Govt plan to strip legal rights from families with cerebral palsy

16th Jan 2015

Children who are born with cerebral palsy due to medical malpractice may have their rights to sue for their lifetime care and support eliminated under plans being considered by governments, the Australian Lawyers Alliance (ALA) said today.

The ACT Government recently settled to pay $7.5 million to a family, after proceedings for medical negligence had been lodged in the Supreme Court. The family alleged that medical malpractice had caused their son’s cerebral palsy at birth.

Australian Lawyers Alliance National President Andrew Stone said that this case highlighted issues with the proposed National Injury Insurance Scheme (NIIS), a federal government plan which could see catastrophically-injured Australians lose the right to sue for lifetime care and support in cases of negligence.

“At present, children with cerebral palsy have the right to sue for their future treatment and care needs if they can prove that negligence or medical malpractice was the cause,” Mr Stone said.

“However it appears that the government is proposing to pare back those rights via the National Injury Insurance Scheme. Furthermore, it does not appear that people will be given a choice over the class of their rights.”

The NIIS reforms are currently being developed by the federal, state and territory governments without public consultation and without publicising the progress and specific policy detail being considered largely behind closed doors.

The NIIS proposes to provide no-fault lifetime care and treatment to people who have been catastrophically injured. However, under the reform, people who have been injured as a result of another’s negligence (including their employer, doctor, local council or a large company in their community) could have their ability to sue for a lump sum to cover their lifetime care and support eliminated.

Proposals are also in train for people living with cerebral palsy to be treated differently to those with any other disability or injury. The Productivity Commission recommended that cases of cerebral palsy should be covered by the NDIS only, in its 2011 report Disability Care and Support.

However, this would mean that health and medical costs will not be covered (as they will be under the NIIS), and people will only be able to access what they would have been able to under the public health system.

Mr Stone said that cases of cerebral palsy can sometimes occur due to medical malpractice.

“The recent Canberra settlement clearly shows, contrary to the assertions of the Productivity Commission, that those who suffer cerebral palsy as a consequence of medical malpractice can successfully sue,” Mr Stone said.

“In future cases such as the one settled in Canberra, people could be left without the right to sue for future medical costs, the ability to receive it under the NIIS, and any right to choose, even where negligence has occurred.”

According to information released to the ALA under freedom of information laws, it appears that the proposals are very much in train, with little public awareness about the potential impact on thousands of Australians.

“It seems as if the government is preparing to exclude cases of cerebral palsy from the NIIS, and the right of people to choose to sue for the cost of their treatment,” Mr Stone said.

“If the current model of the NIIS is established, this group of people will be reliant on the limits of the public health system rather than being able to recover a lump sum for what they need. People in these situations may ultimately feel that justice has not been done.”

“The National Injury Insurance Scheme will also mean that all victims of negligence who are catastrophically injured will have limited control over, and limited ability to decide the manner in which their care will be delivered,” Mr Stone said.

“All medical and health requests need to be approved by the scheme, which are then vulnerable to being knocked back if the scheme is struggling financially.”

“That is the reality of no-fault systems. And that is a discussion that must be had in Australia,” Mr Stone said.

“The detail of the NIIS must be made accessible to the public and there must be public discussion about the NIIS reforms,” Mr Stone said.

“Furthermore, the government should state clearly how it will change people’s existing legal rights to compensation. This is important as these rights have existed for over a hundred years.”  

“The removal of individuals’ rights is not a conversation that should occur without their input,’ Mr Stone said.

Mr Stone said that the outcome of the case in the ACT was a satisfactory outcome for child and family.

“The family has been awarded a lump sum which will allow them to get on with their lives with autonomy and in control of their own destiny.” 

Tags: Compensation ACT NDIS NIIS Lifetime Care and Support Scheme