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Early access to super for medical procedures

19 November 2020 | Sonya Black, LLB (Hons), B.Com, Special Counsel – Employment Law, Avant Law, QLD

A patient may wish to undergo a medical treatment but cannot afford it. In order to access funds they normally wouldn’t be able to access until retirement, they may be eligible for early release of their superannuation to pay for the treatment and may ask you to write a report to support their application.  

A patient may seek the early release of their superannuation for the following medical reasons listed below:

Access on compassionate grounds

Early access to superannuation may be granted if both of the following conditions are met:

1: The patient must require treatment for a life-threatening illness or injury, acute or chronic pain or an acute or chronic mental illness. The ATO’s guidance says 'life threatening' means that without recommended treatment, it is likely that within a year the patient will either die or suffer an irreversible degeneration of a condition that, if left untreated, would result in premature death. There must be a clear and direct link between the current state of the illness or injury, and the threat to the patient’s life.

2: The treatment must not be readily available through the public health system. Doctors are required to certify that the treatment is not readily available in the public health system which means either:

  • Treatment is available in a public hospital, but only after a very long waiting period, for which the applicant or their dependant cannot wait.
  • A surgeon requires the applicant to attend a private hospital and the cost of treatment is beyond their financial capacity.

Access due to a terminal medical condition

If a patient has a terminal medical condition, early access to their superannuation can be granted when:

  • Two registered medical practitioners have certified that the patient suffers from an illness or injury that is likely to result in death within 24 months.
  • At least one of the registered medical practitioners is a specialist practising in an area related to the illness or injury.

Access due to temporary incapacity

A patient may be able to access their superannuation if they are temporarily unable to work, or need to work less hours, because of a physical or mental medical condition.

Access due to permanent incapacity

The patient’s superannuation fund must be satisfied the patient has a permanent physical or mental medical condition that is likely to stop them from ever working again in a job they were qualified to perform through education, training or experience.

Practical issues to consider

If you are asked to complete a superannuation fund form or Australian Taxation Office (ATO) form, you should read the form carefully and make sure you understand what information you are being asked to provide.

If you are asked to write a report for a patient, you should ask them for information about the purpose of the report and only provide information which you know to be true. For further information about the reasons for seeking the early release of superannuation, visit the ATO website.

It goes without saying, that you need to obtain the patient’s informed financial consent, whether the treatment is, or isn’t being paid for through an early release of superannuation.

Doctors should also be aware that the patient’s superannuation fund may have specific rules in addition to the ATO’s rules.

The patient should consider the taxation and financial consequences of withdrawing their superannuation. While you should not provide advice in this area, you may wish to encourage your patient to seek independent advice.

It can also be a good idea to encourage the patient to consider how they plan to proceed if the surgery doesn’t work the first time. For example, weight loss surgery is not guaranteed to be 100% effective, and fertility treatments often require multiple rounds to work.

Professional standards

Under the Medical Board of Australia’s recently updated Good Medical Practice: A Code of Conduct for Doctors in Australia, doctors must act in their patients’ best interests when making referrals and providing or arranging treatment or care. The code also confirms good medical practice involves being honest and not misleading when writing reports and certificates, and only signing documents you believe are accurate. 

Third party assistance

There are organisations that assist patients to secure the early release of their superannuation for medical reasons.

These organisations often seek to enter into arrangements with specialists so that the specialist will recommend their services to patients who require medical treatment but cannot afford it. Specialists should exercise care when entering into these arrangements, to ensure they do not create a conflict of interest (for example, the specialist may benefit from the arrangement by deriving income from performing the surgery).

Specialists should only support patient applications they would be willing to assist in the absence of an arrangement, and not allow the relationship to influence the advice and treatment they provide.  

Key lessons

  • Be aware of any conflict of interest. As a doctor, boundaries can get blurry when you embark on a relationship with third party providers whose sole business is to help patients gain early access to their superannuation. Third party providers may pitch the partnership as a ‘win-win’, but the repercussions can be long lasting for the patient whose future after retirement may be severely impacted by the decrease in funds.
  • There is also the potential for a conflict with the patient if there is a complication with the surgery or it does not correct the underlying problem, and the patient has also used up his/her superannuation to fund the surgery.

Useful resources

For medico-legal advice, please contact us on nca@avant.org.au or call 1800 128 268, 24/7 in emergencies.


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