tag:theconversation.com,2011:/fr/topics/medicare-benefits-scheme-15999/articlesMedicare Benefits Scheme – The Conversation2017-05-09T10:57:01Ztag:theconversation.com,2011:article/773152017-05-09T10:57:01Z2017-05-09T10:57:01ZBudget 2017 sees Medicare rebate freeze slowly lifted and more funding for the NDIS: experts respond<figure><img src="https://images.theconversation.com/files/168539/original/file-20170509-11018-1upkul9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The future of the NDIS is seemingly secured in this federal budget.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p><em>As expected, the government has announced a progressive lifting of the Medicare rebate freeze. Together with removing the bulk-billing incentive for diagnostic imaging and pathology services, as well as an increase in the PBS co-payment and related changes, this will cost a total of A$2.2 billion over the forward estimates.</em></p>
<p><em>Other announcements include:</em></p>
<ul>
<li> <em>From July 1, 2019, an increase in the Medicare levy from 2% to 2.5% of taxable income, with the extra half a percent directed towards the NDIS</em></li>
<li><em>$1.2 billion for new and amended listings on the PBS, including more than $510 million for a new medicine for patients with chronic heart failure</em></li>
<li><em>a A$2.8 billion increase in hospitals funding over forward estimates</em></li>
<li><em>$115 million for mental health, including funding for rural telehealth psychological services, mental health research and suicide prevention</em></li>
<li><em>$1.4 billion for health research, including $65.9 million this year to help research into children’s cancer.</em></li>
</ul>
<p><em>All up, these commitments equate to A$10 billion.</em></p>
<h2>Medicare rebate freeze</h2>
<p><strong>Stephen Duckett, Health Program Director, Grattan Institute</strong></p>
<p>As foreshadowed in pre-budget leaks, the government is <a href="http://www.budget.gov.au/2017-18/content/glossies/overview/html/overview-07.htm">slowly unthawing the Medicare rebate freeze</a>, but at a snail’s pace. At a cost of A$1 billion over the forward estimates, indexation for Medicare items will be introduced in four stages, starting with bulk-billing incentives from July 1, 2017. </p>
<p>General practitioners and specialists will wait another year – until July 1, 2018 – for indexation to start up again for consultations, which make up the vast bulk of general practice revenue. Indexation for specialist and allied health consultations is slated to start from July 1, 2019. </p>
<p>Certain diagnostic imaging items (such as x-rays) will be the last cab off the rank. Indexation will start up again from July 1, 2020.</p>
<p>There is no mention of reintroducing indexation for pathology items. This may be due to the recognition that <a href="https://theconversation.com/blood-money-pathology-cuts-can-reduce-spending-without-compromising-health-54834">there is money to be saved in pathology</a>.</p>
<p>Regardless of the reaction of medical lobby groups, it is too early to tell whether this glacially slow reintroduction of indexation will be enough to keep bulk-billing rates at their current levels. Practice costs and income expectations of staff have not increased dramatically over the freeze period as the Consumer Price Index has been moving slowly. But each additional day of a freeze means costs and revenues fall further out of alignment.</p>
<p>The jury will be out for a while on whether reintroduction of indexation is enough to restore the Coalition’s tarnished Medicare credentials with voters. </p>
<p>Certainly, the slow phase-in may attract cynicism, with a legitimate perception the government is doing the minimum necessary and at the slowest pace to ensure the issue is off the agenda before a 2019 election.</p>
<p>There is no sign in the budget that the government has sought any trade-offs from the medical profession in exchange for the reintroduction of indexation, so we will have to wait to put in place <a href="https://theconversation.com/money-given-to-gps-from-ending-the-medicare-rebate-freeze-should-target-reform-76778">better foundations for primary care reform</a>.</p>
<h2>National Disability Insurance Scheme (NDIS)</h2>
<p><strong>Helen Dickinson, Associate Professor, Public Service Research Group, UNSW</strong></p>
<p>Since its inception, a number of bitter political battles have been fought over <a href="http://www.skynews.com.au/news/feature-2/2017/05/09/budget-to-fund-ndis-beyond-2019.html">how the National Disability Insurance Scheme should</a> be funded. Many have been nervous the current Productivity Commission <a href="http://www.pc.gov.au/inquiries/current/ndis-costs#draft">review</a> of the costs of the scheme could lead to a scaling back of the NDIS before it is fully operational.</p>
<p>The NDIS operates under a complex funding arrangement split between federal, state and territory governments. Until now it has been unclear where the federal component of this commitment will come from, and a significant gap was emerging from the middle of 2019.</p>
<p>Today’s budget <a href="http://www.budget.gov.au/2017-18/content/glossies/overview/html/overview-09.htm">promises to fill this funding gap</a>, in part through an increase by half a percentage point in the Medicare levy from 2% to 2.5% of taxable income. Of the revenue raised, one-fifth will be directed into the NDIS Savings Fund (a special account that will ensure federal cost commitments are met).</p>
<p>A commitment has also been made to provide funding to establish an independent NDIS quality and safeguards commission to oversee the delivery of quality and safe services for all NDIS participants. </p>
<p>This will have three core functions: regulation and registration of providers; complaints handling; and reviewing and reporting on restrictive practices. While such an agency will be welcomed by many, the devil will be in the detail as to whether it is possible to deliver this in practice.</p>
<h2>Generic Medicines</h2>
<p><strong>Chris Del Mar, Professor of Public Health, Bond University</strong></p>
<p>The government is <a href="http://www.budget.gov.au/2017-18/content/glossies/overview/html/overview-08.htm">set to save A$1.8 billion</a> over five years by extending or increasing the price reduction for medicines listed on the Pharmaceutical Benefits Scheme (PBS). </p>
<p>This will be achieved in part by encouraging doctors to prescribe generic medicines that name the active ingredient (as in “90 octane petrol”) rather than the brand name (as in “BP” or “Shell”). This has the effect of pharmaceutical companies selling the drug that is cheapest. </p>
<p>It doesn’t work for drugs still under patent (which allows only pharmaceutical companies holding the patent to negotiate a price, compensating them for the drug development costs). But when drugs come off patent, any other pharmaceutical company can manufacture the generic drug for the best price. </p>
<p>Some doctors worry different brands might have different effects, but there are very few examples of patients being harmed by this. Australia’s Therapeutic Drugs Administration (TGA) makes sure drugs are manufactured to tight standards. </p>
<p>However, many patients know their medications by the brand name rather than the generic name. This same problem can happen right now (when patients are prescribed the same drug with two or more different names when they are prescribed by GPs, hospitals, or specialists). </p>
<p>Doctors are already alert to ensuring that different drugs names do not confuse patients – the danger is that they take the same drug twice, thinking they are different drugs.</p>
<h2>Aged care</h2>
<p><strong>Michael Woods, Professor of Health Economics, University of Technology Sydney</strong></p>
<p>The government has held the line on restraining growth in funding to residential aged care providers in this budget by implementing its pre-announced indexation freeze for the year, and a partial freeze in 2018-19. </p>
<p>The freeze was in response to concerns some providers were wrongly over-claiming payments under the Aged Care Funding Instrument (ACFI). The instrument determines the level of funding the government pays to providers to care for their residents. </p>
<p>The government has stopped publishing its annual target number of ACFI audits, so any proposed changes in compliance activity are now unknown.</p>
<p>The long-awaited consolidation of the Home Care Packages (which aim to help ageing Australians remain at home for as long as they need) and entry-level support through the Commonwealth Home Support Program has been put off for another two years, until at least 2020-21. This will be disappointing to consumers as a more seamless set of support services will improve their ability to remain in the community.</p>
<p>A welcome initiative is the additional A$8.3 million for more home-based palliative care services, although this extra support is budgeted to end in 2019-20.</p>
<p>Overall, the biggest unanswered issue facing the government in aged care is the need to develop an evidence-based and sustainable funding regime for residential care. To date we have seen short-term budget fixes and the commissioning of opaque rushed research reports. </p>
<p>The health minister needs to step back and establish a proper policy review process that undertakes sound research and consults widely. The review needs to establish a set of core funding principles and model options that address the varying incentives of residents, providers and taxpayers. It needs to adopt the one that transparently empowers consumers, provides market competition and results in long-term sustainability and certainty.</p>
<h2>An inequitable budget</h2>
<p><strong>Elizabeth Savage, Professor of Health Economics, University of Technology Sydney</strong></p>
<p>The budget has increased the Medicare levy (from 2.0% to 2.5%). It also has removed of the 2% budget repair levy, which benefits individuals with taxable incomes above A$180,000. </p>
<p>In 2014-15, only 3% of taxpayers had taxable incomes above $180,000. By contrast, the Medicare levy increase affects almost all taxpayers. This is a tax increase designed to generate revenue to fund the NDIS. The Medicare levy is essentially a flat tax, except for those at the lowest end of the distribution of taxable income.</p>
<p>Revenue could have been raised more equitably by increasing marginal income tax rates for higher earners (including making the budget repair levy permanent) or lowering upper tax thresholds. </p>
<p><strong>What’s missing from the budget?</strong></p>
<p>The 30% <a href="https://theconversation.com/the-multi-billion-dollar-subsidy-for-private-health-insurance-isnt-worth-it-76446">subsidy for private health insurance</a> was introduced in 1999, and cost the budget A$2.1 billion in 2000-01. This cost has grown steadily and was estimated in the 2016-17 budget to be about A$7 billion for 2017-18. Despite high population coverage, consumers question whether private health insurance provides value for money.</p>
<p>There is abundant evidence the subsidy is an ineffective and costly policy, but it seems the politics keep reform of the subsidy in the too-hard basket.</p>
<p>From the budget speech and budget papers, it is not clear that there is any reform of the pricing of prostheses for private hospital patients. The Prostheses Listing Authority, the government regulator, sets minimum benefits for prostheses for private hospital inpatients. </p>
<p>The levels set are far higher than both prices in comparable overseas countries and those paid by public sector hospitals in Australia. Private hospitals are major beneficiaries when the regulated minimum benefits exceed the negotiated prices paid to suppliers. </p>
<p>Private health insurance premium increases are being driven by hospital benefits, of which 14.4% are for prostheses. In 2015, insurers paid out almost A$2 billion in hospital benefits for prostheses.</p>
<p>The previous health minister, Sussan Ley, raised prostheses reform as a priority, noting that insurers pay $26,000 more for a specific pacemaker for a private patient than a public patient ($43,000 compared with $17,000). It appears from early documentation that this problem has not been prioritised in this budget.</p><img src="https://counter.theconversation.com/content/77315/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Grattan Institute began with contributions to its endowment of $15 million from each of the Federal and Victorian Governments. In order to safeguard its independence, Grattan Institute’s board controls this endowment. The funds are invested and Grattan uses the income to pursue its activities.</span></em></p><p class="fine-print"><em><span>Elizabeth Savage has received research funding from the Australian Research Council and the National Health and Medical Research Council. She has also undertaken commissioned research for the Australian Department of Health and Ageing.</span></em></p><p class="fine-print"><em><span>Chris Del Mar, Helen Dickinson, and Michael Woods do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Health announcements in the federal budget include a slow lifting of the Medicare rebate freeze, money for new medicines, and an increase in the Medicare levy to fund the NDIS.Stephen Duckett, Director, Health Program, Grattan InstituteChris Del Mar, Professor of Public Health, Bond UniversityElizabeth Savage, Professor of Health Economics, University of Technology SydneyHelen Dickinson, Associate Professor, Public Service Research Group, UNSW SydneyMichael Woods, Professor of Health Economics, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/653362016-10-04T23:44:21Z2016-10-04T23:44:21ZFactCheck: Is suicide one of the leading causes of maternal death in Australia?<figure><img src="https://images.theconversation.com/files/140227/original/image-20161004-20213-o9fhmq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Suicide is uncommon during pregnancy -- it occurs more frequently when a pregnancy is over.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/mikel450/7544423608/in/photolist-cuF9i7-rQVijN-6eunts-kAQebc-hfoPc3-8uW4Ee-3wd6ZE-3GSarN-6KUZPG-8dbGLR-npGxaH-79TMC2-9w296Q-aM9d4R-q6L74n-aKH57z-9k2sRG-qQFizY-9G1H4N-ahjewq-3aqnNy-4ZETCg-akNWYh-M9sRY-34wTCm-deFesQ-6ShhSr-oMnyps-M9Ae6-M9sQE-3aqnpj-owUwSb-M9tVb-47gCiJ-3ESukT-6XmKNK-3akRov-6qnV3k-3akQLr-aM9fF8-emcipD-M9u1C-j4wBu-hpsHQ1-M9sSU-6uZESC-2V17Zw-3aqnrd-doDzxQ-h5rET3">Mikel Garcia Idiakez/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><blockquote>
<p>The Committee notes that … suicide has become one of the leading causes of maternal death in Australia. – The Obstetrics Clinical Committee, <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/24913E0474E75768CA2580180016A033/$File/MBS-Obstetrics.pdf">report</a> to the <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/MBSReviewTaskforce">Medicare Benefits Schedule Review</a>, August 2016.</p>
</blockquote>
<p>The federal government’s <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/MBSReviewTaskforce">Medicare Benefits Schedule review</a> is well underway. Teams of clinicians are looking at more than 5,700 items on the Medicare Benefits Schedule (MBS) to see if health services are up to date and in line with the latest clinical evidence.</p>
<p>In its <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/24913E0474E75768CA2580180016A033/$File/MBS-Obstetrics.pdf">report</a> for the review, the Obstetrics Clinical Committee called for changes aimed at ensuring more women were screened for perinatal (meaning the period just before and after birth) anxiety and depression by suitably qualified health professionals.</p>
<p>The committee said suicide has become one of the leading causes of maternal death in Australia.</p>
<p>Is that right?</p>
<h2>Checking the source</h2>
<p>Obstetrics is the branch of medicine and surgery that specialises in the care of women before, during and after childbirth. The <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/MBSR-committees-obstetrics">Obstetrics Clinical Committee</a> is a group of 11 experts commissioned by the federal government to review the obstetrics items on the MBS and report on their findings.</p>
<p>When asked for data to support the assertion, the committee’s chair Professor Michael Permezel referred The Conversation to the Australian Institute of Health and Welfare report <a href="http://www.aihw.gov.au/publication-detail/?id=60129551119">Maternal deaths in Australia 2008-2012</a>.</p>
<h2>Is suicide a leading cause of maternal death?</h2>
<p>Yes. The <a href="http://www.aihw.gov.au/">Australian Institute of Health and Welfare (AIHW)</a> produces the best data on this question. </p>
<p>Its latest <a href="http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129551117">report</a> on the issue, which was the one the committee cited, was released in 2015 and covers the years 2008 to 2012. It shows that suicide is one of the leading causes of maternal death in Australia. If late maternal deaths are included, it is the leading cause.</p>
<p>When we’re talking about this issue, it’s important to distinguish between “maternal death” and “late maternal death”:</p>
<ul>
<li>Maternal death is when a woman dies in pregnancy or within 42 days after the end of any pregnancy</li>
<li>Late maternal death is when a woman dies within 12 months of the end of any pregnancy.</li>
</ul>
<p>In Queensland, suicide is <a href="https://www.health.qld.gov.au/improvement/networks/docs/qmpqc-report-2015-full.pdf">the leading cause of death</a> for women during pregnancy and within 12 months of the end of a pregnancy. Suicide was <a href="http://www.hqsc.govt.nz/assets/PMMRC/Publications/tenth-annual-report-FINAL-NS-Jun-2016.pdf">the leading cause of maternal death</a> in New Zealand between 2006 and 2013, and remains a leading cause today.</p>
<p>Suicide is uncommon during pregnancy – it occurs more frequently when a pregnancy is over. Recent investigations have revealed a high proportion of late maternal deaths are linked to preexisting mental health disorders and what clinicians call “psychosocial distress”. Psychosocial distress is a broad term that covers depression, stress and dissatisfaction with life.</p>
<p>There are standard definitions used worldwide to describe the type, or category, of maternal death: </p>
<ul>
<li>Direct deaths – those directly attributable to the pregnancy, for example, post-partum bleeding</li>
<li>Indirect deaths – when preexisting conditions, such as heart disease, are exacerbated by pregnancy</li>
<li>Incidental deaths – are not usually related to pregnancy, for example, accidents.</li>
</ul>
<p>Suicide, homicide and deaths related to mental health, such as accidental overdose, are described as being due to “psychosocial causes”. </p>
<p>The <a href="http://www.who.int/en/">World Health Organization</a> <a href="http://www.who.int/bulletin/volumes/87/10/09-071001/en/">recently recommended</a> that deaths from psychosocial causes be categorised as “direct deaths” – directly attributable to the pregnancy. This recommendation has not yet been widely adopted. </p>
<p>In Australia, death by suicide is usually categorised as an “indirect” death if there is evidence the mother had a preexisting mental health condition.</p>
<p>Some international reports continue to class deaths by suicide and other psychosocial causes as “incidental” – not related to pregnancy. This means they don’t count towards the maternal mortality ratio, which is the international measure of the number of women dying during pregnancy or within 42 days of a pregnancy ending. </p>
<h2>How many deaths are we talking about?</h2>
<p>The latest AIHW <a href="http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129551117">report</a> on the issue notes:</p>
<blockquote>
<p>Maternal death in Australia is a rare event in the context of worldwide maternal deaths. In 2008–2012, there were 105 maternal deaths in Australia that occurred within 42 days of the end of pregnancy, representing a maternal mortality ratio (MMR) of 7.1 deaths per 100,000 women who gave birth.</p>
</blockquote>
<p>The AIHW data show there were 16 deaths in the psychosocial causes category, of which 12 were due to suicide. Death by psychosocial causes ranked equal first with heart disease. Death by suicide ranked equal second with sepsis, obstetric haemorrhage and non-obstetric haemorrhage.</p>
<p>Australian state and territory data also show suicide to be a prominent feature in maternal death. The <a href="https://www.health.qld.gov.au/improvement/networks/docs/qmpqc-report-2015-full.pdf">latest report</a> by the <a href="https://www.health.qld.gov.au/improvement/networks/qmpqc.asp">Queensland Maternal and Perinatal Quality Council</a> reported on 40 maternal deaths – including late maternal deaths – over 2013 and 2014.</p>
<p>Out of these 40 deaths, 12 (28%) were due to psychosocial causes – making it the largest category. Overall, suicide was the leading cause of maternal death in Queensland in 2013-14.</p>
<p>The <a href="http://www.hqsc.govt.nz/assets/PMMRC/Publications/tenth-annual-report-FINAL-NS-Jun-2016.pdf">most recent report</a> from New Zealand shows a similar picture. Between 2006 and 2013, 24% of maternal deaths were due to suicide. That’s 22 women out of 90 who died by suicide during pregnancy or within 42 days of their pregnancy ending.</p>
<h2>What don’t we know?</h2>
<p>What is unknown is the nature of the relationship between pregnancy and suicide. Not all pregnancies are diagnosed or recorded, especially if a woman is early on in her pregnancy when she dies by suicide. </p>
<p>Despite efforts to capture all deaths in pregnancy and in the postpartum period, experts still don’t know yet the full story. To gain a full understanding of the impact of pregnancy on suicide risk, we would need to compare the suicide rates for women who were or had recently been pregnant, and those who had not.</p>
<h2>Verdict</h2>
<p>The <a href="http://www.health.gov.au/internet/main/publishing.nsf/Content/MBSR-committees-obstetrics">Obstetrics Clinical Committee</a> was correct to say suicide is one of the leading causes of maternal death in Australia. If late maternal deaths are included in the analysis, it is the leading cause. <strong>– David Ellwood.</strong></p>
<hr>
<h2>Review</h2>
<p>I have reviewed this article and the author presents a fair and accurate view of the data.</p>
<p>Suicide has also been found to be a leading cause of maternal death in the <a href="http://onlinelibrary.wiley.com/store/10.1111/j.1471-0528.2010.02847.x/asset/j.1471-0528.2010.02847.x.pdf;jsessionid=3E32E4EC9E3834118E826600CD8E6AA5.f04t02?v=1&t=itnslmv2&s=3d1cb4776103d69bd1b539684185f1b6ed606c49">United Kingdom</a> and the <a href="https://www.ncbi.nlm.nih.gov/pubmed/22015873">United States</a>.</p>
<p>A paper my colleagues and I <a href="https://www.hindawi.com/journals/bmri/2013/623743/">published in 2013</a> showed that of the women who died by suicide and trauma in Australia between 2000 and 2006, 67% had a mental health condition, and/or a condition related to substance abuse.</p>
<p><a href="https://www.hindawi.com/journals/bmri/2013/623743/">We reported</a> a notable peak in deaths from suicide and trauma from nine to 12 months after the end of pregnancy when compared to deaths in the first three months after the end of a pregnancy. The World Health Organization wants to see more emphasis placed on this issue and clearer identification of deaths by suicide up to one year after the pregnancy ends.</p>
<p>We may be underestimating the numbers of late maternal deaths by suicide. If Australia follows the WHO recommendation to classify more deaths by suicide as directly attributable to pregnancy, we would likely see the numbers rise. <strong>– Hannah Dahlen</strong></p>
<hr>
<p><em>If this article has raised issues for you or if you’re concerned about someone you know, call <a href="https://www.lifeline.org.au/">Lifeline</a> on 13 11 14.</em></p>
<hr>
<p><div class="callout"> Have you ever seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.</div></p><img src="https://counter.theconversation.com/content/65336/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Ellwood is Chair of the Queensland Maternal and Perinatal Quality Council, and a member of the National Maternal and Mortality Advisory Group. He is Deputy Head of School (Research) at Griffith University School of Medicine and Director of Maternal-Fetal Medicine at Gold Coast University Hospital. </span></em></p><p class="fine-print"><em><span>Hannah Dahlen has received funding from the NHMRC and the ARC. She is the national spokesperson for the Australian College of Midwives.</span></em></p>The clinical committee reviewing obstetrics services for the federal government’s Medicare review said suicide is one of the leading causes of maternal death in Australia. Is that true?David Ellwood, Professor of Obstetrics & Gynaecology, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/397992015-04-09T20:40:50Z2015-04-09T20:40:50ZLeaked TPP investment chapter shows risks to Australia’s health<p>Amid ongoing speculation about the prospects for the Trans Pacific Partnership Agreement (TPP), Wikileaks published another confidential chapter last week, this time on investment. And like almost everything we know about the secretive negotiations for the agreement, the leaked chapter provides plenty of cause for concern.</p>
<p>The leaked <a href="https://wikileaks.org/tpp-investment/">late-stage draft of the investment chapter</a> contains information about the agreement’s investor-state dispute settlement (ISDS) clause. Clauses like this give investors direct access to international arbitration, where they can bring claims against a government over regulatory measures they think may damage their bottom line. </p>
<p>The chapter has a footnote saying Australia is exempt from ISDS, but that may change “subject to certain conditions”. The leaked draft doesn’t indicate the exact nature of these conditions, and the footnote remains in brackets, indicating the issue has not yet been settled.</p>
<p>The Minister for Trade and Investment, Andrew Robb, has repeatedly said the TPP will not adversely affect health policy. In a <a href="http://www.abc.net.au/news/2015-03-17/trans-pacific-partnership-details-will-be/6327068">recent interview</a> with ABC TV, he said the government had insisted on carveouts for health and environmental public policy decisions from investor-state dispute settlement clauses. </p>
<p>But the leaked draft shows these carveouts (which are still under negotiation) are limited to specific areas such as the Pharmaceutical Benefits Scheme, Medicare Benefits Scheme, Therapeutic Goods Administration and the Office of the Gene Technology Regulator. </p>
<h2>ISDS health concerns</h2>
<p>An independent <a href="http://hiaconnect.edu.au/research-and-publications/tpp_hia/">health impact assessment</a> of the TPP negotiations conducted by Australian academics and non-government organisations published in February 2015 found the ISDS clause presents a significant threat to health policy. </p>
<p>Part of the problem is that the TPP defines investments very broadly to include intangible assets and intellectual property, such as trademarks and patents. These kinds of assets are at the heart of current ISDS cases contesting <a href="http://www.italaw.com/cases/851">Australia’s plain packaging laws</a> and <a href="http://www.italaw.com/cases/1625">Canada’s decisions about what medicines can be patented</a>.</p>
<p>Such claims can result in large-scale costs for taxpayers. Not only do the awards for investor-state cases often amount to hundreds of millions of dollars, <a href="http://www.italaw.com/cases/1625">according to the OECD</a> the average cost of fighting a claim is US$8 million. </p>
<p>Another issue that has health advocates worried is the potential “chilling effect” of investor-state dispute settlement mechanisms; the prospect that governments may be deterred from implementing innovative health policies and laws that may be contested by corporations using ISDS clauses. </p>
<p>Director-General of the World Health Organization, Margaret Chan <a href="http://www.who.int/dg/speeches/2012/tobacco_20120320/en/">noted in 2012</a> that legal actions against Uruguay, Norway and Australia were “deliberately designed to instill fear” in countries trying to reduce smoking. <a href="http://www.nytimes.com/2013/12/13/health/tobacco-industry-tactics-limit-poorer-nations-smoking-laws.html?pagewanted=all&_r=3&">Uruguay has publicly acknowledged</a> that it would have had to drop its tobacco control law and settle with Philip Morris if it didn’t have financial support from a foundation set up by Michael Bloomberg.</p>
<h2>Protecting health?</h2>
<p>In addition to the carveouts for specific health programs, the TPP contains purported “safeguards” to protect health and the environment. But these safeguards have also drawn strong criticism, in particular, from eight health and community organisations who wrote to the trade minister last week to <a href="http://www.phaa.net.au/documents/150401%20Letter%20to%20Minister%20Robb%20re%20proposed%20investment%20chapter%20of%20the%20TPP.pdf">outline their concerns</a>.</p>
<p>One of the main concerns centres on the safeguard related to “indirect expropriation”. While Australian law protects against direct expropriation – the seizure of assets by government – the TPP goes further to include instances where a government’s actions have a negative impact on an investment, but do not result in a transfer of property to the state. </p>
<p>The broader scope of expropriation under ISDS in the <a href="http://www.legislation.gov.hk/IPPAAustraliae.PDF">Hong Kong - Australia bilateral investment treaty</a>, for instance, has enabled Philip Morris to contest Australia’s tobacco plain packaging through international arbitration even though <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hca43-2012-10-05.pdf">the High Court determined</a> that there had been no acquisition of property by the state under Australian law.</p>
<p>To safeguard against abuse of this provision, the TPP includes an annex that appears to exempt “non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment…”. But any protective effect intended by this clause may be undermined by the added phrase “…except in rare circumstances.”</p>
<p>This loophole, which invites corporations to argue that their circumstances are rare, is being used in a <a href="http://www.italaw.com/cases/2110">case against Costa Rica</a> over a national park established to protect the nesting grounds of the endangered giant leatherback sea turtle. Nine US investors lodged a dispute, seeking over US$36.5 million in compensation, when Costa Rica suspended development permits for beachfront land within the national park boundaries. The case has yet to be decided.</p>
<p>Another proposed exemption – this time for compulsory licenses – is also <a href="https://www.citizen.org/documents/tpp-investment-chapter-and-access-to-medicines.pdf">highly problematic</a>. Compulsory licences are important mechanisms for ensuring access to medicines, as they allow patents to be bypassed in circumstances such as public health emergencies. But the wording of the exemption in the TPP would allow corporations to argue a compulsory license is not compliant with World Trade Organization rules. Or with the intellectual property chapter of the TPP, which actually provides more expansive rights for corporations. This could create a situation where WTO rules could be interpreted and enforced outside the more flexible and accountable state-state dispute settlement mechanism of the WTO itself.</p>
<p>Other safeguards, such as the explicit link drawn between a clause promising investors “fair and equitable treatment” and customary international law (international obligations that arise from established state practice), <a href="https://www.iisd.org/itn/2013/03/22/a-distinction-without-a-difference-the-interpretation-of-fair-and-equitable-treatment-under-customary-international-law-by-investment-tribunals/">may also prove insufficient</a>. Such a safeguard was <a href="http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp">introduced by the parties to the North American Free Trade Agreement in 2001</a> but this did not prevent the tribunal in the recent <a href="http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/disp-diff/clayton-12.pdf">Clayton/Bilcon case</a> from finding that customary international law in this area has evolved over time in a manner that is more in line with the investor’s interpretation, than with that of Canada’s government. The tribunal has yet to make a decision on damages, but the company is seeking US$300 million. </p>
<p>The problems and loopholes characterising the latest leaked TPP draft throw doubt on the government’s claims that it’s taking the concerns of health stakeholders as seriously as the interests of big transnationals. And they highlight exactly why it’s vital for the draft text to be made public and subjected to independent scrutiny before it is signed. Indeed, it would be safer to exclude ISDS from the TPP altogether. </p>
<p>Minister Robb asks us to trust his assurances that Australian health policy will not be negatively affected by this trade agreement. But this latest leaked draft does little to inspire such trust.</p><img src="https://counter.theconversation.com/content/39799/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Gleeson receives funding from the Australian Research Council. She has received funding from various national and international non-government organisations to attend speaking engagements related to trade agreements and health, including the TPP. She has represented the Public Health Association of Australia on matters related to the TPP.</span></em></p><p class="fine-print"><em><span>Kyla Tienhaara receives funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Sharon Friel receives funding from the Australian Research Council and the National Health and Medical Research Council.</span></em></p>The latest part of the TPP to be leaked is its investment chapter. And like almost everything we know about the secretive negotiations for the agreement, it provides plenty of cause for concern.Deborah Gleeson, Lecturer in Public Health, La Trobe UniversityKyla Tienhaara, Research Fellow Regulatory Institutions Network (RegNet), Australian National UniversitySharon Friel, Director and Professor of Health Equity, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.