Australia: The COVID–19 vaccine claims scheme: policy document published

In late June 2021 Prime Minister Scott Morrison announced a new vaccine indemnity scheme, under which health practitioners found liable to pay compensation for any serious adverse events suffered by people receiving COVID-19 vaccines would have the compensation paid for them by the Commonwealth of Australia.¹

A degree of confusion followed in the general and social media as to whether the vaccine indemnity scheme provided no fault compensation for patients. It did not. However, a few days later the Minister for Health and Ageing, The Hon Greg Hunt announced "a COVID-19 Vaccine Claim Scheme to provide further assurance and confidence to patients and health professionals in the COVID-19 vaccine rollout".²

It was not until early December 2021 that the Department of Health (Cth) published the COVID-19 Vaccine Claims Scheme Policy 2021, made under the Financial Framework (Supplementary Powers) Regulations 1997 (Cth).³ This article provides a brief overview of that Policy.

The announcement

In his primary announcement of the Vaccine Claim Scheme (VCS), Minister Hunt relevantly said:

Proven claims will be able to receive appropriate compensation without the need of 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.⁴

Benefits of the VCS and interrelationships with other compensation pathways

There is a strong ethical case for no–fault vaccine compensation schemes. Reciprocal justice acknowledges that the community owes a debt of gratitude to an individual who experiences serious injury due to a vaccine offered and accepted in good faith, and they should therefore be compensated by the state.⁵ The benefits of a VCS are obvious. Such a scheme may assist in reducing vaccine hesitancy and should assist persons who do suffer the rare adverse reactions.

The initial announcement indicated that "potential claimants accessing the scheme will still have the option of pursuing action through a court judgement if that is their preference".⁶ Other compensation options are therefore preserved, such as workers compensation, Australian Consumer law, negligence or similar common law actions, in addition to Centrelink (sickness benefits, disability support pension) and the National Disability Insurance Scheme (NDIS) pathway (for severe cases that meet the age, residence and disability NDIS criteria).

The VCS policy

The Scheme applies and claims can be made in relation to all COVID-19 Vaccine Recipients, namely individuals (excluding a seafarer) who received a COVID-19 Vaccine through a Commonwealth Government Approved Program,⁷ on or after 22 February 2021 and up to and including the End Date,⁸ provided the claim is received by Services Australia before the End Date (subject to cl 5(4)).⁹

Only one claim can be made in relation to each COVID-19 Vaccine Recipient (other than a deceased COVID-19 Vaccine Recipient) unless the harm suffered by that COVID-19 Vaccine Recipient significantly worsens and requires additional treatment for a period of at least 6 months after the latest date for which compensation was originally paid under the Scheme in respect of out–of–pocket expenses and/or lost earnings (called further related harm). More than one claim may also be made in the event the recipient suffers different and unrelated harm, or harm which was not within the definition of harm as at the date on which a previous claim was received by Services Australia (called subsequently recognised harm).¹⁰

The policy describing the VCS contains seven parts:

1. preliminary;
2. submitting a claim;
3. compensation;
4. supporting documentation and other information;
5. assessment of claims;
6. offers and acceptance of compensation and settlement deed; and
7. review of decisions in relation to claims.

Some brief comments in relation to each Part are set out below, but not all issues are covered so the policy should be read in full.

Part 1 — preliminary

Part 1 describes the fundamentals of the VCS and much information can be gleaned from cl 2 of the Policy, which provides a detailed list of relevant definitions. For example, COVID-19 Vaccine means a vaccine included in the Australian Register of Therapeutic Goods that is indicated for active immunisation to prevent coronavirus disease 2019 (COVID-19) caused by SARS-CoV-2.¹¹ Approved COVID-19 vaccines currently in use in Australia are Vaxzevria (AstraZeneca), Comirnaty (Pfizer), and Spikevax (Moderna).¹²

Harm means COVID-19 Vaccine Related Harm (see below) or COVID-19 Vaccine Administration Related Harm (see below) but excludes the following:

COVID-19 Vaccine Related Harm includes seven clinical conditions which are diagnosed by a treating practitioner and listed in Table 1, provided that the clinical condition results from the COVID-19 Vaccine in the sense that the condition was most likely caused by the COVID-19 Vaccine and less likely caused by any of the COVID-19 Vaccine Recipient's other circumstances.¹⁴ The seven conditions presently listed in Table 1 are anaphylactic reaction, thrombosis with thrombocytopenia syndrome, myocarditis, pericarditis, capillary leak syndrome, demyelinating disorders including Guillain-Barre Syndrome and thrombocytopenia, including immune thrombocytopenia, identified as a final diagnosis.

COVID-19 Vaccine Administration Related Harm means:

This test of causation may be intended to echo the approach taken in the National Redress Scheme, which creates a "reasonable likelihood" test under s 12 of the National Redress Scheme for Institutional Child Abuse Act 2018 (Cth).

A separate definition appears for a deceased COVID-19 Vaccine Recipient, which means a COVID-19 Vaccine Recipient who suffered harm (within the definition of harm as at the date on which a claim was received by Services Australia) which caused, or materially contributed to, their death. Relevant to such persons is the definition of dependent, which extends to a spouse, de facto partner and children. As for children, the definition covers a child of the COVID-19 Vaccine Recipient (whether biological or derived from adoption or otherwise) who was wholly, mainly or partly dependent on the earnings of the COVID-19 Vaccine Recipient at the time the deceased COVID-19 Vaccine Recipient died. It also covers a child born after the death of the deceased COVID-19 Vaccine Recipient where the deceased COVID-19 Vaccine Recipient is that child's parent (whether biological, derived from adoption or otherwise). Finally, there is a broader provision for any other person that was wholly, mainly or partly dependent on the earnings of the COVID-19 Vaccine Recipient at the time the deceased COVID-19 Vaccine Recipient died.¹⁶

Eligible claimants are those who have suffered harm (see above) within one of three Tiers:

• Tier 1: for an eligible claimant who claims a loss (less the pain and suffering amount) of between

$1,000.00 and $15,999.99 if pain and suffering is claimed; and $1,000.00 and $19,999.99 if pain and suffering is not claimed; and satisfies the hospitalisation requirement, unless waived in accordance with cl 6.¹⁷

• Tier 2: for an eligible claimant who claims a loss (less the pain and suffering amount) of $16,000.00 or more if pain and suffering is claimed; and

$20,000.00 or more if pain and suffering is not claimed; and satisfies the hospitalisation requirement, unless waived in accordance with cl 6.

• Tier 3: which applies to an estate representative, authorised representative or family representative (each of which are defined in Pt 1 cl 2).
  

Part 2 — submitting a claim

Claims under the VCS are submitted online.¹⁸ Such claims are determined by a decision maker — a delegate of the Secretary of the Department in accordance with s 32D of the Financial Framework (Supplementary Powers) Act 1997 (Cth).¹⁹

Part 3 — compensation²⁰

Compensation under the VCS is not the same as but not entirely dissimilar to, for example, the Civil Liability Act 2002 (NSW), in that claims may be made for past loss, future loss²¹ and for pain and suffering.²² Special provisions exist for claims following the death of a vaccine recipient.²³

Costs not recoverable under the Scheme are expressly stated to include any legal costs or expenses in connection with a claim and/or receipt of compensation; any costs associated with obtaining tax, financial or other professional advice in connection with the claim and/or receipt of compensation; any other costs in connection with the claim and/or receipt of compensation that are not out–of–pocket expenses; and interest on any compensation.²⁴ Note however that cl 37(2) of the Policy states that Claimants should obtain professional or legal advice on the appropriate tax treatment of any payments they receive under the Scheme and any impacts on entitlements, benefits or other payments that may be associated with the receipt of payments under the Scheme.

There is however a Maximum Compensation Benchmark, which means the maximum amount that may be paid as compensation in relation to a claim unless the decision maker determines to award a higher amount in accordance with item 1(4) of Sch 1. This is not a single benchmark, but rather a maximum compensation benchmark for each head of compensation claimed. For example, for a lost earnings claim the maximum compensation benchmark is an amount that is up to three times the average weekly earnings amount.²⁵

The cl 2 definitions relevant to compensation include definitions of:

• pain and suffering;
• out–of–pocket expenses;
• lost earnings;²⁶
• gratuitous attendant care services;²⁷
• gratuitous domestic services;
• paid attendant care; and
• loss capacity to provide domestic ²⁸

Pain and Suffering is defined to mean pain and suffering; loss of amenities of life; loss of expectation of life; and disfigurement of the COVID-19 Vaccine Recipient most likely caused by the harm, and for which items or amounts are not entitled to be paid, reimbursed or compensated by a Third Party Payer.²⁹ Third Party Payer means any agency, entity or person, such as an employer, insurer (including private health insurer), the Commonwealth (such as through Medicare and Centrelink) but not a life insurer of a deceased COVID-19 Vaccine Recipient.³⁰ The pain and suffering compensation amount is capped at $693,500.³¹ Schedule 1 provides a table³² which is not dissimilar to the Civil Liability Act 2002 (NSW) "proportion of the most extreme case" approach. However, for "up to 15%" severity of pain and suffering (as a proportion of the most extreme case) the recoverable amount is 1% of $693,500 (the maximum compensation benchmark).

There is a stated Tier 3 Dependant Lump Sum Payment of $644,640 plus, if the deceased COVID-19 Vaccine Recipient had more than one dependent at the time of their death) for each child that was a dependent who was, at the date the deceased COVID-19 Vaccine Recipient died, under the age of 16; or over 16 but under the age of 21 and a full-time student, an additional sum specified in column 2 of Table 2 corresponding to the age of each child as set out in column 1 of Table 2 (if under 1, $61,288 decreasing to $13,831 if not under 12 but under 16 or if not under 16 but under 21 (full-time students)); but, where the deceased COVID-19 Vaccine Recipient's only dependents are children of the deceased COVID-19 Vaccine Recipient, it will not include an additional sum as set out in Table 2 for the eldest child that was a dependent.³³ Funeral expenses up to $15,000 are recoverable.³⁴

Part 4 — documentation

Part 4 describes the documentation which the claimant must provide to Services Australia. For example, the claimant must provide satisfactory information and evidence of the pain and suffering in accordance with cll 16 and 20.³⁵ A medical report covering particular matters is required for all claims.³⁶ For example, the medical report must include the reporting practitioner's diagnosis (or a summary thereof) of the specific harm suffered, including: an explanation as to how that diagnosis was made, including any relevant diagnostic criteria, case definitions and tests/investigations undertaken; if known, the date on which symptoms of the specific harm were first experienced; if known, the date on which the diagnosis was first made; details of the treating practitioner (if any) who first made the diagnosis (if different from the reporting practitioner), such as name, contact details, provider number and speciality or field; and the reporting practitioner's opinion as to the circumstances, nature and severity of the harm. In addition, the report should provide an overview of the nature of the treatment received in relation to the harm; and must include the reporting practitioner's opinion as to the extent to which the harm was most likely caused by the COVID-19 Vaccine (or its administration) and less likely caused by any of the COVID-19 Vaccine Recipient's other circumstances.³⁷

Under cl 23, the assessment and determination of a claim will be undertaken based on the documentary or written material submitted by the claimant and obtained from other parties. No oral evidence is to be taken, unless the assessor or decision maker considers it necessary, for example, due to literacy or language limitations of the claimant.

Part 5 — assessment

Services Australia undertakes an initial assessment of all claims. Tier 1 claims are assessed by Services Australia. Tier 2 and Tier 3 claims may be referred to a medical officer and will be referred to an assessor.³⁸

The Policy provides for the establishment of an independent expert panel (cl 27) comprising legal service providers from the whole of Australian Government Legal Services Panel with relevant experience in the area of personal injury litigation (or similar) and administrative law, or who are otherwise appointed by the department. The panel members have roles in respect to assessment of Tiers 2 and 3 claims.³⁹

In the event that an assessor considers, as a result of the information available in relation to a claim, that there may have been harm caused by a registered health practitioner in the administration of the COVID-19 Vaccine received by the COVID-19 Vaccine Recipient, they may recommend a referral to the Australian Health Practitioner Regulation Agency for a review of the practitioner's conduct or performance by the relevant professional board.⁴⁰

Part 6 — offers and acceptance

Before any compensation is paid and as a condition of receiving compensation, a settlement deed must be executed in a form approved by the department. The deed will provide for repayment of the compensation if the recipient later recovers any compensation or dam- ages, not including life insurance payments.⁴¹

Before any compensation is paid in respect of a Tier 3 claim, a formal grant of probate or letter of administration in relation to the death of the deceased COVID-19 Vaccine Recipient must be provided to the decision maker.⁴²

Part 7 — reviews

The claimant may apply for a review of the decision made in respect of their claim under cl 39. The review will be undertaken by a decision maker who is of a higher level in the public service than the original decision maker, and the more senior decision maker will be the decision maker on review.⁴³ The decision of the decision maker on review will supersede and replace the original decision, regardless of whether it results in a more or less favourable outcome for the claimant.⁴⁴

Appeal of decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) does not appear to be available, by reason of the exclusion in Sch 1 of that Act, which at para (he) lists decisions under Pt 2 of the Financial Framework (Supplementary Powers) Act 1997 (Cth).

Concluding remarks

If the VCS has merit, why should it be limited to COVID–19 vaccines and perhaps related treatments? The Royal Australian College of General Practitioners has recently published a position statement⁴⁵ supporting the development and implementation of a no-fault vac- cine injury compensation scheme for all vaccines listed on the National Immunisation Program schedule. The college identifies four benefits of introducing such a scheme: protecting the broader community; ensuring fair compensation for vaccine injury; enhancing confidence in vaccinations; and increasing uptake of vaccination programs. Many will agree with the position taken by the college, which may see the COVID–19 VCS become the beginning of a larger set of vaccine compensation related reforms. However, at this stage even the VCS has an End Date that is 2 years after the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 made under s 475 of the Biosecurity Act 2015 (Cth) ceases to be in force.

End

A version of this article first appeared in Precedent, journal of the Australian Lawyers Alliance, issue 168, published in February 2022 (Sydney, Australia, ISSN 1449-7719). This version has been published with the kind permission of the authors and the ALA.

Footnotes

¹Prime Minister of Australia, "Media Statement" (28 June 2021) pm.gov.au/media/national-cabinet-statement-5. For a discussion see B Madden and Tina Cockburn, "What's the new COVID vaccine indemnity scheme? Two legal experts explain" The Conversation (1 July 2021), www.theconversation.com/ whats-the-new- covid-vaccine-indemnity-scheme-two-legal- experts-explain-163717.

²The Hon G Hunt MP, "COVID-19 indemnity scheme to protect health professionals and patients", health.gov.au/ministers/ the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to- protect-health-professionals-and-patients.

³health.gov.au/resources/publications/covid-19-vaccine- claims-scheme-policy.

⁴The Hon G Hunt MP, "COVID-19 indemnity scheme to protect health professionals and patients", health.gov.au/ministers/ the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to- protect-health-professionals-and-patients.

⁵ Wood N, Macartney K, Leask J, McIntyre P, "Australia needs a vaccine injury compensation scheme: Upcoming COVID-19 vaccines make its introduction urgent", Aust J Gen Pract 2020; 49 Suppl doi: 10.31128/AJGP-COVID-36.

⁶The Hon G Hunt MP, "COVID-19 indemnity scheme to protect health professionals and patients", health.gov.au/ministers/ the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to- protect-health-professionals-and-patients.

⁷Clause 2 (definitions). Seafarer means a person who: (a) regularly travels by sea; or (b) is a sailor; and is not an Australian citizen or Permanent Resident: cl 2 (definitions).

⁸End Date means the date that is 2 years after the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 made under s 475 of the Biosecurity Act 2015 (Cth) ceases to be in force: cl 2 (definitions).

⁹Clause 3.

¹⁰Clause 4.

¹¹Clause 2 (definitions).

¹²health.gov.au/initiatives-and-programs/covid-19-vaccines/ approved-vaccines.

¹³Clause 2 (definitions).

¹⁴Clause 2 (definitions).

¹⁵Clause 2 (definitions).

¹⁶Clause 2 (definitions).

¹⁷Clause 6 addresses circumstances such as the nature of the harm suffered, recipients in a rural or remote area and care in outpatient

¹⁸Clause 7.

¹⁹Clause 8.

²⁰Some of the material discussed under this heading is drawn from Pt 1.

²¹A 5% net present value discount rate is See Sch 1.

²²Clause 10.

²³Clause 11.

²⁴Clause 12.

²⁵Schedule 1.

²⁶Loss of income recovery appears to be by reference to the COVID-19 Vaccine Recipient's individual average weekly earnings received through their employment or business operations However Sch 1 refers to a maximum benchmark of three times average weekly earnings.

²⁷Clause 21 makes reference to a threshold of at least 6 hours per week for 6 consecutive Schedule 1 refers to quantification by reference to average weekly earnings.

²⁸Schedule 1.

²⁹Clause 2 (definitions).

³⁰Clause 2 (definitions).

³¹Schedule 1 1(d).

³²See p 61 of the

³³Clause 2 (definitions).

³⁴Clause 2 (definitions).

³⁵Clause 14 (2)(c).

³⁶Clause 14(3).

³⁷Clause 16 (3).

³⁸Clause 25.

³⁹Clause 27–29.

⁴⁰Clause 31.

⁴¹Clause 35.

⁴²Clause 36.

⁴³Clause 36(3).

⁴⁴Clause 36(6).

⁴⁵racgp.org.au/FSDEDEV/media/documents/RACGP/ Position%20statements/No-fault-compensation-Scheme-for- Immunisations.pdf.

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