The health minister, Mark Butler, says he is “determined” to make specialist fees his government’s second-term priority.
After a first term prioritising general practice bulk-billing rates, Butler told ABC Melbourne he will be focusing on the fees charged by non-GP specialists “because they are, frankly - I don’t use these words lightly - in some areas getting out of control”.
It comes after Guardian Australia’s series highlighted specialist care is a “system without guardrails”, with limited access to public hospital clinics pushing those who cannot afford it into the private system, where there is huge fee variation.
In March, Butler committed to more transparency on medical fees and this month has indicated the government will explore other options, including to “potentially control fees” themselves.
So why haven’t governments regulated them in the past? And how could they fix specialist fees now?
What has the government committed to doing?
Butler has committed to publish individual specialists’ average fees to allow patients to see what specialists in their area are charging and shop around.
The government already has access to this information, but needs to pass a law in parliament to be able to make it public on the Medical Costs Finder website.
The former Coalition government introduced the website in 2019 asking specialists to volunteer to display their fees, but only 70 did so.
“Everyone else is still keeping it secret. We’re going to publish them for them,” Butler says.
But what about the fees themselves?
Experts have pointed out that providing cost information alone isn’t enough.
The Grattan Institute recommends the government also train more doctors, creating national targets to train specialists where they are most needed and tying funding to meeting those targets.
They say the government also needs to rein in excessive fees (charged by less than 4% of specialists) by requiring them to repay the government the value of the Medicare rebate.
Butler has said the government is “going to look at … options to potentially control fees”.
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Earlier this year, he consulted with doctor’s groups – including the peak medical body, the Australian Medical Association (AMA) – as well as patient groups.
“I said to them, from my point of view, all options were on the table,” Butler said.
However, he acknowledged a barrier to reform could be “restrictions in the constitution on what we can do, what we can force doctors to do”.
Why haven’t governments regulated them in the past?
Luke Beck, a professor of constitutional law at Monash University, explains Butler is likely referring to Section 51(xxiiiA), which was added to the constitution through the 1946 Social Services Referendum.
“The provision is intended to allow the commonwealth to fund various social services schemes. Before then there were federal payments like unemployment benefits, child endowment and widow’s pensions – but there was no proper constitutional basis for them.
“The new provision fixed that gap in constitutional power and is now the basis for things like Medicare, the Pharmaceutical Benefits Scheme and the various payments available through Centrelink,” Beck says.
It includes the power to make laws providing for “medical and dental services (but not so as to authorise any form of civil conscription)”.
Prof Brendan Murphy, the former chief medical officer, says the intention was that the commonwealth government could not direct doctors to work in various parts of the country, but the power has been interpreted to include the regulation of fees.
A paper published in the federal law review in 2023 found “section 51(xxiiiA) probably does not inhibit politically feasible policy options to improve medical services in Australia”.
Beck says based on a 2009 case, “setting conditions on specialists receiving Medicare payments would seem to be one mechanism available to the federal government to bring down specialist fees”.
How have doctor groups reacted?
Assistant Prof Sanjay Jeganathan, the chair of the Council of Presidents of Medical Colleges – the umbrella body for the 16 specialist colleges – says they “entirely support” improving patients’ access to specialist care.
“Because when people are suffering gaining access to seeing a specialist in a timely manner, and that is costing an arm and a leg for some patients, that is not acceptable. Every person in Australia should be able to access affordable, high-quality specialist care,” Jeganathan says.
Issues need to be addressed including fee transparency and the fact that “in many parts of the country, there aren’t any existing outpatient clinics in public hospitals”.
Dr Danielle McMullen, the president of the AMA, said “blaming doctors for decades of Medicare neglect and hospital underfunding isn’t the answer”.
While the AMA does not support “egregious” billing, McMullen said Australians should be asking why Medicare rebates are not keeping pace with cost of care and hospitals are failing to provide adequate outpatient services.
