Skip to main content

Same-Sex: Same Entitlements: Chapter 11

Same-Sex: Same Entitlements Report


Chapter 11 Health

Care Costs

Download Chapter 11: [ PDF] [ Word ]

11.1 What

is this chapter about?

This chapter focuses on discrimination against

same-sex couples and their families in the context of access to the Medicare and

Pharmaceutical Benefits Scheme (PBS) Safety

Nets.

The Medicare and PBS Safety Nets are

designed to provide extra subsidies to people with high medical costs. Same-sex

couples and families miss out on these additional subsidies because the

legislation governing these two schemes – the Health Insurance Act

1973 (Cth) and National Health Act 1953 (Cth) – do not

recognise a same-sex couple as a genuine couple. The legislation also fails, in

certain circumstances, to recognise a same-sex couple with children as a family.

So while an opposite-sex couple can combine

their medical expenses (and the medical expenses of their children), to reach

the threshold amount, a same-sex couple cannot. This means a same-sex couple

will have to spend much more than an opposite-sex couple to qualify for the same

benefits.

The discrimination arises in the

definitions used in the legislation. The definition of ‘spouse’

excludes a person in a same-sex couple, which means that a same-sex couple

cannot register as a family for safety net purposes. The definition of

‘dependent child’ may also exclude the child of a lesbian co-mother

or gay co-father in the absence of a parenting order from the Family Court of

Australia.

This chapter explains how the

Medicare Safety Net and the PBS Safety Net currently apply to same-sex couples

and notes the problems faced by some same-sex couples in accessing family

coverage in private health funds. The chapter also discusses additional health

care concerns raised by submissions to this Inquiry. The chapter then explains

how the relevant legislation breaches Australia’s human rights obligations

and what should be done to stop discrimination against same-sex families.

Specifically, this chapter addresses the

following questions:

  • Does Medicare and PBS legislation recognise same-sex

    families?

  • Can a same-sex family access Medicare Safety Net

    benefits?

  • Can same-sex families access the PBS Safety

    Net?

  • Do same-sex families face problems in accessing private

    health insurance discounts?

  • What other health care issues concern same-sex

    families?

  • Do the Medicare and PBS laws breach human

    rights?

  • How should the law change to avoid breaches in the

    future?

11.2 Does

Medicare and PBS legislation recognise same-sex families?

The Medicare and PBS Safety Nets provide that when the

medical or pharmaceutical expenses of the ‘members of a person’s

family’ exceed the relevant threshold, government subsidies will increase.

Same-sex couples miss out on these additional

savings because the Health Insurance Act 1973 (Cth) (Health Insurance

Act) and the National Health Act 1953 (Cth) (National Health Act) do not

recognise a same-sex partner as a ‘member of a person’s

family’.

The medical expenses of a

lesbian co-mother’s child or gay co-father’s child may be considered

as part of his or her threshold account (particularly if the co-mother or

co-father has a parenting order from the Family

Court).

However, same-sex parents cannot

combine their expenses and the expenses of their children to reach the threshold

because they are not all considered part of the same family.

So while an opposite-sex couple can combine

their medical expenses, and the medical expenses of their children, to reach the

threshold amount, a same-sex couple cannot. Instead, one member of the same-sex

couple must meet each threshold only on his or her own expenses.

11.2.1 A

‘member of a person’s family’ must be the person’s

‘spouse’, ‘dependent child’ or spouse’s dependent

child

For the purposes of the Medicare and PBS Safety Nets,

a ‘member of a person’s family’ includes:

  • the person’s

    ‘spouse’

  • any ‘dependent child’ of the

    person

  • any ‘dependent child’ of the

    person’s

    ‘spouse’.[1]

11.2.2 ‘Spouse’

does not include a same-sex partner

The Health Insurance Act and the National Health Act

define a person’s ‘spouse’ to be a person who is legally

married or a ‘de facto

spouse’.[2]

The definition of ‘de facto

spouse’ requires that there be a genuine relationship with a person of the

opposite sex.[3] Thus, a same-sex

partner cannot qualify as a ‘spouse’ for the purposes of the PBS or

Medicare Safety Nets.

Correspondence from the

Department of Health and Ageing confirms that a same-sex couple is not

considered a couple for the PBS Safety Net:

The National Health Act 1953 does not allow for

same sex couples to work toward the same Safety Net

threshold.[4]

11.2.3 ‘Dependent

child’ may include the child of a same-sex parent

The Health Insurance Act and the National Health Act

define a ‘dependent child’ to be:

(a) a child under 16 who is:

(i) in the custody, care and control of that person; or

(ii) where no other person has the custody, care and

control of the child--is wholly or substantially in the care and control of the

first-mentioned person; or

(b) a student child who is wholly or substantially

dependent on the person.[5]

Chapter 5 on Recognising Children notes that

when children are born to a lesbian or gay couple their parents may include a

birth mother, lesbian co-mother, birth father or gay

co-father(s).[6]

The definition of ‘dependent

child’ potentially includes the child of all of these parents. However, it

may be more difficult for a lesbian co-mother or gay co-father to prove her or

his entitlement to the Medicare and PBS benefits than it would be for a birth

mother or birth father.

The legislation does

not specify what is required to prove that a child is in ‘the custody,

care and control’ of a person. However, a birth mother or birth father are

generally the legal parents of a child and therefore assumed to have

custody of a child.

On the other hand, a

lesbian co-mother and gay co-father may have to take additional steps to prove

that a child is in his or her custody. A parenting order in favour of the

lesbian co-mother or gay co-father should be sufficient. However, as Chapter 5

explains, parenting orders can be expensive and may involve lengthy court

proceedings.

If a same-sex couple does not

have the resources to go through this process, a lesbian co-mother and gay

co-father may be in a more tenuous position than a birth mother and birth father

(who just need a birth certificate to prove that a child is a ‘dependent

child’).

In any event, it remains the

case that two same-sex parents and a child cannot register together as one

family because the two parents are not considered each other’s

‘spouse’.

The Department of Health

and Ageing informed the Inquiry:

Under the current legislation, the PBS safety net

arrangements are not able to be applied to a family unit comprising a same sex

couple.[7]

11.2.4 The

dependent child of a same-sex partner is not the spouse’s dependent

child

In an opposite-sex family a child only needs to be the

‘dependent child’ of one member of the couple to be ‘a member

of a person’s family’. This is because a ‘member of the

person’s family’ includes:

  • any ‘dependent child’ of the person

    registering for the Safety Net or

  • any ‘dependent child’ of that

    person’s

    ‘spouse’.[8]

The ‘dependent child’ of

a person’s same-sex partner will not qualify as a member of the

person’s family because the same-sex partner is not a

‘spouse’.[9]

11.3 Can

a same-sex family access Medicare Safety Net benefits?

The Health Insurance Act includes two different safety

net schemes to help cover the cost of out-of-hospital medical expenses. One is a

general Safety Net and the other an Extended Safety

Net.

Eligible families who reach the threshold

amount with their combined out-of-hospital medical expenses may qualify for the

general Safety Net[10] and the

Extended Safety Net in any one

year.[11]

Individuals can also qualify for the general

Safety Net[12] and the Extended

Safety Net[13] by adding up their

individual expenses.

The general Safety Net

existed long before the Extended Safety Net was introduced. However, the

Extended Safety Net grants greater savings than the general Safety

Net.

11.3.1 A

same-sex family cannot register as a family

A family must be registered with Medicare in order to

obtain a family benefit under the general Safety Net or the Extended Safety

Net.[14] However, only a

‘member of a person’s family’ can register as part of a

family.[15]

As discussed in section 11.2 above, the narrow

definition of ‘spouse’ means that a same-sex partner cannot register

as a ‘member of a person’s

family’.

In a same-sex family with one

child, it seems that either member of the couple can register with the child,

but the other member of a couple will be treated as an individual.

In an opposite-sex family, both members of the

couple and the child can be registered. This means that each person’s

medical expenditure counts towards the thresholds.

The Tasmanian Gay and Lesbian Rights Lobby

note that:

...this creates an anomaly where a couple, with or without

children, cannot register as a complete family unit and renders one of the

same-sex couple as an

individual.[16]

This

means that same-sex couples and families must effectively spend twice as much

before the government starts to subsidise their out-of-pocket

payments.[17]

Vicki

Harding comments in her submission:

Our family consists of two women and one child. As my

partner and I have no access to marriage and our status as a couple living in a

de facto relationship is not recognised federally, we were not eligible to

register as a family. I registered with my daughter as a family and my partner

didn’t register because ‘single people without a dependant child or

children do not need to

register’.[18]

A

speaker at the Sydney forum also told the Inquiry that:

The exclusion of same-sex couples financially

disadvantages an already marginalised group, has a negative impact on dependent

children of same-sex couples and is out of touch with community values. Every

couple living together in a domestic relationship should have access to the

Safety Net, regardless of their

sexuality.[19]

11.3.2 Glossary

of Safety Net terms

The following terms help to understand the application

of the Medicare Safety Nets to same-sex

couples.

The schedule fee is the

standard service fee set by the Australian

Government.[20] It can either be

for a GP service or another medical service, such as blood tests, CT scans,

ultrasounds, x-rays or pap

smears.[21]

The doctor’s fee is the amount

charged by the doctor for the service. It is usually higher than the schedule

fee.

The Medicare rebate usually refunds

85% of the schedule fee for out-of-hospital

services.[22] However, from 1

January 2005, the Medicare rebate refunds 100% of the schedule fee for GP

services.[23]

Out-of-pocket

costs are the difference between the Medicare

rebate and what the doctor charges the

patient.[24] Out-of-pocket costs are

added together to reach the Safety Net thresholds. For example, if a GP’s

fee is $58.00 and Medicare rebates $32.10, the difference of $25.90 will count

towards the threshold. This term applies to the $1039 general and the $519.50

concessional Safety Net

thresholds.[25]

Gap amount refers to the difference

between the Medicare rebate and the schedule fee. For example, if the schedule

fee for a specialist medical service is $150 but the doctor charges $200,

Medicare will rebate 85% of $150 ($127.50). The ‘gap’ amount is

$22.50 - the difference between the schedule fee ($150) and the Medicare rebate

($127.50). This term is relevant for the $358.90 ‘gap’

threshold.[26]

11.3.3 A

same-sex family must spend more to access general Safety Net

subsidies

When a couple, family or individual reaches the

relevant general Safety Net threshold of $358.90 in any one year, Medicare

reimburses 100% of the schedule fee for out-of-hospital medical services for the

rest of that year.[27]

The amount that counts towards this threshold

is the difference, or ‘gap’, between the schedule fees for services

and the amount Medicare rebates. This is called the ‘gap’

threshold.[28]

For an opposite-sex couple with one child, the

‘gap’ amounts for the medical expenses of all three members of the

family can be added together to meet the $358.90 threshold. For a same-sex

couple with one child, one member of the couple will have to reach the $358.90

threshold on his or her own, and the other will have to meet the $358.90

threshold with his or her own expenses and the child’s

expenses.

Thus, a same-sex family must

accumulate two times $358.90 ($717.80) in ‘gap’ expenses before

Medicare reimburses 100% of the schedule fee for all family members. An

opposite-sex family only has to accumulate $358.90 in ‘gap’

expenses.

11.3.4 A

same-sex family must spend more to access Extended Safety Net

subsidies

Under the Extended Safety Net, when a family or

individual reaches the relevant threshold, Medicare pays 80% of out-of-pocket

costs.[29]

There are two different thresholds for the

Extended Safety Net.

The general

threshold of $1039 applies to all families and individuals who are not

eligible for a concession rate and who do not receive the Family Tax Benefit

A.[30]

The concessional threshold of $519.50

applies to concession card holders and families receiving the Family Tax Benefit

A.[31] Chapter 9 on Social Security

explains when a family is eligible for Family Tax Benefit

A.[32]

Each member of a same-sex couple must reach

the relevant threshold on his or her own. This is because the legislation does

not recognise a same-sex partner as a member of the

family.

For example, if the general threshold

applies, a same-sex couple will have to spend $2078 in out-of-pocket expenses

before the government subsidies apply to both members of the couple. An

opposite-sex couple will only have to spend $1039 in out-of-pocket expenses

before the subsidies apply to both members of the couple.

John Goldbaum notes:

We are now getting old. My husband's sister and her

husband are allowed to combine their expenditure in order to reach their PBS and

Medicare safety net thresholds. My husband and I need to pay out twice as much

because we have to reach our safety nets individually. It's not the money that

concerns us; it's the principle. It makes us second-class citizens despite the

fact that we are first-class

taxpayers.[33]

11.3.5 Example

comparing same-sex and opposite-sex couples seeking the Extended Safety Net

subsidies

Opposite-Sex

Couple

Jenny and Robert have a 10 year old son,

Ben. They are eligible for the concessional Extended Safety Net threshold of

$519.50. Between January and June, Jenny, Robert and Ben have a number of

medical visits.  

January - June
Medical Expenses
Medicare Rebate
Out-of-pocket

expenses

Jenny
$456.00
$218.05
$237.95
Robert
$566.00
$381.80
$184.20
Ben
$308.10
$210.75
$97.35
Total
$1330.10
$810.60
$519.50

As Jenny, Robert and Ben are an opposite-sex family,

their out-of-pocket expenses can be combined. This means that in June they

reached the concessional safety net threshold of $519.50. From July onwards,

Medicare will reimburse them an additional 80% of any future out-of-pocket

expenses.

Between July and December, Jenny,

Robert and Ben have another series of medical visits.

July -December
Medical Expenses
Medicare Rebate
80% additional Medicare

Rebate

Out-of-pocket

expenses

Jenny
$552.00
$355.85
$156.92
$39.23
Robert
$250.00
$110.00
$112.00
$28
Ben
$106.00
$60.95
$36.04
$9.01
Total
$908.00
$526.80
$304.96
$76.24

Because of the Extended

Safety Net, Jenny, Robert and Ben will only pay $76.24 in out-of-pocket expenses

for $908 worth of medical costs in the second half of the year.

Same-Sex

Couple

Sarah and Lilly have a 10 year old

daughter, Karen. Lilly is Karen’s birth mother. They are eligible for the

concessional threshold of $519.50. Between January and June, Sarah, Lilly and

Karen have a number of medical visits.

January - June
Medical Expenses
Medicare Rebate
Out-of-pocket

expenses

Sarah
$456.00
$218.05
$237.95
Lilly
$566.00
$381.80
$184.20
Karen
$308.10
$210.75
$97.35
Total
$1330.10
$810.60
$519.50

As Sarah, Lilly and Karen are a same-sex family, their

out-of-pocket expenses cannot be combined. This means that Sarah and Lilly have

to reach the concessional threshold individually. Sarah’s out-of-pocket

expenses are $237.95, which does not meet the $519.50 threshold. Lilly can

include Karen’s medical costs with her own. Lilly and Karen’s

out-of-pocket expenses are $281.55. Again this does not meet the concessional

threshold of $519.50.

Sarah, Lilly and Karen

are therefore not eligible for the additional 80% rebate for any future medical

expenses.

Over the next 6 months Sarah, Lilly

and Karen have another series of medical visits.

July - December
Medical Expenses
Medicare Rebate
80% additional Medicare

Rebate

Out-of-pocket

expenses

Sarah
$552.00
$355.85
$0
$196.15
Lilly
$250.00
$110.00
$0
$140.00
Karen
$106.00
$60.95
$0
$45.05
Total
$908.00
$526.80
$0
$381.20

Sarah, Lilly and Karen have paid $381.20 in

out-of-pocket expenses for $908 worth of medical expenses in the second half of

the year.

The medical services accessed by each

family were identical. However, Sarah, Lilly and Karen are $304.96 worse off

than Jenny, Robert and Ben, just because they are a same-sex

family.[34]

11.3.6 Lesbian

couples will pay more to access assisted reproductive technology

As discussed in Chapter 5 on Recognising Children,

many same-sex couples use assisted reproductive technology (ART) to create a

family.

ART treatments can be very

expensive.[35] Qualifying for the

Medicare Safety Net can help greatly in meeting the costs. As a 2006 study

notes:

The most significant change to funding of ART in the past

decade has been the introduction of the Medicare Plus Safety Net [the Extended

Safety Net] in January 2004...[t]his policy has effectively reduced patient

expenses for ART services by up to

half...[36]

Couples who access ART treatments will almost

always reach the Medicare Safety Net thresholds due to the high costs of these

treatments. However, women in lesbian relationships will have to pay much more

in out-of-pocket expenses than an opposite-sex couple before they can access

those added benefits.

The impact of the cost of

ART was raised in a number of consultations and in several submissions to the

Inquiry. Sharon Isle and Natasha Miller comment in their submission:

Given we are undergoing further Assisted Reproductive

Technology (ART) to try and conceive again, and that the amount of the rebate we

receive is dependent on where we are in relation to our threshold (for both the

procedures and the medication), we will end up being significantly financially

out-of-pocket (less so if we were on the couples safety net). [37]

Similarly, Kelly and Samantha Pilgrim-Byrne

note in their submission to the Inquiry:

We have been in a de facto relationship for 12.5 years and

for the past 2.5 years we have been trying to conceive our first child through a

fertility clinic in Perth. Without going into great detail, I have been

diagnosed with medical infertility and have needed to resort to IVF treatments.

Last year alone we spent $20,000 on treatment and medications. Because we are

not recognised as a couple for the Medicare Safety Net, we are required to meet

out-of-pocket expenses as two single people. In 2006 this figure will be $1,000

each (effectively $2,000 combined). If we were a heterosexual couple we would be

considered a family and this figure would be $1,000 combined ($500 each). The

variance in this Safety Net would allow us to be able to claim a higher rebate

much earlier if we were considered a couple, thereby enabling us to access more

treatment than we currently can

afford.[38]

The same couple in their opening statement to

the Inquiry’s Perth hearing stated that:

Often we sit in the waiting room of our fertility clinic

and look around us at the many other couples struggling with infertility. What

isn’t lost on us, however, is that we pay more for our treatment than they

do and that their struggle is legitimised by the Government with financial

support that we don’t

receive.[39]

Felicity Martin and Sarah Lowe write about

similar problems in their submission:

Throughout the process, which included lengthy treatment

for Sarah’s PCOS condition, Sarah was classified as a single person. The

biggest financial burden we faced during this often emotional and distressing

time was [the] Medicare Safety Net. During the process if we had been able to be

declared a couple under federal law, the safety net threshold for receiving the

rebate would have been only $350 [$519.50 as of 1 January 2007]. Instead we had

to wait until Sarah alone had reached the safety net threshold of $700 [$1039 as

of 1 January 2007] in a calendar year to access the 80%

rebate.[40]

11.4 Can

same-sex families access the PBS Safety Net?

The PBS is administered under

the National Health Act 1953 (Cth) and the

National Health (Pharmaceutical Benefits) Regulations 1960 (Cth).

The PBS Safety Net is very similar to the

Medicare Safety Net, except that it focuses on pharmaceutical costs rather than

doctor’s costs.

Once an

individual or family has spent a certain amount on prescription medications in

one year, the cost of further medications is reduced for the remainder of the

calendar year.[41]

Like the Medicare Safety Net, a same-sex

couple will have to spend much more than an opposite-sex couple before receiving

PBS Safety Net subsidies.

The Gay and Lesbian

Rights Lobby (NSW) notes:

A same-sex parent family would need to reach two

thresholds in order for all members of the family to be covered under the PBS,

as opposed to opposite-sex parent families which only need to spend $960.10

[$1059 in 2007]. This legislative discrimination can cost up to $755 a year

– the difference between the full price that the second same-sex partner

must pay for 32 prescriptions in order to reach the threshold, and the

concession price that they would [pay] if they were in a heterosexual

couple.[42]

11.4.1 A

same-sex family spends more to access general Safety Net

subsidies

There are two different thresholds for the PBS Safety

Net:

  • general patients
  • concessional patients (concession card

    holders).[43]

A general patient (and a family), has

a PBS Safety Net threshold of $1059 per calendar year. General patients pay up

to $30.70 for prescription medications. Once the individual or family has spent

more than $1059 on those medications, each member of the family will pay only

$4.90 per prescription for PBS medicines for the remainder of the calendar

year.[44]

A concession card holder (and a family) has a

PBS Safety Net threshold of $274.40 per calendar year. Concession card holders

pay $4.90 for each prescription. Once the individual or family has spent more

than $274.40 on those medications (56 prescriptions), each member of the family

will receive PBS medicines free of charge for the remainder of the calendar

year.[45]

For

either threshold amount, a same-sex couple will have to spend twice as much on

PBS medications in any one year than an opposite-sex couple, before they can

purchase PBS medications at a significantly reduced rate for the remainder of

the calendar year. This is because the legislation does not recognise a same-sex

partner as a member of a person’s

family.

Doug Pollard writes in his submission

to the Inquiry:

My partner has a heart condition, high cholesterol and is

borderline diabetic, conditions which will only worsen as he ages, and I will no

doubt be subject to the usual problems of ageing. Yet we will not be entitled to

full pharmaceutical benefits as a

couple.[46]

Similarly, Eva Battaglini discusses how the

PBS Safety Net affects her and her partner:

My partner and I are both suffering from medical

conditions which will require us to be taking prescription medicines, possibly

for the rest of our lives. Currently, the PBS and Medicare safety net schemes do

not recognise us as being a family.

Apart from finding their definition of the word

‘family’ to be rather narrow and insulting, we feel that it is

unfair that simply because we are not a heterosexual couple we are not counted

as a couple by the PBS safety net scheme. This means that we must each reach the

safety net limit individually, which puts us at the financial disadvantage of

having to pay twice as much as a heterosexual couple would before receiving the

same benefits.[47]

Another submission to the Inquiry states

that:

I am...eligible for a pharmaceutical benefit[s]

entitlement card. Again my partner and child are excluded. As a result, we pay

more as a family for medical expenses and medicines. This is an unfair strain on

our family. It is difficult enough coping with the burden of cost associated

with having a disability, let alone having to pay extra because of outdated

discriminatory attitudes.[48]

11.4.2 People

living with chronic health conditions pay more if they are in a same-sex

couple

The discrimination against same-sex couples in the PBS

Safety Net particularly affects same-sex couples where one or both of the couple

are living with HIV/AIDS or another chronic health condition.

In these cases, the cumulative costs of

prescribed medications in any one year may be particularly high. ACON explains

this impact as follows:

By excluding same-sex couples from the definition of

‘de facto spouse’, and thus ‘family’ under the National Health Act 1973, PLWHA [people living with HIV/AIDS] in same-sex

relationships are required to reach the individual safety-net threshold of

$960.10 ($253.80 for concession card holders) [$1059 and $274.40 respectively in

2007], whilst heterosexual couples can combine their PBS expenses to reach the

same threshold. Therefore, PLWHA in same-sex relationships must pay double the

amount in medication before they are entitled to the same benefits, meaning that

one of the groups that the PBS Safety Net is designed to assist continues to

face unnecessary disadvantage in meeting their medication

costs.[49]

Similarly

the Australian Federation of AIDS Organisations states that:

The Medicare Safety Net and the Pharmaceutical Benefits

Scheme (PBS) Safety Net are designed to assist people with meeting high medical

expenses. This initiative is particularly important for people living with

HIV/AIDS, who typically have high medical and pharmaceutical costs. Under

current legislation, however, different thresholds apply to single people and

families. The definitions of ‘spouse’ and ‘de facto

spouse’ do not include people in same-sex relationships. This can have a

discriminatory effect on people seeking to access

healthcare.[50]

11.5 Do

same-sex families face problems in accessing private health insurance

discounts?

During

the Inquiry’s consultations, some same-sex couples said they had no

problems, while others said they had great problems, in obtaining family

coverage in private health funds.

For example,

a woman from the Blue Mountains forum noted that when she was in a same-sex

relationship, she and her partner and their three children found it easy to be

covered under a family policy for private health

insurance.[51] In another submission

a member of a same-sex couple explained:

My partner and I have been together for eight years, we

have six children between us. We have private health benefits which recognise us

as a

family.[52]

However,

another same-sex couple stated:

I have had a number of health insurance companies that

would not recognise my partner and I as a couple and therefore we would have had

to both pay the single

rate.[53]

The

Gay and Lesbian Rights Lobby (NSW) submission highlights that uncertainty is the

main problem:

My health insurance offers a couple-rate to a same-sex

partner but not all of them do and they don’t have to... I want

legislation making some clear kind of decision about this, because a lot of the

anxiety comes from not knowing where you are going. If I walk through a door can

I know that my relationship will be

recognised?[54]

Similarly,

Eilis Hughes writes in her submission:

Recently when seeking to change my health insurance, I

discovered that we could not take out family insurance as a couple. The concept

didn’t seem to make sense to the staff at the insurance

companies.[55]

11.6 What

other health care issues concern same-sex families?

A number of additional health care issues were raised

in the oral and written submissions to the Inquiry. While the following issues

are not strictly within the Inquiry’s Terms of Reference, they are briefly

mentioned here to highlight some of the health care issues concerning the

community.

11.6.1 Treatment

of a same-sex partner by hospital staff

A number of oral and written submissions to the

Inquiry expressed concern about the way they had been treated in hospitals.

Some people said that hospital staff prevented

them from giving medical consent in relation to their same-sex

partner.[56] This is despite the

fact that same-sex couples appear to have that right in some state and territory

laws.[57]

In

Murray Bridge, South Australia, the Inquiry’s forum heard from a woman who

was hospitalised last year:

My partner rode in the ambulance with me and stayed with

me while I received treatment. However, when consent for further treatment was

needed the hospital had to find my sister. Everything goes fine until the laws

kick in and then the same sex partner is

excluded.[58]

A

woman told a story about a lesbian woman being denied the right to farewell her

dying partner:

One of our lesbian friends lay ill and dying in her

hospital bed. When it came time for her to die the hospital staff prevented her

partner from entering her hospital room and sitting with her at the end of her

life because she was not the ‘spouse’.

Our friend died, alone. Her partner sat outside in the

corridor prevented from being with her. She continues to suffer great distress

that her life-time partner died without her comfort and without knowing she was

there with

her.[59]

One

man spoke at the Launceston Forum and described the experiences of his two

daughters when accessing medical care. One is in a same-sex relationship and the

other is an opposite-sex relationship:

Recently while visiting my daughter [Sacha], Anna came

home from work in pain and distressed with a bad ear infection, before departing

to go to the emergency room, I couldn’t but notice sadly that Sacha

gathered all these papers that states their relationship. Yet when we got there,

that was one of the first questions asked - their relationship status - to be

able to tick the right category, to which my daughter replied they are a couple

and it was up to them to which category they thought was applicable.

My other daughter only has to be there with her [male]

partner, no further questions are needed, and the Medicare card says it

all.[60]

In

Newcastle a woman told a more positive story:

Another woman comments that she didn’t have one

scrap of trouble through months of cancer treatment for her partner. She says

she was the one who was consulted by hospital staff throughout the whole

process.[61]

Dr

Samantha Hardy, Dr Sarah Middleton and Dr Lisa Butler talk about the findings of

the Tasmanian Parliament’s Report on the Legal Recognition of

Significant Personal

Relationships.[62] Some of the

relevant findings of the report include:

  • Limitations are imposed on same-sex partners in

    situations involving the illness or death of their partner.

  • Same-sex partners are sometimes denied visitation rights

    to their partner in times of medical emergencies because hospital policy

    generally restricts access to ‘close family’ and this is often

    determined on the basis of marital or blood ties.

  • Same-sex partners are not always given the right

    to make decisions for their incapacitated partner, and could be excluded from

    the right to make decisions on behalf of a deceased partner in matters

    concerning organ donation and

    autopsies.[63]

11.6.2 Connections

between homophobia and mental health

A number of organisations wrote to the Inquiry about

the link between poor mental health and the existence of homophobia and

discriminatory laws. ACON put it thus:

Unsurprisingly, discrimination against same-sex attracted

people, their relationships and their families, manifests itself through a

number of poor health indicators. A survey of the health and wellbeing of 5476

GLBTI Australians in 2006 found that 33% had experienced

depression[64] and there is

significant evidence to suggest a strong correlation between homophobia and

higher levels of drug and alcohol

abuse.[65] Removing legislative

inequality against same-sex relationships will not end homophobia and homophobic

abuse in Australian society, but it is an important step in challenging the

stigmatisation, discrimination and social exclusion experienced by GLBT

Australians.[66]

11.7 Do

the Medicare and PBS laws breach human rights?

This chapter explains that because the definition of

‘spouse’ in Medicare and PBS legislation excludes a same-sex

partner, same-sex couples miss out on additional medical subsidies which are

available to opposite-sex couples.

The main

finding of this chapter is that Medicare and PBS laws breach the right to

non-discrimination under article 26 of the International Covenant on Civil

and Political Rights (ICCPR).

The Convention on the Rights of the Child (CRC) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR) also seek to

ensure that all adults and their children have equal access to health care

facilities and enjoy the highest attainable standard of physical and mental

health, without discrimination (CRC, articles 24, 2; ICESCR, articles 12,

2).

Further, ICESCR prohibits discrimination in

the provision of the right to social security, which includes social support for

medical costs (article 9, 2(2)).

Denying

same-sex couples and families access to medical subsidies available to

opposite-sex couples breaches all of these rights. It may also compromise the

best interests of a child, if the child and his or her parents have significant

medical needs (CRC, article 3(1); article

2(1)).

Chapter 3 on Human Rights Protections

explains these principles in more detail.

11.8 How

should the law change to avoid breaches in the future?

It is clear that same-sex couples are financially

worse off than opposite-sex couples when it comes to claiming benefits under the

Medicare and PBS Safety Nets. Simply put, same-sex couples have to pay much more

than opposite-sex couples to get the same benefits.

The following sections summarise the cause of

the problems and how to fix them.

11.8.1 Narrow

definitions are the main cause of discrimination

The reason that same-sex couples are worse off than

opposite-sex couples is because a ‘member of a person’s

family’ does not include a member of a same-sex family. That definition

refers to a person’s ‘spouse’. The definition of

‘spouse’ refers to the definition of ‘de facto spouse’.

And the definition of ‘de facto spouse’ excludes a same-sex partner.

This means that a same-sex family cannot accumulate expenses in the same way as

an opposite-sex family.

The definition of

‘dependent child’ may include the child of a lesbian co-mother and

gay co-father as well as the child of the birth parents. But in the absence of

parenting presumptions or adoption, the lesbian co-mother or gay co-father may

need to get a parenting order to prove the relationship. This can be expensive

and complicated.

11.8.2 The

solution is to amend the definitions

Chapter 4 on Recognising Relationships presents two

alternative approaches to amending discriminatory definitions within federal law

regarding same-sex couples.

The Inquiry’s

preferred approach for bringing equality to same-sex couples is to:

  • retain the current terminology used in federal

    legislation (for example retain the term ‘spouse’ in the Medicare

    and PBS legislation)

  • redefine the terms in the legislation to include same-sex

    couples (for example, redefine ‘spouse’ to include a ‘de facto

    partner’)

  • insert new definitions of ‘de facto

    relationship’ and ‘de facto partner’ which include same-sex

    couples.

Chapter 5 on Recognising

Children sets out how to better protect the rights of both the children of

same-sex couples and the parents of those children.

The Inquiry recommends that the federal

government implement parenting presumptions in favour of a lesbian co-mother of

a child conceived through assisted reproductive technology (ART). This would

mean that an ART child of a lesbian co-mother would generally qualify as a

‘dependent child’ (in the same way as the ART child of a father in

an opposite-sex couple would qualify).

Chapter

5 also suggests that it should be easier for a lesbian co-mother and gay

co-father to adopt a child. Again, if this occurred then their children would

generally qualify as a ‘dependent

child’.

Finally, Chapter 5 suggests that

federal legislation should clearly recognise the status of a person who has a

parenting order from the Family Court of Australia. This would mean that a child

of a gay co-father or lesbian co-mother with parenting orders would more clearly

qualify as a ‘dependent child’.

The following list sets out the definitions

which would need to be amended according to these suggested approaches.

The Inquiry notes that if the government were

to adopt the alternative approach set out in Chapter 4, then different

amendments would be required.

11.8.3 A

list of legislation to be amended

The Inquiry recommends amendments to the following

legislation discussed in this

chapter:

Health Insurance Act 1973 (Cth)

‘de facto partner’ (insert new

definition)

‘de facto relationship’ (insert new

definition)

‘dependent child’ (s 10AA(7) – amend to

clarify the role of a parenting order; otherwise no need to amend if the child

of a lesbian co-mother or gay co-father may also be recognised through reformed

parenting presumptions or adoption laws)

‘member of a person’s family’ (s 10AA(1)

– no need to amend if ‘spouse’ is amended and ‘dependent

child’ recognises the child of a lesbian co-mother or gay co-father

through reformed parenting presumptions or adoption laws)

‘spouse’ (s 10AA(7) – amend to refer to

a ‘de facto partner’)

National

Health Act 1953 (Cth)

‘de facto relationship’ (insert new

definition)

‘de facto spouse’ (s 4 – replace with

new definition of ‘de facto partner’)

‘dependent child’ (s 84B(4) – amend to

clarify the role of a parenting order; otherwise no need to amend if the child

of a lesbian co-mother or gay co-father may also be recognised through reformed

parenting presumptions or adoption laws)

‘member of a person’s family’ (s 84B(1)

– no need to amend if ‘spouse’ is amended and ‘dependent

child’ recognises the child of a lesbian co-mother or gay co-father

through reformed parenting presumptions or adoption laws)

‘spouse’ (s 84B(4) - replace the term

‘de facto spouse’ with the term ‘de facto

partner’)


Endnotes

[1] Health Insurance Act 1973 (Cth), s 10AA(1); National Health Act

1953 (Cth), s

84B(1).
[2] Health Insurance Act 1973 (Cth), s 10AA(7); National Health Act 1953 (Cth), s

84B(4).
[3] National Health Act 1953 (Cth), s 4(1). Note that as a result of section

3(1A) of the Health Insurance Act 1973 (Cth), the definition of ‘de

facto spouse’ in the National Health Act 1953 (Cth) also applies to

the Health Insurance Act 1973 (Cth).
[4] Extract from Information Manual for call centre staff in the PBS Information

Line, in D Kalisch, Deputy Secretary, Department of Health and Ageing,

Correspondence to the President, Human Rights and Equal Opportunity Commission,

6 November

2006.
[5] Health Insurance Act 1973 (Cth), s 10AA(7); National Health Act

1953 (Cth), s

84B(4).
[6] For an explanation of these terms see the Glossary of

Terms.
[7] Standard words for use by departmental staff in responding to correspondence or

queries regarding the PBS Safety Net Scheme, in D Kalisch, Deputy Secretary,

Department of Health and Ageing, Correspondence to the President, Human Rights

and Equal Opportunity Commission, 6 November

2006.
[8] Health Insurance Act 1973 (Cth), s 10AA(1)(b); National Health Act

1953 (Cth), s 84B(1).
[9] National Health Act 1953 (Cth), s 4(1). Note that as a result of section

3(1A) of the Health Insurance Act 1973 (Cth), the definition of ‘de

facto spouse’ in the National Health Act 1953 (Cth) also applies to

the Health Insurance Act 1973 (Cth).
[10] Health Insurance Act 1973 (Cth), s

10AC.
[11] Health Insurance Act 1973 (Cth), s

10ACA.
[12] Health Insurance Act 1973 (Cth), s 10AD.
[13] Health Insurance Act 1973 (Cth), s

10ADA.
[14] Health Insurance Act 1973 (Cth), ss 10AA, 10AC,

10ACA.
[15] Health Insurance Act 1973 (Cth), s

10AA.
[16] Tasmanian Gay and Lesbian Rights Lobby, Submission

233.
[17] Medicare Australia, How does the Medicare safety net work?,

http://www.medicare.gov.au/resources/medicare/1747-how-does-the-medicare-safety-net-work.pdf,

viewed 10 January

2006.
[18] Vicki Harding, Submission

29.
[19] Speaker, Sydney Forum, 26 July

2006.
[20] Health Insurance Act 1973 (Cth), s 10. See also Medicare Australia, About the Medicare Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/msn/about_msn.htm,

viewed 20 March 2007.
[21] Medicare Australia, About the Medicare Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/msn/about_msn.htm,

viewed 20 March 2007.
[22] Health Insurance Act 1973 (Cth), s 10(2)(b). See also Health Insurance

Commission Australia, Glossary of Commonly Used Terms,

http://www.hica.com.au/commonterms.html#mbsfee, viewed 27 February 2007.
[23] Health Insurance Act 1973 (Cth), s 10(2)(aa); See also Liberal Party

Election 2004 Policy document, 100% Medicare Making GP Services More

Affordable Than Ever Before, p5,

http://www.liberal.org.au/2004_policy/sept06_100_percent_Medicare.pdf, viewed 23

March

2007.
[24] Health Insurance Act 1973 (Cth), ss 10ACA(3), 10ADA(4). See also Medicare

Australia, About the Medicare Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/msn/about_msn.htm,

viewed 29 November

2006.
[25] Health Insurance Act 1973 (Cth), ss 10ADA, 10ACA. See also Medicare

Australia, How does the Medicare Safety net work?, p2,

http://www.medicare.gov.au/resources/medicare/

1747-how-does-the-medicare-safety-net-work.pdf,

viewed 10 January

2007.
[26] Health Insurance Act 1973 (Cth), ss 10-10AA. See also Medicare Australia, How

does the Medicare Safety net work?, p4, http://www.medicare.gov.au/resources/medicare/

1747-how-does-the-medicare-safety-net-work.pdf,

viewed 10 January 2007.
[27] Medicare Australia, How does the Medicare Safety net work?,

http://www.medicare.gov.au/resources/medicare/

1747-how-does-the-medicare-safety-net-work.pdf,

viewed 10 January 2007. This rate was current as at 10 January

2007.
[28] Medicare usually rebates 100% of the schedule fee for GP services and 85% of the

schedule fee for other out-of-hospital services: Medicare Australia, About

the Medicare Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/msn/about_msn.htm,

viewed 10 January

2007.
[29] Health Insurance Act 1973 (Cth), ss 10ACA-10ADA.
[30] Medicare Australia, How does the Medicare Safety net work?,

http://www.medicareaustralia.gov.au/resources/medicare/

1747-how-does-the-medicare-safety-net-work.pdf,

viewed 8 February 2007. This rate was current as at 10 January

2007.
[31] A concessional family is a combination of at least one adult plus another family

member who is entitled to a Commonwealth concession card. Only these concession

card holders’ out-of-pocket costs count toward the concession Medicare

Safety-Net threshold: Medicare Australia, How does the Medicare Safety net

work?, pp2-3,

http://www.medicareaustralia.gov.au/resources/medicare/

1747-how-does-the-medicare-safety-net-work.pdf,

viewed 8 February 2007.
[32] Chapter 9 Social Security, section

9.7.
[33] John Goldbaum, Submission

15.
[34] All the amounts used in this table are estimates and not actual costs and

rebates.
[35] For example, women undergoing ART can spend anywhere from $2141 for assisted

insemination to $8700 for one IVF cycle. A 2006 study found that the average

health care cost per non-donor ART live-birth was $32 903: G Chambers, M Ho and

E Sullivan, ‘Assisted reproductive technology treatment costs of a live

birth: an age-stratified cost-outcome study of treatment in Australia’, The Medical Journal of Australia, vol 184, no 4, 2006, pp155-158,

http://www.mja.com.au/public/issues/184_04_200206/cha10890_fm.html, viewed 23

March

2007.
[36] G Chambers, M Ho and E Sullivan, ‘Assisted reproductive technology

treatment costs of a live birth: an age-stratified cost-outcome study of

treatment in Australia’, The Medical Journal of Australia, vol 184,

no 4, 2006, pp155-158, http://www.mja.com.au/public/issues/184_04_200206/cha10890_fm.html, viewed 23

March

2007.
[37] Sharon Isle and Natasha Miller, Submission

182.
[38] Kelly and Samantha Pilgrim-Byrne, Submission 13.
[39] Kelly and Samantha Pilgrim-Byrne, Opening Statement, Perth Hearing, 9 August

2006.
[40] Felicity Martin and Sarah Lowe, Submission 145.
[41] National Health Act 1953 (Cth), ss 84C, 92, 94, 99F.The PBS Safety Net

threshold may be reached by accumulating PBS prescriptions through community

pharmacies and/or public hospitals: Department of Health and Ageing, The

Safety Net Scheme,

http://www.pbs.gov.au/html/healthpro/browseby/explanatory-notes?ref=section1-safetynet,

viewed 23 March 2007.
[42] Gay and Lesbian Rights Lobby (NSW), Submission 333.
[43] Medicare Australia, PBS Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/pbs_safety_net.htm#what_to_do,

viewed 23 March 2007. Pharmaceutical benefit items can only be included for the

Safety Net threshold when prescribed and supplied according to the PBS Schedule.

The PBS Schedule lists the medicines that are eligible under the PBS Scheme and

provides guidelines for the administration of the PBS scheme: see Department of

Health and Ageing, http://www.pbs.gov.au/html/home, viewed 23 March

2007.
[44] This information is current as at 1 January 2007. See Medicare Australia, PBS

Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services

/pbs_safety_net.htm#what_to_do,

viewed 23 March

2007.
[45] This information is current as at 1 January 2007. See Medicare Australia, PBS

Safety Net,

http://www.medicareaustralia.gov.au/yourhealth/our_services/

pbs_safety_net.htm#what_to_do,

viewed 10 January 2007. Concession card holders include people who receive the

Age Pension, Disability Support Pension, the Parenting Payment (single) and the

Family Tax Benefit A amongst others. For a more detailed explanation of

concession cards and various pensions and benefits, see Chapter 9 on Social

Security.
[46] Doug Pollard, Submission 1.
[47] Eva Battaglini, Submission 95.
[48] Name Withheld, Submission 267.
[49] ACON, Submission 281. Note that the figures quoted in the submission were

correct as of 2006. The PBS Safety Net thresholds have increased to $1059 and

$274.40 in 2007 for general and concessional patients

respectively.
[50] The Australian Federation of AIDS Organisations, Submission

285.
[51] Blue Mountains Public Forum, 16 November

2006.
[52] Jodie, Submission

248.
[53] Jenny Archer, Submission

164.
[54] Gay and Lesbian Rights Lobby (NSW), Submission

333.
[55] Eilis Hughes, Submission

37.
[56] See Townsville Forum, 12 October 2006; Wollongong Forum, 12 October 2006; Sue

McNamara and Leanne Nearmy, Adelaide Hearing, 28 August 2006; Aly M, Submission

184; Name Withheld, Submission 138; PFLAG Brisbane, Submission 68; South

Australia Equal Opportunity Commission, Submission 316; Peter Taylor and Hans

Boeswinkel, Submission 94; The Hon Ian Hunter MLC, Submission 306 and Young

Lawyers Human Rights Committee, Submission

311.
[57] See for example, Guardianship Act 1987 (NSW), ss 33A, 36; Guardianship

and Administration Act 1986 (Vic), ss 37, 39; Guardianship and

Administration Act 1995 (Tas), ss 4, 39; Guardianship and Administration

Act 1990 (WA), s

119.
[58] Murray Bridge Consultation, 29 August 2006.
[59] Name Withheld, Submission

150.
[60] Bryce Petersen, Launceston Forum, 25 September

2006.
[61] Newcastle Consultation, 24 October

2006.
[62] Dr Samantha Hardy, Dr Sarah Middleton and Dr Lisa Butler, Submission

125.