Is a pharmacist a medical practitioner?

Is a pharmacist a medical practitioner?

The ATO has issued an Interpretative Decision (ID 2015/11) which specifies that only individuals who have either general registration or specialist registration with the Medical Board of Australia will qualify as a legally qualified medical practitioner.

The Medical Board of Australia regulates “health professionals” which covers medical professionals as well as certain other health professionals such as dental professionals, nursing and midwifery professionals, pharmacy professionals (and others – this is not a complete list).

Even within medical professionals there are six types of registration – including “provisional registration”, “limited registration”, “non-practising registration” and “student registration”.

So in order to ensure that a member can have their disability benefit given the most favourable taxation treatment (and also to provide a safe harbour for trustees when deciding whether the member is entitled to a permanent incapacity benefit), the medical certificates must be provided by medical professionals who are registered with the Medical Board of Australia, either on a general registration basis or on a specialist registration basis.

From a superannuation perspective the importance of whether an individual is a legally qualified medical practitioner arises as to the taxation treatment of benefits paid to members who are permanently incapacitated.  

If the benefit is paid as a pension (assuming the member is under age 55), the pension will be taxable at normal personal rates but the member will also be entitled to a 15% tax rebate if the pension qualifies as a disability superannuation benefit.  A pension will only qualify as a disability superannuation benefit if two legally qualified medical practitioners have provided the required medical certificates.  (If the benefit is a tax free component, this component is not taxed.)

If the benefit is paid as a lump sum then the tax free component of the benefit is adjusted having regard to the period from their date of disablement to age 65.  Essentially, the portion of the disablement benefit referrable to the period from disablement to age 65 is treated as a tax free component and added to their existing tax free component.

Are certificates required for the trustee’s decision as to whether a member is permanently incapacitated?

Curiously, in relation to the release condition of “permanent incapacity” there is no express requirement that the trustee obtain “medical certificates” let alone medical certificates from “legally qualified medical practitioners” attesting to the incapacity of the member. The relevant SIS Regulation, 1.03C, simply requires that the trustee to be reasonably satisfied that the member’s ill-health makes it unlikely that the member will ever engage in gainful employment for which the member is reasonably qualified by education, training or experience.  However a prudent and well advised trustee would insist upon “medical certificates” from “legally qualified medical practitioners" - Is a pharmacist a medical practitioner? 

What about access under the terminal medical condition event?
The SIS Regulation which specifies when a terminal medical condition exists in relation to a member (SIS Reg 6.01A) refers to medical certificates provided by two registered medical practitioners.  Strangely the term “legally” is not used to qualify “registered medical practitioners.  However, as the provision also requires one of the medical practitioners to be a specialist it seems that the ATO ID is also relevant to the terminal medical condition access condition.

A prudent and well advised trustee would require that the medical certificates supporting access under the “terminal medical condition” access condition only be certificates provided by doctors who are registered with the Medical Board of Australia – at least one must have a specialist registration in an area related to the injury or illness suffered by the member (and who is practising in that area) and the other medical practitioner can have either a general or specialist registration.