Issue 34 / 3 September 2012

THE wheels of public policy grind slowly in this country.

Calls for a no-fault compensation scheme for medical injuries date back nearly 40 years — to at least the 1974 Woodhouse Commission, when New Zealand got its no-fault accident compensation scheme, if not earlier.

We’re still waiting.

The federal government’s proposed national disability insurance scheme (NDIS) is certainly a step in the right direction, though it will not cover many people whose disability is due to an accident resulting from medical treatment.

Those who suffer serious injury in this way will need to fall back on the second scheme recommended by last year’s Productivity Commission report into disability care and support — the national injury insurance scheme (NIIS).

The NIIS is something of a poor relation in this debate: it has not received anything like the public attention devoted to the NDIS and the details of how it might operate, particularly in the area of medical injuries, remain mostly ill defined.

What we do know is that, under the Productivity Commission recommendations, the term “national” will be something of a misnomer as the NIIS will in fact be a federation of separate schemes run by the various states and territories.

It will cover “catastrophic” injuries only, will not provide compensation for loss of income or for pain and suffering, and will cover only those medical injuries considered to be “avoidable”.

Medical injuries considered as non-avoidable will by covered by the NDIS. Cerebral palsy has been classified as a non-avoidable injury, as the scientific evidence suggests in most cases it’s not due to medical intervention during pregnancy or birth — interesting, given that it has long been central to calls for a no-fault scheme.

Things we don’t yet know include exactly how the term “catastrophic” will be defined, whether injured people will retain the right to sue clinicians and others considered responsible for the injury, or how the scheme will be funded (although it is clear at least some of the funding will come from medical indemnity premiums).

It’s also not entirely clear how the definition of medical injuries as “avoidable” sits within a “no-fault” scheme.

It will probably be a while before we get detailed answers to any of those questions.

Bill Shorten, the minister responsible for the NIIS, has said the first priority under the scheme will be to establish compensation for people suffering catastrophic injury as a result of motor vehicle accidents.

Of course, with such major reforms, it’s important that the government gets it right and that does take time.

And, as an article in this week’s MJA makes clear, there are still a lot of things that need to be discussed.

Professors David Weisbrot and Kerry Breen argue the Productivity Commission didn’t go far enough and the scheme should be extended to cover all, not just catastrophic, medical injuries.

The current legal system is a “slow, costly, inefficient, stressful and often inequitable and unpredictable” way of helping people harmed through medical care, they argue.

“Cases can take years to be settled or decided. Duelling expert witnesses are trotted out. Many people are denied early access to appropriate care and rehabilitation because of delays.”

The compensation payouts for those successful in the courts can sound enormous, but these two professors remind us that close to half of that money under the current system ends up going to the lawyers.

“We do not suggest that moving to a no-fault system will be simple”, they conclude. “Difficult judgements will need to be made about whether the scheme will cover compensation for pain and suffering, whether any or all common law rights should be extinguished and whether upper and lower limits to compensation should apply.”

There’s no doubt it’s difficult — and that entrenched interests will campaign against it — but a genuine no-fault scheme has the potential to bring huge benefits to patients and health professionals.

Let’s hope we get to see it in our lifetime.

Jane McCredie is a Sydney-based science and medicine writer.

Posted 3 September 2012

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