Madden, Bill; Cockburn, Tina --- "The COVID-19 Vaccine Claims Scheme: An overview of the policy document" [2022] PrecedentAULA 7; (2022) 168 Precedent 22

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THE COVID-19 VACCINE CLAIMS SCHEME

AN OVERVIEW OF THE POLICY DOCUMENT

By Bill Madden and Associate Professor Tina Cockburn

In late June 2021, Prime Minister Scott Morrison announced a new vaccine indemnity scheme.^[1] Under this scheme, health practitioners ‘found liable to pay compensation for any serious adverse events suffered by people receiving COVID vaccines’ would ‘have the compensation paid for them by the Commonwealth of Australia’.^[2]

A degree of confusion followed in the general and social media about whether the vaccine indemnity scheme provided no-fault compensation for patients. It did not. However, a few days later, the Minister for Health and Aged Care, Greg Hunt MP, announced ‘a COVID-19 Vaccine Claim Scheme to provide further assurance and confidence to patients and health professionals in the COVID-19 vaccine rollout.’^[3]

It was not until early December 2021 that the Commonwealth Department of Health published the COVID-19 Vaccine Claims Scheme Policy 2021 (Policy), made under the Financial Framework (Supplementary Powers) Regulations 1997 (Cth).^[4] This article provides a brief overview of the Policy.

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

‘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.

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.’ ^[5]

SCHEME BENEFITS AND INTERRELATIONSHIPS WITH 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 the individual should therefore be compensated by the state.^[6] The benefits of a VCS are obvious. Such a scheme may assist in reducing vaccine hesitancy and should assist people 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’.^[7] Other compensation options are therefore preserved, such as workers compensation, Australian Consumer Law, and 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.

VACCINE COMPENSATION SCHEME POLICY

As the Policy states,

‘The Scheme applies and Claims can be made:

(a) in relation to all individuals (excluding a Seafarer)^[8] who received a COVID-19 Vaccine on or after 22 February 2021 through a Commonwealth Government Approved Program; and

(b) up to and including the End Date,^[9] provided the Claim is received by Services Australia before the End Date (subject to clause 5(4)).’^[10]

It further states,

‘Only one Claim can be made in relation to each COVID-19 Vaccine Recipient (other than a Deceased COVID-19 Vaccine Recipient) unless:

(a) the Harm suffered by that COVID-19 Vaccine Recipient:

(i) significantly worsens; and

(ii) 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, (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 (Subsequently Recognised Harm)’.^[11]

The Policy contains seven parts:

1. Preliminary

2. Submitting a claim

3. Compensation

4. Claims – Supporting documentation and other information

5. Assessment of claims

6. Offers and acceptance of compensation and settlement deed

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, 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.’^[12] Approved COVID-19 vaccines currently in use in Australia are Vaxzevria (AstraZeneca), Comirnaty (Pfizer), and Spikevax (Moderna).^[13]

‘Harm’ is defined as: ‘COVID-19 Vaccine Related Harm or COVID-19 Vaccine Administration Related Harm’, with exclusions as listed in cl 2 for contracting COVID-19, psychological and psychiatric conditions, some secondary injuries and a specified list of items.^[14]

Covid-19 Vaccine Related Harm

This includes seven clinical conditions which have been diagnosed by a ‘Treating Practitioner’, provided that the clinical condition results from the COVID-19 vaccine in the sense that it was ‘most likely caused by the COVID-19 Vaccine and less likely caused by any of the COVID-19 Vaccine Recipient’s other circumstances.’ The conditions currently listed in Table 1 of the Policy are 'Anaphylactic reaction’, ‘Thrombosis with Thrombocytopenia Syndrome’, ‘Myocarditis’, ‘Pericarditis’, ‘Capillary leak syndrome’, ‘Demyelinating disorders including Guillain Barre Syndrome (GBS)’ and ‘Thrombocytopenia, including immune Thrombocytopenia, identified as a final diagnosis’.^[15]

COVID-19 Vaccine Administration Related Harm is defined as:

‘(a) either a clinically diagnosed:

(i) shoulder injury; or

(ii) other moderate to significant physical injury giving rise to permanent impairment or the need for an extended period of medical treatment but excluding psychological distress (e.g. shock); and

(b) that was sustained during the administration of a COVID-19 Vaccine; and

(c) that was most likely caused by the administration of the COVID-19 Vaccine; and less likely caused by any of the COVID-19 Vaccine Recipient’s other circumstances.’^[16]

This test of causation may be intended to echo the approach taken in the National Redress Scheme, which creates a ‘reasonable likelihood’ test under s12 of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth).^[17]

Other definitions

A separate definition appears for ‘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 ‘Dependant’, 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 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.’^[18]

Eligible claimant

An eligible claimant is a person who has suffered harm^[19] within one of three tiers.

Tier 1 is for an eligible claimant who:

‘claims a Loss Less Pain and Suffering Amount of between:

(A) $1,000.00 and $15,999.99 if Pain and Suffering is claimed; and

(B) between $1,000.00 and $19,999.99 if Pain and Suffering is not claimed; and ... satisfies the Hospitalisation Requirement, unless waived in accordance with clause 6’.^[20]

Tier 2 is for an eligible claimant who:

‘claims a Loss Less Pain and Suffering amount of:

(A) $16,000.00 or more if Pain and Suffering is claimed; and

(B) $20,000.00 or more if Pain and Suffering is not claimed; and ... satisfies the Hospitalisation Requirement, unless waived in accordance with clause 6’.^[21]

Tier 3 applies to an estate representative, authorised representative or family representative (each of which are defined in pt 1, cl 2).^[22]

Part 2 – Submitting a claim

Claims under the VCS are submitted online, unless otherwise accepted by Services Australia.^[23] Such claims are determined by a decision-maker – ‘a delegate of the Secretary of the Department in accordance with section 32D of the Financial Framework (Supplementary Powers) Act 1997 (Cth).’^[24]

Part 3 – Compensation^[25]

‘Compensation’ under the VCS is not the same as, but not entirely dissimilar to, for example, the compensation recoverable under the Civil Liability Act 2002 (NSW), in that claims may be made for past loss, future loss^[26] and for pain and suffering.^[27] Special provisions exist for claims following the death of a vaccine recipient.^[28]

‘Costs not recoverable under the scheme’ are expressly stated to include:

‘(a) any legal costs or expenses in connection with a Claim and/or receipt of Compensation;

(b) any costs associated with obtaining tax, financial or other professional advice in connection with the Claim and/or receipt of Compensation;

(c) any other costs in connection with the Claim and/or receipt of Compensation that are not Out of Pocket Expenses; or

(d) interest on any Compensation.’^[29]

Note, however, that 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.’^[30]

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 Schedule 1.’^[31]

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 3 times the Average Weekly Earnings Amount’.^[32]

The following definitions at cl 2 are relevant to compensation:

• pain and suffering;

• out of pocket expenses;

• lost earnings;^[33]

• gratuitous attendant care services;^[34]

• gratuitous domestic services;

• paid attendant care; and

• loss capacity to provide domestic services.^[35]

‘Pain and Suffering’ is defined to mean

‘(a) pain and suffering;

(b) loss of amenities of life;

(c) loss of expectation of life; and

(d) 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’.^[36]

A ‘Third Party Payer’ means ‘any agency, entity or person,’ such as an employer, insurer (including a private health insurer), or the Commonwealth (for example, through Medicare and Centrelink), but not a life insurer of a deceased COVID-19 vaccine recipient.^[37] The pain and suffering compensation amount is capped at $693,500.^[38] Schedule 1 provides a table^[39] which is not dissimilar to the approach in the Civil Liability Act 2002 (NSW), s16, ‘as a proportion of the most extreme case’. However, for up to 15 per cent ‘Severity of Pain and Suffering (as a proportion of the most extreme case)’ the recoverable amount is 1 per cent of $693,500 (the maximum compensation benchmark, as above).^[40]

There is a stated ‘Tier 3 Dependant Lump Sum Payment’ of $644,640. Further, provision is made:

‘if the Deceased COVID-19 Vaccine Recipient had more than one Dependant at the time of their death:

(i) for each child that was a Dependant who was, at the date the Deceased COVID-19 Vaccine Recipient died:

(A) under the age of 16; or

(B) over 16 but under the age of 21 and a full-time student,

the 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;^[41]

(ii) but, where the Deceased COVID-19 Vaccine Recipient’s only Dependants are children of the Deceased COVID-19 Vaccine Recipient, it will not include an additional sum as set out ... for the eldest child that was a Dependant.’^[42]

Funeral expenses up to $15,000 are recoverable.^[43]

Part 4 – Documentation

This part describes the documentation the claimant must provide to Services Australia – for example, ‘satisfactory information and evidence of the Pain and Suffering in accordance with clauses 16 and 20’.^[44] A medical report covering particular matters is required for all claims.^[45] For example, the medical report:

‘(i) must include the Reporting Practitioner’s diagnosis (or a summary of a Treating Practitioner’s diagnosis) of the specific Harm suffered, including:

(A) an explanation as to how that diagnosis was made, including any relevant diagnostic criteria, case definitions and tests/investigations undertaken;

(B) if known, the date on which symptoms of the specific Harm were first experienced;

(C) if known, the date on which the diagnosis was first made;

(D) 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

(E) the reporting practitioner’s opinion as to the circumstances, nature and severity of the Harm;

(ii) should provide an overview of the nature of the treatment received in relation to the Harm;

(iii) 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’.^[46]

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’. Further, ‘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.’^[47]

Part 5 – Assessment

Services Australia is to conduct the initial assessment of all claims. Tier 1 claims are to be assessed by Services Australia, whereas Tier 2 and Tier 3 claims ‘may be referred to the Medical Officer’ and ‘will be referred to an Assessor’.^[48]

The Policy provides for the establishment of an independent expert panel 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 the assessment of Tier 2 and Tier 3 claims.^[49]

Provision is made for referral:

‘In the event 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 (AHPRA) for a review of the practitioner’s conduct or performance by the relevant professional board.’^[50]

Part 6 – Offers and acceptance

The agreement to pay compensation must be made in writing: ‘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 damages, not including life insurance payments.^[51] Further, before compensation is paid for 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.’^[52]

Part 7 – Reviews

This part makes provision for the claimant to ‘apply for a review of the decision made in respect of their Claim’.^[53] 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.’^[54] 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.’^[55]

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,^[56] which lists decisions under the Financial Framework (Supplementary Powers) Act 1997 (Cth), pt 2.

ASSISTING AN APPLICANT

The VCS does not appear to encourage applicants to seek legal assistance when making claims under the Scheme. Firstly, legal fees are not recoverable, as mentioned above, in that 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.^[57] Secondly, with or without the assistance of lawyers, the scope for appealing decisions under the Scheme is limited to the internal review under pt 7 of the Policy. Appeals to the Administrative Decisions Tribunal do not appear to be available. If an applicant is seriously aggrieved by the fashion in which the Scheme is interpreted, a direct approach to the Minister may be necessary, seeking amendment of the Policy. However, common law claims remain available, so legal advice may remain relevant where applicants wish to consider common law and other compensation options.

CONCLUSION

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 statement^[58] supporting the development and implementation of a no-fault vaccine injury compensation scheme for all vaccines listed on the National Immunisation Program schedule. The College identifies four benefits of introducing a scheme of this type:

• ‘protecting the broader community;

• ensuring fair compensation for vaccine injury;

• enhancing confidence in vaccinations; and

• increasing uptake of vaccination programs.’^[59]

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, two years after the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 made under s475 of the Biosecurity Act 2015 (Cth) ceases to be in force.

Bill Madden is Special Counsel, Carroll & O’Dea Lawyers. EMAIL [e-mail].

Associate Professor Tina Cockburn is Co-Director, Australian Centre for Health Law Research, Queensland University of Technology. EMAIL [e-mail].

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^[1] Prime Minister of Australia, ‘Media Statement’, 28 June 2021 <https://www.pm.gov.au/media/national-cabinet-statement-5> .

^[2] B Madden and T Cockburn, ‘What’s the new COVID vaccine indemnity scheme? Two legal experts explain’, The Conversation, 1 July 2021 <https://theconversation.com/whats-the-new-covid-vaccine-indemnity-scheme-two-legal-experts-explain-163717>.

^[3] The Hon Greg Hunt MP, ‘COVID-19 indemnity scheme to protect health professionals and patients’, 2 July 2021 <https://www.health.gov.au/ministers/the-hon-greg-hunt-mp/media/covid-19-indemnity-scheme-to-protect-health-professionals-and-patients>.

^[4] Australian Government Department of Health, COVID-19 Vaccine Claims Scheme – Policy (Policy), 9 December 2021 <https://www.health.gov.au/sites/default/files/documents/2021/12/covid-19-vaccine-claims-scheme-policy_0.pdf>.

^[5] Hunt, above note 3.

^[6] N Wood, K Macartney, J Leask and P McIntyre, ‘Australia needs a vaccine injury compensation scheme: Upcoming COVID-19 vaccines make its introduction urgent’, Australian Journal of General Practice, 9 September 2020 <https://www1.racgp.org.au/ajgp/coronavirus/australia-needs-a-vaccine-injury-compensation-sche>.

^[7] Hunt, above note 3.

^[8] Policy, above note 4, cl 2: ‘Seafarer means a person who: (a) regularly travels by sea; or (b) is a sailor; and is not an Australian citizen or Permanent Resident’.

^[9] Ibid, cl 2: ‘End Date means the date that is two years after the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 made under section 475 of the Biosecurity Act 2015 (Cth) ceases to be in force.’

^[10] Ibid, cl 3(1).

^[11] Ibid, cl 4(1).

^[12] Ibid, cl 2.

^[13] Australian Government Department of Health, ‘Approved COVID-19 vaccines’, 25 September 2021 <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/approved-vaccines>.

^[14] Policy, above note 4, cl 2.

^[15] Ibid.

^[16] Ibid.

^[17] As discussed in W Madden, T Cockburn and B Madden, Institutional abuse of children: Legal remedies and redress in Australia, LexisNexis, 2019, [10.3].

^[18] Policy, above note 4, cl 2.

^[19] Ibid.

^[20] Ibid, cl 6(1)(a)–(b), refers to circumstances such as the nature of the harm suffered, recipients in a rural or remote area, and care in outpatient settings.

^[21] Ibid, cl. 2.

^[22] Ibid.

^[23] Ibid, cl 7(1)(b).

^[24] Ibid, cl 2.

^[25] Ibid, pt 3: some of the material discussed under this heading is drawn from pt 1.

^[26] Ibid, sch 1, cl 3(1)(b): A 5 per cent net present value discount rate is applicable.

^[27] Ibid, cl 10.

^[28] Ibid, cl 11.

^[29] Ibid, cl 13.

^[30] Ibid, cl 37(2).

^[31] Ibid, cl 2.

^[32] Ibid, sch 1, cl 1(1)(a).

^[33] See ibid, cl 2: loss 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, cl 1(1)(a) refers to a maximum benchmark of 3 times average weekly earnings.

^[34] See ibid, cl 21(1)(c) for reference to a threshold of at least 6 hours per week for 6 consecutive months; and ibid, sch 1, cl 1(1) on quantification by reference to average weekly earnings.

^[35] Ibid, sch 1, cl 1(1)(c).

^[36] Ibid, cl 2.

^[37] Ibid.

^[38] Ibid, sch 1, cl 1(1)(d).

^[39] Ibid, sch 1, cl 5(2).

^[40] Ibid.

^[41] If under age 1, $61,288, decreasing to $13,831 if not under 12 but under 16, or, if not under 16 but under 21 (full-time student).

^[42] Policy, above note 4, cl 2.

^[43] Ibid.

^[44] Ibid, cl 14(2)(c).

^[45] Ibid, cl 14(4).

^[46] Ibid, cl 16(3).

^[47] Ibid, cl 23(1).

^[48] Ibid, cl 25(1)–(2).

^[49] Ibid, cls 27–29.

^[50] Ibid, cl 31(1).

^[51] Ibid, cl 35(1)–(2).

^[52] Ibid, cl 36(1).

^[53] Ibid, cl 39(1).

^[54] Ibid, cl 39(3).

^[55] Ibid, cl 39(6).

^[56] Sch 1, s3(he).

^[57] Policy, above note 4, cl 13.

^[58] Royal Australian College of General Practitioners, ‘No-fault compensation scheme for immunisations’, August 2021 <https://www.racgp.org.au/FSDEDEV/media/documents/RACGP/Position%20statements/No-fault-compensation-Scheme-for-Immunisations.pdf>.

^[59] Ibid, 1.