The Treasury on its People and Society page indicates that the Australian Government is working with State and Territory governments to develop a National Injury Insurance Scheme(NIIS) to complement the National Disability Insurance Scheme, by providing lifetime care and support to people who are newly affected by a catastrophic injury as a result of certain accidents.

Speaking at a conference yesterday, Jane Campbell reported that the Treasury has now published a ‘draft without prejudice’ medical treatment injury discussion paper.

It is intended to form the basis of a general approach to minimum benchmarks for a medical treatment injury stream of an NIIS. These minimum benchmarks should reflect a reasonable and agreed position on scope of eligibility and level of care and support for people who suffer a catastrophic injury as a result of medical treatment which can be implemented by all jurisdictions. Jurisdictions would have the choice to provide wider eligibility and/or a higher level of care and support as the cost and impact of the National Disability Insurance Scheme (NDIS) and NIIS become clearer, or to align with their own priorities or existing state based arrangements.

As to who would be covered, the paper speaks of:

  • spinal cord injury
  • brain injury
  • multiple amputations
  • burns
  • permanent blindness

As to exclusions, the paper speaks of:

  • Birth defects (to be covered under the NDIS)
  • Injuries wholly or substantially caused by a person unreasonably withholding or delaying consent to treatment
  • Individuals injured when 65 years and older (though this appears undecided)

Determination of what is a medical treatment injury focuses on preventable and non-preventable treatment injuries, provided they were unintended or outside the expected and likely range of treatment outcomes. This does not include personal injury that is wholly or substantially caused by a person’s underlying health condition; personal injury that is solely attributable to a resource allocation decision; or personal injury that is a result of a person unreasonably withholding or delaying consent to undergo treatment.

Treatment would be that provided by one or more Australian Health Practitioner Regulation Agency (AHPRA) registered health professionals and/or at a public or private hospital or other accredited healthcare facility.

An expert panel is proposed, to determine eligibility.

Entitlements on a reasonable and necessary supports basis (only to be provided within Australia) appear likely to follow the proposed motor accident model and so would include treatment, rehabilitation, respite and attendant care, domestic assistance and home / vehicle modification.

As to existing compensation entitlements, the paper suggests that The decision of whether or not to retain common law rights remains at the discretion of State and Territory jurisdictions. If common law rights are maintained it might then be necessary to allow the NIIS to seek reimbursement from clients from any damages awarded.

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