Commonwealth: Medical Indemnity Act 2002 (Cth)

Medical Indemnity Act 2002 No. 132, 2002 Compilation No. 23 Compilation date: 14 October 2024 Includes amendments: Act No. 38, 2024 About this compilation This compilation This is a compilation of the Medical Indemnity Act 2002 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects of this Act and the medical indemnity payment legislation 4 Definitions 5 Medical defence organisation (MDO) 6 Member of an MDO 7 Incident‑occurring based cover 8 IBNR exposure of an MDO 8A Eligible related claims 8B Treatment of deductibles for the exceptional claims indemnity scheme and the allied health exceptional claims indemnity scheme 9 External Territories Part 2—Commonwealth payments Division 1—IBNR (incurred but not reported) indemnity scheme Subdivision A—Introduction 10 Guide to the IBNR indemnity provisions Subdivision C—Incidents covered by the IBNR indemnity scheme 14 Incidents covered by the IBNR indemnity scheme Subdivision D—IBNR indemnity 15 IBNR indemnity may be payable under either section 16 or 17 16 IBNR indemnity for payment made by MDO or insurer 17 IBNR indemnity for MDO or insurer in external administration 18 Clarification of circumstances in which IBNR indemnity payable 19 Exceptions 20 Payment partly related to treatment of public patient in public hospital 21 Amount of the IBNR indemnity Subdivision E—Recovery of amount paid to MDO or insurer after IBNR indemnity paid 24 Recovery if certain amounts paid to MDO or insurer after IBNR indemnity paid 25 MDO or insurer to inform Chief Executive Medicare of certain amounts 26 Chief Executive Medicare to notify MDO or insurer of repayable amount 27 Penalty imposed if an amount is repaid late Subdivision F—Regulations may provide for payments 27A Regulations may provide for payments in relation to IBNR claims 27B The Chief Executive Medicare may request information Subdivision G—IBNR exposure 27C Process for annually reassessing IBNR exposure Division 2—High cost claim indemnity scheme Subdivision A—Introduction 28 Guide to the high cost claim indemnity provisions 29 High cost claim threshold Subdivision B—High cost claim indemnity 30 Circumstances in which high cost claim indemnity payable 31 Aggregating amounts paid or payable by an MDO and insurer 32 Exceptions 33 Payment partly related to treatment of public patient in public hospital 34 Amount of high cost claim indemnity Subdivision C—Regulations may provide for payments 34AA Regulations may provide for payments in relation to high cost claims 34AB The Chief Executive Medicare may request information Division 2A—Exceptional claims indemnity scheme Subdivision A—Introduction 34A Guide to the exceptional claims indemnity provisions 34D Interaction with high cost claim indemnity scheme and run‑off cover indemnity scheme Subdivision B—Certification of qualifying claims 34E When may the Chief Executive Medicare certify a claim as a qualifying claim? 34F What is the relevant threshold? 34G Setting the exceptional claims termination date 34H Application for a qualifying claim certificate 34I Time by which an application must be decided 34J Obligation to notify the Chief Executive Medicare if information is incorrect or incomplete 34K Revocation and variation of qualifying claim certificates Subdivision C—Exceptional claims indemnity 34L When is an exceptional claims indemnity payable? 34M Qualifying liabilities 34N Treatment of a claim that partly relates to a public patient in a public hospital 34O Treatment of a claim that relates to a series of incidents some of which occurred after the exceptional claims termination date 34P The amount of exceptional claims indemnity that is payable 34Q How exceptional claims indemnity is to be applied 34R Who is liable to repay an overpayment of exceptional claims indemnity? Subdivision D—Payments that would have reduced the amount paid out under the contract of insurance 34S Amounts paid before payment of exceptional claims indemnity 34T Amounts paid after payment of exceptional claims indemnity 34U Obligation to notify the Chief Executive Medicare that amount has been paid 34V The Chief Executive Medicare to notify of amount of debt due 34W Penalty imposed if an amount is repaid late Subdivision E—Regulations may provide for payments 34X Regulations may provide for payments in relation to exceptional claims 34Y The Chief Executive Medicare may request information Subdivision F—Miscellaneous 34Z Modifications and exclusions Division 2B—Run‑off cover indemnity scheme Subdivision A—Introduction 34ZA Guide to the run‑off cover indemnity provisions 34ZB Eligible run‑off claims Subdivision B—Run‑off cover indemnities 34ZC Circumstances in which run‑off cover indemnities are payable 34ZD MDOs and medical indemnity insurers that are Chapter 5 bodies corporate 34ZE Aggregating amounts paid or payable by an MDO and medical indemnity insurer 34ZF Clarification of circumstances in which run‑off cover indemnities are payable 34ZG Exceptions 34ZH Amount of run‑off cover indemnities Subdivision C—Payments that would have reduced the amount of run‑off cover indemnity 34ZI Amounts paid before run‑off cover indemnity 34ZJ Amounts paid after payment of run‑off cover indemnity 34ZK Obligation to notify the Chief Executive Medicare that amount has been paid 34ZL The Chief Executive Medicare to notify of amount of debt due 34ZM Penalty imposed if an amount is repaid late Subdivision D—Regulations may provide for payments 34ZN Regulations may provide for payments in relation to run‑off claims 34ZO The Chief Executive Medicare may request information Subdivision E—Effect of terminating the run‑off cover indemnity scheme 34ZP Commonwealth's obligations on termination of the run‑off cover indemnity scheme 34ZQ Affected medical practitioners 34ZR Payments in relation to affected medical practitioners 34ZS Total run‑off cover credits 34ZT Medical indemnity insurers must provide information attributing run‑off cover support payments Subdivision F—Miscellaneous 34ZU Chief Executive Medicare must be notified of a person ceasing to be covered by the run‑off cover indemnity scheme 34ZV Invoices for medical indemnity cover 34ZW Reports on the run‑off cover indemnity scheme 34ZX Modifications and exclusions Division 2C—Allied health high cost claim indemnity scheme Subdivision A—Introduction 34ZY Guide to the allied health high cost claim indemnity provisions 34ZZ Eligible MDOs and eligible insurers 34ZZA Allied health high cost claim threshold Subdivision B—Allied health high cost claim indemnity 34ZZB Circumstances in which allied health high cost claim indemnity payable 34ZZC Aggregating amounts paid or payable by an MDO and insurer 34ZZD Exceptions 34ZZE Payment partly related to treatment of public patient in public hospital 34ZZF Amount of allied health high cost claim indemnity Subdivision C—Regulations may provide for payments 34ZZG Regulations may provide for payments in relation to allied health high cost claims 34ZZH The Chief Executive Medicare may request information Division 2D—Allied health exceptional claims indemnity scheme Subdivision A—Introduction 34ZZI Guide to the allied health exceptional claims indemnity provisions 34ZZJ Interaction with allied health high cost claim indemnity scheme Subdivision B—Certification of qualifying allied health claims 34ZZK When may the Chief Executive Medicare certify a claim as a qualifying allied health claim? 34ZZL What is the relevant allied health threshold? 34ZZM Setting the allied health termination date 34ZZN Application for a qualifying allied health claim certificate 34ZZO Time by which an application must be decided 34ZZP Obligation to notify the Chief Executive Medicare if information is incorrect or incomplete 34ZZQ Revocation and variation of qualifying allied health claim certificates Subdivision C—Allied health exceptional claims indemnity 34ZZR When is an allied health exceptional claims indemnity payable? 34ZZS Qualifying allied health liabilities 34ZZT Treatment of a claim that partly relates to a public patient in a public hospital 34ZZU Treatment of a claim that relates to a series of incidents some of which occurred after the allied health termination date 34ZZV The amount of allied health exceptional claims indemnity that is payable 34ZZW How allied health exceptional claims indemnity is to be applied 34ZZX Who is liable to repay an overpayment of allied health exceptional claims indemnity? Subdivision D—Payments that would have reduced the amount paid out under the contract of insurance 34ZZY Amounts paid before payment of allied health exceptional claims indemnity 34ZZZ Amounts paid after payment of allied health exceptional claims indemnity 34ZZZA Obligation to notify the Chief Executive Medicare that amount has been paid 34ZZZB The Chief Executive Medicare to notify of amount of debt due 34ZZZC Penalty imposed if an amount is repaid late Subdivision E—Regulations may provide for payments 34ZZZD Regulations may provide for payments in relation to allied health exceptional claims 34ZZZE The Chief Executive Medicare may request information Subdivision F—Miscellaneous 34ZZZF Modifications and exclusions Division 3—Administration of the indemnity schemes Subdivision A—Introduction 35 Guide to this Division Subdivision B—Applications for, and payment of, indemnity scheme payments 36 Application for IBNR indemnity, high cost claim indemnity, run‑off cover indemnity or allied health high cost claim indemnity 37 Payment date for IBNR indemnity, high cost claim indemnity, run‑off cover indemnity or allied health high cost claim indemnity 37A Application for exceptional claims indemnity or allied health exceptional claims indemnity 37B Payment date for exceptional claims indemnity or allied health exceptional claims indemnity Subdivision C—Information gathering and record keeping 38 Chief Executive Medicare may request information 39 Main record keeping obligations 40 Certain insurers and MDOs to keep additional records Subdivision D—Overpayments of the indemnities 41 Recovery of overpayments Subdivision E—Recovery of repayment or overpayment debt 42 Chief Executive Medicare may collect money from a person who owes money to a person Division 4—Medical indemnity premium subsidy scheme 43 Regulations may provide for subsidy scheme 44 Chief Executive Medicare may request information 44B Chief Executive Medicare may notify run‑off cover credits Division 5—Offences 45 Failing to give information 46 Failing to notify 47 Failing to keep and retain records 47A Failing to include required information in invoices Division 6—Finance 48 Appropriation Division 7—Reinsurance contracts 49 Indemnity scheme payments disregarded for purposes of reinsurance contracts Division 8—Monitoring 50 Insurers may be required to provide information Part 2A—Universal cover obligation Division 1—Introduction 51 Guide to the universal cover obligation provisions 51A Winding up of medical indemnity insurer Division 2—Requirements in relation to providing professional indemnity cover 52 Division applies for the purposes of the AFCA scheme 52A Universal cover obligation 52B Medical indemnity insurer to notify of refusal 52C Risk surcharge requirements 52D Medical indemnity insurer may be required to offer interim cover until complaint is finalised Division 3—Records, reporting and information 53 Records 53A Failing to keep and retain records 53B Medical indemnity insurer must report annually 53C Failing to report 53D Secretary may request information 53E Failing to give information Part 3—Payments towards the cost of providing indemnities Division 2—Run‑off cover support payment Subdivision A—Introduction 57 Guide to the run‑off cover support payment provisions Subdivision B—Who pays run‑off cover support payment 58 Who is liable to pay the run‑off cover support payment 59 Exemptions Division 3—Administration of the run‑off cover support payments Subdivision A—Introduction 60 Guide to this Division Subdivision B—Payment and collection of run‑off cover support payments 61 When run‑off cover support payment must be paid 65 Late payment penalty 66 Method of paying certain amounts Subdivision C—Refunds 67 Refund of overpaid amounts Subdivision D—Recovery of payment debt 68 Recovery of payment debt 69 Chief Executive Medicare may collect money from a person who owes money to a person 70 Evidentiary certificates Subdivision E—Information gathering processes 71 Chief Executive Medicare may request information 72 Chief Executive Medicare must be notified of a change in circumstances etc. Division 4—Offences 73 Failing to give information 74 Failing to notify Part 4—Miscellaneous 75 General administration of this Act and medical indemnity payment legislation 76 Additional functions of the Chief Executive Medicare 76A Chief Executive Medicare may use computer programs to take administrative action 76B Delegation by Secretary 77 Officers to observe secrecy 78 Act not to apply in relation to State insurance within a State 78A Evaluation of medical indemnity market 79 Regulations 80 Rules Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to make provision in relation to indemnities in relation to the practice of medical professions and vocations, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Medical Indemnity Act 2002. 2 Commencement This Act commences, or is taken to have commenced, on 1 January 2003. 3 Objects of this Act and the medical indemnity payment legislation Availability of medical services (1) An object of this Act is to contribute towards the availability of medical services in Australia by providing Commonwealth assistance to support access by medical practitioners to arrangements that indemnify them for claims arising in relation to their practice of their medical professions. (2) The Commonwealth provides that assistance under this Act by: (a) meeting part of the costs of large settlements or awards paid by organisations that indemnify medical practitioners (but only for claims notified on or after 1 January 2003); and (aa) meeting the amounts by which settlements and awards exceed insurance contract limits, if those contract limits meet the Commonwealth's threshold requirements; and (ab) meeting the amounts payable in relation to certain claims (notified on or after 1 July 2004) against medical practitioners who are no longer in private medical practice; and (b) providing for a subsidy scheme to help certain medical practitioners meet the cost of their indemnity arrangements; and (c) meeting the cost associated with certain IBNR liabilities of organisations that indemnify medical practitioners to the extent to which those organisations had not made adequate provision for those liabilities as at 30 June 2002. Note: The acronym "IBNR" is used in this Act for "incurred but not reported". (3) The Commonwealth provides further assistance in relation to members and former members of UMP under a Medical Indemnity Agreement referred to in the Medical Indemnity Agreement (Financial Assistance—Binding Commonwealth Obligations) Act 2002. (3A) This Act also supports access by medical practitioners to arrangements that indemnify them for claims arising in relation to their practice of their medical professions by limiting when medical indemnity insurers can refuse to provide medical indemnity cover. (4) Another object of this Act (together with the medical indemnity payment legislation) is to allow the Commonwealth to recover the costs of providing the assistance referred to in paragraph (2)(ab) by requiring payments from medical indemnity insurers. Availability of other health services (5) Another object of this Act is to contribute towards the availability of certain health services in Australia by providing Commonwealth assistance to support access by persons who practise allied health professions to arrangements that indemnify them for claims arising in relation to their practices. (6) The Commonwealth provides that assistance under this Act by: (a) meeting part of the costs of large settlements or awards paid by organisations that indemnify persons who practise allied health professions; and (b) meeting the amounts by which settlements and awards exceed insurance contract limits, if those contract limits meet the Commonwealth's threshold requirements. 4 Definitions General (1) In this Act, unless the contrary intention appears: Actuary means the Australian Government Actuary. administrative action has the meaning given by subsection 76A(4). AFCA has the same meaning as in the Corporations Act 2001. affected medical practitioner has the meaning given by section 34ZQ. allied health exceptional claims indemnity means an allied health exceptional claims indemnity paid or payable under Division 2D of Part 2. Note: Amounts payable under regulations made for the purposes of section 34ZZZD (allied health exceptional claims payments) are not covered by this definition. allied health high cost claim indemnity means an allied health high cost claim indemnity paid or payable under Division 2C of Part 2. Note: Amounts payable under regulations made for the purposes of section 34ZZG (allied health high cost claims payments) are not covered by this definition. allied health high cost claim threshold has the meaning given by section 34ZZA. allied health profession means a profession that is: (a) a health profession within the meaning of the Health Practitioner Regulation National Law, other than the medical profession; or (b) specified in the rules. allied health termination date means the date, if any, set by rules under section 34ZZM. Chapter 5 body corporate means: (a) a body corporate that is a Chapter 5 body corporate within the meaning of the Corporations Act 2001; or (b) a body corporate to which a provisional liquidator has been appointed. Chief Executive Medicare has the same meaning as in the Human Services (Medicare) Act 1973. claim: (a) means a claim or demand of any kind (whether or not involving legal proceedings); and (b) includes proceedings of any kind including: (i) proceedings before an administrative tribunal or of an administrative nature; and (ii) disciplinary proceedings (including disciplinary proceedings conducted by or on behalf of a professional body); and (iii) an inquiry or investigation; and claim against a person includes an inquiry into, or an investigation of, the person's conduct. Note: Subsection (1A) extends the meaning of claim for the purposes of Division 2B of Part 2 (run‑off cover indemnity scheme). conducted appropriately: a defence of a claim against a person is conducted appropriately if, and only if: (a) to the extent it is conducted on the person's behalf by an insurer, or by a legal practitioner engaged by an insurer—the defence is conducted to a standard that is consistent with the insurer's usual standard for the conduct of the defence of claims; and (b) to the extent it is conducted by the person, or by a legal practitioner engaged by the person—the defence is conducted prudently. contribution year has the same meaning as in the Medical Indemnity (Run‑off Cover Support Payment) Act 2004. defence, of a claim against a person, includes any settlement negotiations on behalf of the person. eligible insurer has the meaning given in section 34ZZ. eligible MDO has the meaning given in section 34ZZ. eligible midwife has the same meaning as in the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. eligible related claims: see section 8A. eligible run‑off claim has the meaning given by section 34ZB. exceptional claims indemnity means an exceptional claims indemnity paid or payable under Division 2A of Part 2. Note: Amounts payable under regulations made for the purposes of section 34X (exceptional claims payments) are not covered by this definition. exceptional claims termination date means the date, if any, set by rules under section 34G. Federal Register of Legislation means the Federal Register of Legislation established under the Legislation Act 2003. health care related vocation means a health care related vocation in relation to which there is at least one State or Territory under the law of which a person must be registered in order to practise. Health Practitioner Regulation National Law means the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). health service means any service, care, treatment, advice or goods provided in respect of the physical or mental health of a person. high cost claim indemnity means a high cost claim indemnity paid or payable under Division 2 of Part 2. Note: Amounts payable under regulations made for the purposes of section 34AA (high cost claims payments) are not covered by this definition. high cost claim threshold has the meaning given by section 29. IBNR exposure has the meaning given by section 8. IBNR indemnity means an IBNR indemnity paid or payable under Division 1 of Part 2. Note: Amounts payable under regulations made for the purposes of section 27A (IBNR claims payments) are not covered by this definition. incident means any incident (including any act, omission or circumstance) that occurs, or that is claimed to have occurred, in the course of, or in connection with, the provision of a health service. incident‑occurring based cover has the meaning given by section 7. indemnify has a meaning affected by subsection (2). indemnity scheme payment means: (a) an IBNR indemnity; or (b) a high cost claim indemnity; or (c) an exceptional claims indemnity; or (d) a run‑off cover indemnity; or (e) an allied health high cost claim indemnity; or (f) an allied health exceptional claims indemnity. insurance business has the same meaning as in the Insurance Act 1973. insurer means a person who carries on insurance business. insurer‑to‑insurer payment means a payment that: (a) is made by an MDO or insurer to an MDO or an insurer; and (b) is not made by the MDO or insurer on behalf of another person. invoice includes: (a) any document issued by an MDO to a person (whether or not the person is already a member of the MDO) that contains a quote for the amount of subscription that is or would be payable by that person for membership of the MDO; and (b) any document issued by a medical indemnity insurer to a person (whether or not the medical indemnity insurer already provides medical indemnity cover to the person) that contains a quote for the amount of premium that is or would be payable by that person for provision of such cover. late payment penalty: (a) in relation to an amount repayable under section 24—means a penalty payable under section 27; and (aa) in relation to a debt owed under section 34T—means a penalty payable under section 34W; and (ab) in relation to a debt owed under section 34ZJ—means a penalty payable under section 34ZM; and (ac) in relation to a debt owed under section 34ZZZ—means a penalty payable under section 34ZZZC; and (b) in relation to a run‑off cover support payment—means a penalty payable under section 65. legal practitioner means a person who is enrolled as a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of: (a) a federal court; or (b) a court of a State or Territory. MDO has the meaning given by section 5. medical indemnity cover: a contract of insurance provides medical indemnity cover for a person if: (a) the person is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends; and (b) the insurance cover indemnifies the person (subject to the terms and conditions of the contract) in relation to claims that may be made against the person in relation to incidents that occur or occurred in the course of, or in connection with, the practice by the person of a medical profession. Note: A single contract of insurance may provide medical indemnity cover for more than one person. medical indemnity insurer means: (a) a body corporate authorised under section 12 of the Insurance Act 1973 that; or (b) a Lloyd's underwriter within the meaning of that Act who; in carrying on insurance business in Australia, enters into contracts of insurance providing medical indemnity cover for other persons. medical indemnity payment legislation means the Medical Indemnity (Run‑off Cover Support Payment) Act 2004. medical practitioner means a person registered or licensed as a medical practitioner under a State or Territory law that provides for the registration or licensing of medical practitioners. Note: Subsection (6) gives this definition an extended meaning in Division 2B or 4 of Part 2. medical profession includes a health care related vocation. medicare program has the same meaning as in the Human Services (Medicare) Act 1973. member of an MDO has the meaning given by section 6. midwife insurer means an insurer that is an eligible insurer within the meaning of the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. midwife professional indemnity cover has the same meaning as in the Midwife Professional Indemnity (Commonwealth Contribution) Scheme Act 2010. participating MDO means UMP. payment made in relation to a claim has (other than in Divisions 2A and 2D of Part 2) the meaning given by subsections (3) and (4). practitioner's contract limit, in relation to a person for whom a contract of insurance provides medical indemnity cover, means the maximum amount payable, in aggregate, by the insurer under the contract in relation to claims against the person. Note 1: If the contract provides medical indemnity cover for more than one person, there must be a separate contract limit for each of those persons. Note 2: For how this definition applies if the contract provides for deductibles, see section 8B. Note 3: For how this definition interacts with the high cost claim indemnity scheme and the allied health high cost claim indemnity scheme, see sections 34D and 34ZZJ. private medical practice means practice as a medical practitioner, other than: (a) practice consisting of treatment of public patients in a public hospital; or (b) practice for which: (i) the Commonwealth, a State or a Territory; or (ii) a local governing body; or (iii) an authority established under a law of the Commonwealth, a State or a Territory; indemnifies medical practitioners from liability relating to compensation claims (within the meaning of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003); or (c) practice conducted wholly outside both Australia and the external Territories; or (d) practice of a kind specified in the rules. professional indemnity cover: a contract of insurance with a medical practitioner provides professional indemnity cover if it provides medical indemnity cover for the practitioner in relation to the practitioner's private medical practice. provable: an amount that an MDO or insurer is liable to pay is provable if: (a) it is provable in the winding up of the MDO or insurer if the winding up of the MDO or insurer has commenced; or (b) it would be provable in the winding up of the MDO or insurer if the MDO or insurer were to be wound up. public hospital means a recognised hospital within the meaning of the Health Insurance Act 1973. public patient has the same meaning as in the Health Insurance Act 1973. qualifying allied health claim certificate means a certificate issued by the Chief Executive Medicare under section 34ZZK. qualifying allied health liability, in relation to a claim, has the meaning given by section 34ZZS. qualifying allied health payment: see subsection 34ZZB(4). qualifying claim certificate means a certificate issued by the Chief Executive Medicare under section 34E. qualifying liability, in relation to a claim, has the meaning given by section 34M. qualifying payment: see subsection 30(2). related body corporate has the same meaning as in the Corporations Act 2001. relevant allied health threshold: see subsection 34ZZL(1). relevant threshold: see subsection 34F(1). risk surcharge has the meaning given by subsection 52C(1). rules means the rules made under section 80. run‑off cover credit has the meaning given by subsection 34ZS(2). run‑off cover indemnity means a run‑off cover indemnity paid or payable under Division 2B of Part 2. Note: Amounts payable under regulations made for the purposes of section 34ZN (run‑off claims payments) are not covered by this definition. run‑off cover support payment means a payment payable under Division 2 of Part 3. Secretary means the Secretary of the Department. subject to appeal: a judgment or order is subject to appeal until: (a) any applicable time limits for lodging an appeal (however described) against the judgment or order have expired; and (b) if there is such an appeal against the judgment or order—the appeal (and any subsequent appeals) have been finally disposed of. total run‑off cover credit has the meaning given by section 34ZS. UMP means United Medical Protection Limited. Notifications by practitioners may constitute claims (1A) A reference in Division 2B of Part 2 to a claim includes a reference to a notification by or on behalf of a person of an incident, or a series of related incidents, if: (a) at the time of the incident, or one or more of the incidents, the person was a medical practitioner; and (b) the notification is to a medical indemnity insurer or an MDO; and (c) at the time of the notification: (i) a contract of insurance with the insurer provided the person with medical indemnity cover; or (ii) an arrangement with the MDO provided medical indemnity cover (within the meaning of the Medical Indemnity (Prudential Supervision and Product Standards) Act 2003) for the person; and the cover would have indemnified the person in relation to any claim relating to the incident, or series of incidents, if the claim had been made at the time of the notification. The notification is taken, for the purposes of Division 2B of Part 2, to be a claim against the person. Indemnifying (2) To avoid doubt, a person may, for the purposes of this Act, indemnify someone else by either: (a) making a payment; or (b) agreeing to make a payment. Note: A person may indemnify someone else by making a payment even if the payment was not preceded by an agreement to pay. Payments in relation to claims (3) For the purposes of this Act (other than Divisions 2A and 2D of Part 2): (a) a payment is made in relation to a claim against a person if and only if the payment is made to: (i) satisfy or settle the claim; or (ii) meet legal and other expenses that are directly attributable to any negotiations, arbitration or proceedings in relation to the claim; and (b) a payment is made in relation to a claim by a person if and only if the payment is made to meet legal and other expenses that are directly attributable to any negotiations, arbitration or proceedings in relation to the claim. (4) A reference in this Act (other than Divisions 2A and 2D of Part 2) to a payment being made to satisfy or settle a claim against a person includes a reference to a payment that: (a) is made to reimburse the person for a payment the person has made to satisfy or settle the claim; or (b) is made to the person so that the person can make a payment to satisfy or settle the claim. Changes in body corporate names (5) A reference in this Act to a body corporate by a particular name is a reference to the body corporate that had that name on 30 June 2002. Medical practitioners (6) A reference in Division 2B or 4 of Part 2 to a medical practitioner includes a reference to a person who has been a medical practitioner. 5 Medical defence organisation (MDO) (1) An MDO is a body corporate that is an MDO under subsection (2) or (3) or rules made for the purposes of subsection (4). (2) Subject to rules made for the purposes of subsection (5), a body corporate is an MDO if: (a) the body corporate is incorporated by or under a law of the Commonwealth, a State or a Territory; and (b) the body corporate was in existence on 30 June 2002; and (c) the body corporate, in the ordinary course of its business as at 30 June 2002, indemnified persons in relation to claims in relation to incidents that occurred in the course of, or in connection with, the practice of a medical profession by the persons; and (d) did so only if the persons were one of the following: (i) members or former members of the body corporate; (ii) the legal personal representatives of members or former members of the body corporate. This is so even if the indemnity is one that is provided at the body corporate's discretion. (3) Subject to rules made for the purposes of subsection (5), each of the bodies corporate listed in the following table is an MDO: MDOs Medical Defence Association of South Australia Limited Medical Defence Association of Victoria Limited Medical Defence Association of Western Australia (Incorporated) Medical Indemnity Protection Society Limited Medical Protection Society of Tasmania Inc. Queensland Doctors Mutual Limited United Medical Protection Limited (4) The rules may provide that a body corporate specified in the rules is an MDO. (5) The rules may provide that a body corporate specified in the rules is not an MDO for the purposes of this Act. 6 Member of an MDO (1) A person is a member of an MDO: (a) at all times when the person is a member of the MDO according to the MDO's constitution; and (b) no matter how the person's membership is described. (2) Without limiting paragraph (1)(a), a person does not cease to be a member of an MDO merely because some or all of the person's rights and privileges as a member are suspended, have lapsed or have ceased. (3) Without limiting paragraph (1)(b), a person is a member of an MDO even if the person is described by the MDO's constitution as: (a) an associate member; or (b) an honorary member; or (c) a non‑financial member; or (d) a retired member; or (e) a student member. 7 Incident‑occurring based cover (1) A person had incident‑occurring based cover for an incident with an MDO on 30 June 2002 if: (a) an arrangement between the MDO and the person, or between the MDO and someone else, existed on 30 June 2002; and (b) under the arrangement, the MDO: (i) would have been able to indemnify the person in relation to the incident if the person were to make a proper claim after 30 June 2002 in relation to the incident; and (ii) would have been able, in the ordinary course of its business, to indemnify the person in relation to the incident even if the person had ceased to be a member of the MDO when the claim was made. The person need not have been a member of the MDO on 30 June 2002 to have incident‑occurring based cover for the incident. Note: Subparagraph (b)(ii)—If the only cover the person had with the MDO was claims made cover, it would not be in the ordinary course of the MDO's business to indemnify the person if the claim was made after the person had ceased to be a member of the MDO. (2) Subparagraph (1)(b)(i) is satisfied even if the MDO would be able to indemnify the person in relation to the incident only if the person were to make a claim during a limited period after 30 June 2002. (2A) For the purposes of subparagraph 34ZB(1)(e)(ii), a person has incident‑occurring based cover if, under an arrangement between an MDO and the person, the MDO: (a) would be able to indemnify the person in relation to an incident if the person were to make a proper claim in relation to the incident; and (b) would be able, in the ordinary course of its business, to indemnify the person in relation to the incident even if the person had ceased to be a member of the MDO when the claim was made. (3) To avoid doubt, cover may be incident‑occurring based cover even if it is called: (a) claims incurred cover; or (b) extended reporting benefit cover (ERB cover); or (c) death, disability or retirement cover (DDR cover). 8 IBNR exposure of an MDO (1) An MDO's IBNR exposure at a particular time is the total amount, at that time, of the payments that the MDO is likely to have to make after that time in relation to all claims that relate to incidents that satisfy subsection (2). (2) An incident satisfies this subsection if: (a) the incident occurred on or before 30 June 2002; and (b) the incident occurred in the course of, or in connection with, the practice of a medical profession by a person; and (c) on 30 June 2002, the person had incident‑occurring based cover with the MDO for the incident; and (d) the MDO: (i) was not notified of the occurrence of the incident; and (ii) was not notified of any claim against or by the person in relation to the incident; before 1 July 2002. 8A Eligible related claims (1) A claim or claims are eligible related claims in relation to a claim for which an application for a high cost claim indemnity or allied health high cost claim indemnity is made if: (a) all the claims are made against the same person; and (b) all the claims are made in relation to the same incident or series of related incidents; and (c) either: (i) all the claims are part of the same class action or representative proceeding; or (ii) the incident, or series of related incidents, occurred in connection with a pregnancy or the birth of a child or children; and (d) the application is the only application for a high cost claim indemnity or allied health high cost claim indemnity that has been made in relation to any of the claims; and (e) none of the claims are eligible related claims in relation to another claim for which an application for a high cost claim indemnity or allied health high cost claim indemnity has been made. (2) For the purposes of paragraphs (1)(d) and (e), disregard an application if it is withdrawn before payment is made in relation to the application. 8B Treatment of deductibles for the exceptional claims indemnity scheme and the allied health exceptional claims indemnity scheme (1) This section applies if, under a contract of insurance that provides medical indemnity cover for a person (the practitioner), the insurer is entitled to count an amount (the deductible amount): (a) incurred by the insurer in relation to a claim against the practitioner; or (b) paid or payable by the practitioner or another person in relation to a claim against the practitioner; towards the maximum amount payable, in aggregate, under the contract in relation to claims against the practitioner, even though the insurer has not paid, and is not liable to pay, the amount under the contract. (2) For the purpose of the definition of practitioner's contract limit in subsection 4(1), the maximum amount payable, in aggregate, under the contract in relation to claims against the practitioner is as stated in the contract, even though the insurer (because of the deductible amount) may not actually be liable to pay the whole of that maximum amount. (3) For the purpose of the references in paragraphs 34L(1)(e) and (f) and 34ZZR(1)(e) and (f) to an amount that an insurer has paid or is liable to pay under a contract of insurance, the deductible amount is to be counted as if it were an amount that the insurer has paid or is liable to pay under the contract. (4) However, for the purpose of the references in paragraphs 34L(1)(e) and 34ZZR(1)(e) to an amount that an insurer would have been liable to pay under a contract of insurance, the deductible amount is not to be counted as if it were an amount that the insurer would have been liable to pay under the contract. 9 External Territories This Act extends to every external Territory. Part 2—Commonwealth payments Division 1—IBNR (incurred but not reported) indemnity scheme Subdivision A—Introduction 10 Guide to the IBNR indemnity provisions (1) This Division provides that an IBNR indemnity may be paid to an MDO or insurer that makes, or is liable to make, a payment in relation to a claim against or by a person in relation to an incident that is covered by the IBNR indemnity scheme. The incident will only be covered by the scheme if, amongst other things, the person had incident‑occurring based cover with the participating MDO for the incident on 30 June 2002. (1A) This Division also provides for the regulations and rules to deal with other matters relating to incidents covered by the IBNR indemnity scheme. (2) The following table tells you where to find the provisions dealing with various issues: Where to find the provisions on various issues Item Issue Provisions 1 which MDO is the participating MDO? definition of participating MDO in subsection 4(1) 2 which incidents are covered by the scheme? section 14 3 what conditions must be satisfied for an MDO or insurer to get the IBNR indemnity? sections 15 to 19 4 what happens if the incidents occurred during the treatment of a public patient in a public hospital? paragraph 19(a) and section 20 5 how much is the IBNR indemnity? section 21 6 in what circumstances can a payment to an MDO or insurer lead to a repayment of the IBNR indemnity? sections 24 to 27 6A what regulations can deal with section 27A 7 how do MDOs and insurers apply for the IBNR indemnity? section 36 8 when will the IBNR indemnity be paid? section 37 9 what information has to be provided to the Chief Executive Medicare about IBNR indemnity matters? sections 27C and 38 10 what records must MDOs and insurers keep? sections 39 and 40 11 how are overpayments of the IBNR indemnity, and indemnity repayments, recovered? sections 41 and 42 Subdivision C—Incidents covered by the IBNR indemnity scheme 14 Incidents covered by the IBNR indemnity scheme The IBNR indemnity scheme covers an incident if: (a) the incident occurred on or before 30 June 2002; and (b) the incident occurred in the course of, or in connection with, the practice of a medical profession by a person; and (c) on 30 June 2002, the person had incident‑occurring based cover with an MDO for the incident; and (d) the MDO: (i) was not notified of the occurrence of the incident; and (ii) was not notified of any claim against or by the person in relation to the incident; before 1 July 2002; and (e) the MDO is the participating MDO. Subdivision D—IBNR indemnity 15 IBNR indemnity may be payable under either section 16 or 17 (1) An IBNR indemnity may be payable to an MDO or insurer under either section 16 or 17. (2) To avoid doubt, an IBNR indemnity may be payable to an MDO or insurer under section 16 even if the MDO or insurer is a Chapter 5 body corporate. (3) An IBNR indemnity is not payable to an MDO or insurer under section 16 in relation to a payment the MDO or insurer makes to discharge a liability in relation to a claim if an IBNR indemnity is paid to the MDO or insurer under section 17 in relation to the same liability. 16 IBNR indemnity for payment made by MDO or insurer Basic payability rule (1) An IBNR indemnity is payable to an MDO or insurer under this section if: (a) the MDO or insurer makes a payment in relation to a claim against or by a person (the practitioner); and (b) the claim relates to: (i) an incident that is covered by the IBNR indemnity scheme (see section 14); or (ii) a series of related incidents that includes an incident that is covered by the scheme; and (c) the practitioner had, on 30 June 2002, incident‑occurring based cover with the participating MDO for the incident that is covered by the IBNR indemnity scheme; and (d) if it is an MDO that makes the payment—the MDO makes the payment: (i) consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and (ii) in the ordinary course of its business; and (e) if it is an insurer that makes the payment—the insurer makes the payment: (i) consistently with the terms of the insurance contract between the insurer and the practitioner; and (ii) in the ordinary course of its business; and (f) the MDO or insurer applies to the Chief Executive Medicare for the IBNR indemnity in accordance with section 36. (2) Subsection (1) has effect subject to: (a) subsections (5) and (6) of this section; and (b) subsection 15(3); and (c) sections 19 and 20. Basis on which payment made (3) The IBNR indemnity is payable to the MDO or insurer regardless of the basis on which the payment is made by the MDO or insurer. Note: If the criteria for the indemnity set out in subsection (1) are met, the indemnity may be payable to the MDO or insurer even if the MDO or insurer pays the practitioner on the basis of claims made cover the practitioner has with the MDO or insurer. Payer need not be the participating MDO (4) If the payment is made by an MDO, the MDO that makes the payment may be the participating MDO or may be a different MDO. Payment by participating MDO (5) If the payment is made by the participating MDO, the IBNR indemnity is payable only if the participating MDO: (a) makes the payment; or (b) could have made the payment; in relation to the claim in relation to the incident covered by the IBNR indemnity scheme on the basis of incident‑occurring based cover the practitioner had with the participating MDO for the incident on 30 June 2002. Payment by someone else (6) If the payment is not made by the participating MDO, the IBNR indemnity is payable only if the participating MDO could have made the payment in relation to the claim in relation to the incident covered by the IBNR indemnity scheme: (a) consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and (b) in the ordinary course of its business; and (c) on the basis of incident‑occurring based cover the practitioner had with the participating MDO on 30 June 2002; if the practitioner made a proper claim in relation to the incident. 17 IBNR indemnity for MDO or insurer in external administration Basic payability rule (1) An IBNR indemnity is payable under this section to an MDO or insurer that is a Chapter 5 body corporate if: (a) the MDO or insurer is liable to pay an amount in relation to a claim against or by a person (the practitioner); and (b) the claim relates to: (i) an incident that is covered by the IBNR indemnity scheme (see section 14); or (ii) a series of related incidents that includes an incident that is covered by the scheme; and (c) the practitioner had, on 30 June 2002, incident‑occurring based cover with the participating MDO for the incident that is covered by the IBNR indemnity scheme; and (d) the amount that the MDO or insurer is liable to pay is provable; and (e) if it is an MDO that is liable to pay the amount—the MDO could pay the amount: (i) consistently with its constitution and the indemnity arrangement between the MDO and the practitioner; and (ii) in the ordinary course of its business; if it were not a Chapter 5 body corporate; and (f) if it is an insurer that is liable to make the payment—the insurer could make the payment: (i) consistently with the terms of the insurance contract between the insurer and the practitioner; and (ii) in the ordinary course of its business; if it were not a Chapter 5 body corporate; and (g) the MDO or insurer applies to the Chief Executive Medicare for the IBNR indemnity in accordance with section 36. (2) Subsection (1) has effect subject to: (a) subsections (5) and (6) of this section; and (b) sections 19 and 20. Basis for liability to pay (3) The IBNR indemnity is payable to the MDO or insurer regardless of the basis on which the amount is payable by the MDO or insurer. Note: If the criteria for the indemnity set out in subsection (1) are met, the indemnity may be payable to the MDO or insurer even if the MDO or insurer is liable to pay on the basis of claims made cover the practitioner has with the MDO or insurer. Person liable to pay need not be participating MDO (4) If an MDO is liable to pay the amount, the MDO that is liable to pay the amount may be the participating MDO or may be a different MDO. Participating MDO liable to pay (5) If the amount is one that the participating MDO is liable to pay, the IBNR indemnity is payable only if the participating MDO could have paid the amount in relation to the claim in relation to the incident covered by the IBNR indemnity scheme on the basis of incident‑occurring based cover the practitioner had with the participating MDO on 30 June 2002. Someone else liable to pay (6) If the amount is not one that the participating MDO is liable to pay, the IBNR indemnity is payable only if the participating MDO could have paid an amount in relation to the claim in relation to the incident covered by the IBNR indemnity scheme: (a) consistently with its constitution and the indemnity arrangement between the participating MDO and the practitioner; and (b) in the ordinary course of its business; and (c) on the basis of incident‑occurring based cover the practitioner had with the participating MDO on 30 June 2002; if the practitioner made a proper claim in relation to the incident. Indemnity to be paid on trust (7) An IBNR indemnity paid to an MDO or insurer under this section is paid on trust for the benefit of the person to whom the MDO or insurer is liable to make the payment referred to in paragraph (1)(a). 18 Clarification of circumstances in which IBNR indemnity payable An IBNR indemnity is payable to an MDO or insurer under section 16 or 17 in relation to a payment the MDO or insurer makes, or is liable to make, in relation to a claim even if: (a) the MDO or insurer: (i) has insured itself in relation to the payment; or (ii) has already in fact been paid an amount by an insurer in relation to the payment; or (b) the incident to which the claim relates occurred outside Australia; or (c) the MDO or insurer made, or became liable to make, the payment before the commencement of this Act. 19 Exceptions An IBNR indemnity is not payable to an MDO or insurer under section 16 or 17 in relation to a payment the MDO or insurer makes, or is liable to make, in relation to a claim against a person if: (a) the incident, or all the incidents, to which the claim relates occurred in the course of the provision of treatment to a public patient in a public hospital; or (c) the payment is an insurer‑to‑insurer payment; or (ca) a run‑off cover indemnity is payable to the MDO or insurer in relation to the same claim; or (d) the payment is a payment specified in the rules for the purposes of this section. 20 Payment partly related to treatment of public patient in public hospital (1) This section applies if: (a) an MDO or insurer makes, or is liable to make, a payment in relation to a claim against a person in relation to a series of related incidents; and (b) some, but not all, of the incidents occurred in the course of the provision of treatment to a public patient in a public hospital. (2) For the purposes of this Subdivision: (a) the payment is to be disregarded to the extent to which it relates to, or is reasonably attributable to, the incident or incidents that occurred in the course of the provision of treatment to a public patient in a public hospital; and (b) any amount that is paid or payable to the MDO or insurer in relation to the payment is to be disregarded to the extent to which it relates to, or is reasonably attributable to, the incident or incidents that occurred in the course of the provision of treatment to a public patient in a public hospital. Note: Paragraph (b)—see subsection 21(2). 21 Amount of the IBNR indemnity (1) The amount of the IBNR indemnity is the adjusted amount of the payment determined in accordance with subsection (2). Note: In certain circumstances, an amount may be repayable under section 24. (2) The adjusted amount of the payment is the amount obtained by deducting from the amount the MDO or insurer pays, or is liable to pay, the amount, or the sum of the amounts, that are: (a) paid; or (b) payable and liquidated at the time the amount of the IBNR indemnity is worked out; to the MDO or insurer in relation to the payment the MDO or insurer makes or is liable to make. (3) Without limiting subsection (2), the amounts to be deducted under that subsection include: (a) any high cost claim indemnity that is paid or payable to the MDO or insurer in relation to the payment the MDO or insurer makes or is liable to make; and (b) any amount that is paid or payable to the MDO or insurer because of a right to which the MDO or insurer is subrogated; and (c) the amount of any payment specified in the rules. (4) The following amounts are not to be deducted under subsection (2): (a) any amount that is paid or payable to the MDO or insurer by way of an insurer‑to‑insurer payment; (b) any amount that is paid or payable to the MDO or insurer by way of membership subscription or insurance premium; (c) any amount that is payable under this Division; (d) the amount of any payment specified in the rules. Subdivision E—Recovery of amount paid to MDO or insurer after IBNR indemnity paid 24 Recovery if certain amounts paid to MDO or insurer after IBNR indemnity paid (1) An MDO or insurer must repay an amount to the Commonwealth if: (a) an IBNR indemnity has been paid to the MDO or insurer in relation to a claim against or by a person in relation to an incident; and (b) an amount is paid to the MDO or insurer in relation to the payment the MDO or insurer made in relation to the incident; and (c) that amount was not taken into account in calculating the amount of the IBNR indemnity paid to the MDO or insurer; and (d) the amount is not an amount referred to in subsection 21(4); and (e) the Chief Executive Medicare gives the MDO or insurer a notice in relation to the amount under section 26. (2) The amount to be repaid is the amount referred to in paragraph (1)(b). (4) The amount to be repaid is a debt due to the Commonwealth. (5) The amount to be repaid may be recovered: (a) by action by the Chief Executive Medicare against the MDO or insurer in a court of competent jurisdiction; or (b) by deduction from the amount of an indemnity scheme payment payable to the MDO or insurer; or (c) under section 42. The total amount recovered must not exceed the amount to be repaid. 25 MDO or insurer to inform Chief Executive Medicare of certain amounts (1) If: (a) an IBNR indemnity is paid to an MDO or insurer in relation to a claim against or by a person in relation to an incident; and (b) an amount to which section 24 applies is paid to the MDO or insurer; the MDO or insurer must notify the Chief Executive Medicare that the amount has been paid to the MDO or insurer. Note: Failure to notify is an offence (see section 46). (2) The notification must: (a) be in writing; and (b) be given to the Chief Executive Medicare within 28 days after the day on which the amount is paid to the MDO or insurer. 26 Chief Executive Medicare to notify MDO or insurer of repayable amount (1) If an amount to which section 24 applies is paid to an MDO or insurer, the Chief Executive Medicare may give the MDO or insurer a written notice that specifies: (a) the amount that is repayable to the Commonwealth; and (b) the day before which the amount must be repaid to the Commonwealth; and (c) the effect of section 27. The day specified under paragraph (b) must be at least 28 days after the day on which the notice is given. (2) The amount becomes due and payable on the day specified under paragraph (1)(b). 27 Penalty imposed if an amount is repaid late (1) If: (a) an MDO or insurer must repay an amount to the Commonwealth under section 24; and (b) the amount remains wholly or partly unpaid after it becomes due and payable; the MDO or insurer is liable to pay a late payment penalty under this section. (2) The late payment penalty is calculated: (a) at the rate specified in the rules; and (b) on the unpaid amount; and (c) for the period: (i) starting when the amount becomes due and payable; and (ii) ending when the amount, and the penalty payable under this section in relation to the amount, have been paid in full. (3) The Chief Executive Medicare may remit the whole or a part of an amount of late payment penalty if the Chief Executive Medicare considers that there are good reasons for doing so. (4) An application may be made to the Administrative Review Tribunal for review of a decision of the Chief Executive Medicare not to remit, or to remit only part of, an amount of late payment penalty. Note: Section 266 of the Administrative Review Tribunal Act 2024 requires notification of a decision that is reviewable. Subdivision F—Regulations may provide for payments 27A Regulations may provide for payments in relation to IBNR claims (1) The regulations may provide in relation to: (a) making payments to MDOs and insurers of claim handling fees; and (b) making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise); in respect of claims relating to incidents covered by the IBNR indemnity scheme (see section 14). (2) Without limiting subsection (1), the regulations may: (a) make provision for: (i) the conditions that must be satisfied for an amount to be payable to an MDO or insurer; and (ii) the amount that is payable; and (iii) the conditions that must be complied with by an MDO or insurer to which an amount is paid; and (iv) other matters related to the making of payments, and the recovery of overpayments; and (b) provide that this Division applies with specified modifications in relation to a liability that relates to costs in relation to which an amount has been paid under regulations made for the purposes of this section; and (c) make provision for making payments on account of legal, administrative or other costs incurred by MDOs and insurers (whether on their own behalf or otherwise), in respect of incidents notified to MDOs and insurers that could give rise to claims in relation to which an IBNR indemnity could be payable. (3) Paragraph (2)(b) does not allow the regulations to modify a provision that creates an offence, or that imposes an obligation which, if contravened, constitutes an offence. (3A) It does not matter for the purposes of paragraph (2)(c) whether claims are subsequently made in relation to the incidents referred to in that paragraph. 27B The Chief Executive Medicare may request information (1) If the Chief Executive Medicare believes that a person is capable of giving information that is relevant to determining: (a) whether an MDO or insurer is entitled to a payment under regulations made for the purposes of section 27A; or (b) the amount that is payable to an MDO or insurer under regulations made for the purposes of section 27A; the Chief Executive Medicare may request the person to give the Chief Executive Medicare the information. Note: Failure to comply with the request is an offence (see section 45). (2) Without limiting subsection (1), any of the following persons may be requested to give information under that subsection: (a) an MDO; (b) an insurer; (c) a member or former member of an MDO; (d) a person who practises, or used to practise, a medical profession; (e) a person who is acting, or has acted, on behalf of a person covered by paragraph (d); (f) a legal personal representative of a person covered by paragraph (c), (d) or (e). (3) Without limiting subsection (1), if the information sought by the Chief Executive Medicare is information relating to a matter in relation to which a person is required by section 39 to keep a record, the Chief Executive Medicare may request the person to give the information by giving the Chief Executive Medicare the record, or a copy of the record. (4) The request: (a) must be made in writing; and (b) must state what information must be given to the Chief Executive Medicare; and (c) may require the information to be verified by statutory declaration; and (d) must specify a day on or before which the information must be given; and (e) must contain a statement to the effect that a failure to comply with the request is an offence. The day specified under paragraph (d) must be at least 28 days after the day on which the request was made. Subdivision G—IBNR exposure 27C Process for annually reassessing IBNR exposure Report by the Actuary (1) For each financial year, the Actuary must give the Minister a written report that: (a) states the Actuary's assessment of the participating MDO's IBNR exposure as at the end of the financial year; and (b) sets out the reasons for the assessment. (2) In preparing the report, the Actuary must take into account any information that the Chief Executive Medicare gives the Actuary in relation to the participating MDO under subsection (6). Chief Executive Medicare's information gathering powers (3) If the Chief Executive Medicare believes on reasonable grounds that the participating MDO is capable of giving information that is relevant to assessing the participating MDO's IBNR exposure as at the end of a financial year, the Chief Executive Medicare may request the participating MDO to give the Chief Executive Medicare the information. Note: Failure to comply with the request is an offence (see section 45). (4) Without limiting subsection (3), the kind of information that may be requested includes information in the form of: (a) financial statements; and (b) a report prepared by a suitably qualified actuary assessing the participating MDO's IBNR exposure as at the end of a financial year. (5) The request: (a) must be made in writing; and (b) must state what information the participating MDO is to give to the Chief Executive Medicare; and (c) may require the information to be verified by statutory declaration; and