This article was first published on the Australian Doctor
Website.
Read the original article here https://www.ausdoc.com.au/news/will-greg-hunts-vaccine-compensation-scheme-work
The COVID-19 vaccination compensation scheme offers welcome reassurance for patients, but questions remain.
THERE has been a lot of talk during recent weeks about support and compensation for those harmed by COVID-19 vaccines.
In an move to reassure Australians, earlier this month, Minister for Health Greg Hunt unveiled the Federal Government's COVID-19 Vaccine Claim Scheme.
Given that (at the time of writing) there have been 37 confirmed
cases of thrombosis with thrombocytopenia syndrome following
administration of the AstraZeneca vaccine, it's important to
note it will be backdated to the start of the national vaccine
rollout which began on 22 February this year.
However, it may not last forever. There appears to be a sunset
clause, as its existence will be linked to the Human Biosecurity
Emergency Period under the Biosecurity Act 2015.
The benefits of what the government is doing are obvious.
It may help reduce vaccine hesitancy, and as a matter of social
policy, it aims to assist those who do experience the rare adverse
reactions.
What are the legal issues?
Let's look closely at some of the words and phrases used in
Mr Hunt's statement to the media.
"In the event someone suffers a significant adverse reaction,
causing injury and economic loss because of vaccination, the scheme
will help guide potential claimants through a no-fault claims
process scheme," it reads.
"Proven claims will be able to receive appropriate
compensation without . formal court processes.
"Potential claimants accessing the scheme will still have the
option of pursuing action through a court judgement if that is
their preference."
What do those innocent-looking phrases mean to a lawyer?
Significant adverse reaction
What is significant? Presumably, not just being unwell for a couple of days. Probably a reaction that leads to injury (perhaps not permanent) and economic loss (loss of income).
Because of vaccination
This 'causation or coincidence' question can become a major issue. Not everyone who becomes unwell soon after a vaccination will do so as a result of the vaccine. In the UK, it is estimated that more than 65% of vaccine compensation claims fail because of causation not being established.
No fault
Under a no-fault scheme, it is not necessary to establish negligence or fault on the part of the health professional who administers the vaccine.
Proven claims
This is potentially a broad topic. The claimant will presumably
need to prove they had a qualifying vaccine, had a significant
adverse reaction caused by the vaccine and, as a consequence,
experienced injury and/or economic loss.
The usual legal standard of proof is "on the balance of
probabilities", but other mechanisms do exist. In the National
Redress Scheme for child abuse compensation, for instance, a lower
standard is used: reasonable likelihood.
Appropriate compensation
What is deemed appropriate compensation may give rise to some
debate given the extent of the possible harms.
Under the UK vaccination compensation scheme, there is an upper
limit on compensation of $220,000.
Compensation should be based on need, but will a means test
apply?
Will Centrelink benefits suffice for loss of income, for example?
Will there be some compensation for illness and mental
distress?
Will compensation be provided to dependent children in the rare
circumstance that a parent dies?
What of the providers?
There are other questions that need addressing, including who is
covered under the proposed scheme.
Unsurprisingly, the vaccine must be a COVID-19 vaccine approved for
use by the TGA; that seems clear enough.
But the issue around who provides the vaccine and whether they are
covered is a little less clear.
Mr Hunt says the scheme will support claims made against privately
practising health professionals who provide a COVID-19
vaccine.
We doubt that the wording was intended to exclude health
professionals who are not in private practice, such as those
working for hospitals.
As for which patients can claim under the no-fault scheme, we
don't know yet.
Everyone who obtains vaccination in Australia seems the easiest
answer, but perhaps the scheme will only include Australian
citizens, permanent residents and some special visa holders;
similar to the NDIS.
We don't know if it will extend to Australians who obtain
approved vaccines overseas in order to return to Australia.
The question about the preservation of common law compensation for
individuals is also important.
Mr Hunt has made clear that traditional 'common law'
compensation rights will be preserved for those who do not want to
claim under the no-fault scheme or are unable to do so.
This is again a similar approach to the National Redress scheme for
child abuse compensation.
It means that individuals can still make compensation claims
through the civil courts.
So what's next?
Details of the COVID-19 Vaccine Claim Scheme will be finalised
in consultation with peak bodies, indemnity insurers, patient
groups and states and territories.
Given that part of its aim is to encourage more people to be
vaccinated, we expect that the finalisation phase will be quite
quick.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
