxiiiA of the Constitution basically prohibits the government from compelling doctors into becoming employees.
“Incentives, by the very word, are not compulsion,” he said.
“Anyway, the medical profession is saying loud and clear, ‘oh, we’re not going to [take up the incentives’, which suggests that they understand that it doesn’t involve compulsion.”
The argument that Medicare reforms could violate the Constitution, he said, has “absolutely no basis in law” and has been used for decades to intimidate policy makers.
“There is nothing in what the government is doing that forces anybody to do anything, either patients or providers,” Professor Duckett said.
“Not only that, but it doesn’t give them a forced [or] … mafia-type choice.”
