BB 2020/062
Answer
Yes, provided certain criteria are met.
Context
How can I obtain the patient’s signature consenting to bulk billing over a phone call, through a telehealth video consultation or in circumstances where the patient is not required to be physically present such as case conferences?
This answer explains the intersection between the Health Insurance Act 1973 and the Electronic Transactions Act 1999 to explain why any form of digital signature on the DB4 is valid, providing certain criteria are met.
Relevant legislative provisions
Health Insurance Act 1973, Section 20B (3)
Electronic Transactions Act 1999, Section 10
Electronic Transactions Regulations 2000, Schedule 1
Other relevant materials
1. The application of the Electronic Transactions Act 1999 (ETA) is explained well on the Commonwealth Attorney-General’s website at this link, which states (my underlining):
“The Electronic Transactions Act 1999 ensures that a transaction under a Commonwealth law will not be invalid simply because it was conducted through electronic communication.
If a Commonwealth law requires you to:
- give information in writing
- provide a handwritten signature
- produce a document in material form
- record or retain information
the Electronic Transactions Act means you can do these things electronically.
The Act applies to all laws of the Commonwealth unless they are specifically exempted by the Electronic Transactions Regulations 2000.”
2. Helpful legal briefing notes from the Attorney General’s department can be accessed here.
Case law
Getup Ltd v Electoral Commissioner [2010] FCA 869
Bendigo and Adelaide Bank Ltd & Ors v Kenneth Ross Pickard & Anor [2019] SASC 123 (the Pickard Case)
Departmental interpretation
“Even though you and the patient aren’t at the same location during a telehealth video consultation, under section 20A of the Health Insurance Act 1973 the patient’s signature is still needed…
There are 3 ways you can get the patient’s signature:
- You can send the completed … (DB4) to the patient to sign and return to you.
- You can get an email agreement from the patient.
- The practitioner supporting the patient during the telehealth consultation can ask the patient to sign the … (DB4) and return it to you. An example of this is where a patient is using the local GP’s surgery for the telehealth consultation – when the patient signs the (assignment of benefit) form, the GP sends it to the provider performing the telehealth service.
… This process complies with section 10 of the Electronic Transactions Act 1999, which outlines the steps to be taken for an electronic signature to be recognised.” (Accessed 14 June 2020 at this link)
Detailed reasoning
The ETA is a short Act that applies to all laws of the Commonwealth.
It has only 16 sections and a schedule and was drafted with future proofing front of mind, mindful of emerging new forms of electronic signatures in the future. The three key principles described in the ETA to ensure electronic signatures are valid are:
- Identity – parties must clearly identify themselves and their intentions
- Reliability – the form of digital signature must be as reliable as is appropriate in the circumstances
- Consent – the recipient must consent to the use of an electronic signature for the purpose
In terms of a working definition of an electronic signature, it does not need to be an electronic or digital version of a traditionally styled signature. Any visible representation of a person’s name or mark indicating they put their mind to the contents of a document is sufficient.
The Health Insurance Act 1973 comes within the scope of the ETA because it is a law of the Commonwealth, being an Act of the Commonwealth Parliament with regulations made under it.
Section 20B (3) of the Health Insurance Act 1973 states that the patient signature on the bulk bill form (DB4) is a legal requirement. For a detailed explanation of this requirement please read answer BB 2020/061.
The ETA regulations set out certain exemptions. These are areas of law where the government still requires a manual, penned signature to provide more robust proof that a person physically signed something. The list of exempt Commonwealth legislation is in Schedule 1 of the ETA regulations.
Section 20B (3) of the Health Insurance Act 1973 is not in the exemption list and therefore, the ETA applies to it, and electronic signatures are legal and valid on DB4 forms.
This also aligns with the Department’s position that the DB4 form does not need to be retained. It would make no sense at all to have a situation where Medicare sought an exemption from the ETA to force an in person penned signature that they themselves do not require providers retain.
You will note in the Departmental Interpretation above that Medicare specifically references the ETA.
In addition to the ETA, there is a now a good body of Australian case law supporting the validity of electronic signatures in most circumstances. The Pickard Case cited above is an example of where a court held that an electronic signature was not a valid method of attesting a Deed. However, whilst this is an important case on the topic of electronic signatures in Australia more broadly, the reasoning and outcomes do not apply to bulk billing because the DB4 form is not a Deed.
There are also separate State laws relating to electronic signatures, none of which apply to bulk billing, because the Health Insurance Act is a Commonwealth law.
Examples and other relevant information
For any bulk billed service, you can send the patient a completed DB4 form and request their consent to being bulk billed. If they consent, they can sign and return the DB4 to you. Only once you have received the signed consent back from the patient can you submit the electronic bulk billed claim.
You can also follow any of the three methods described above under Departmental Interpretation.
During Covid-19 special provisions have been made. Please read the Covid-19 Bulletins on the Synapse website here, here and here to understand those specific requirements.
Who this applies to
Everyone who bulk bills
When this applies
From 1 July 2001 when the ETA came into force