Long Term Care Scheme for the Severely Injured

Executive Councillor of the Australian Medical Association, Dr Andrew Pesce, good morning, thanks for your time.

DR ANDREW PESCE: Thanks very much for having me on the show.

MIKE JEFFREYS: I just found the case … terribly moving and really a failure I suppose of us as human beings to really address the problems that these people face. What was your reaction?

DR ANDREW PESCE: Look, that's absolutely what my reaction was. I was rung … to make a media comment and I think these people were expecting me to say that doctors found that this was good news because the doctors had been found not liable for compensation for these babies. But I think that this is a really, really sad case and really demonstrates and completely summarises the whole problem when we try to use the legal system to offer assistance and compensation to severely disabled people.

Now the legal system probably does have a place and the law isn't a complete ass, but whatever animal it is, it doesn't really help these people … one is an adult and one is a child, who are severely disabled, and the only chance that they're going to get any meaningful assistance and their families' assistance in looking after them is to go to court and get the court to decide that someone has been negligent and pay for the damages.

And we know from experience that the vast majority of these sorts of disabilities are not able to access compensation in this way. And even in this case, where doctors were actually found to have made a mistake and could have been found negligent, the law decided that given its decision at the highest court in the land has to be rooted in the traditions of the law and respect the law of torts, they had to demonstrate that being born with a profound disability was a damage compared to not being born at all and sort of if the parents had terminated the pregnancy.

And, of course, the judges were reluctant to make that big step and I can understand that. But what it means is these people are left out … these people and their families are left out in the cold and they're going to get nothing.

MIKE JEFFREYS: What we tried to do, I suppose, was benefit these people by trying to fit them into the machinery that we have…

DR ANDREW PESCE: Correct.

MIKE JEFFREYS: …which is clearly inadequate. So what should we be doing?

DR ANDREW PESCE: The AMA for a long time has argued that for this specific type of injury, that sort of injury where long term care is an integral part of looking after these people for as long as they live, that the legal system doesn't provide that in any meaningful way to the vast majority of people who need it. And we need a needs based system based on a scheme set up where funds could be made available to look after these people based on their needs rather than their ability to prove negligence in a court of law.

Now that doesn't mean that doctors won't be liable. You could still sue doctors for other things like pain and suffering and economic loss. But for the long term care cost, which is a very, very large majority of the cost, it's best if this was taken out of the court system and provided on a needs basis, assessing what the entry point should be on the basis of severity of injury and making a decision of how many people you wanted to help and how you can help them, based on the basis of need.

Now, doctors could still contribute to the costs of this because we're currently paying hundreds of millions of dollars in professional indemnity premiums and if that was freed up, instead of going through an expensive legal system that barely compensates a tiny minority of these people, we could include those fees and transport it into a statutory scheme.

Other stakeholders like the public hospitals, which currently have to pay for these claims through the court system as well, that money could be set aside. Private hospitals that deliver babies could pay into this instead of paying expensive insurance funds. And, yes, the taxpayers would probably have to pick up some of it as well, if you really wanted to do good on a no-fault basis.

But we would argue very, very strongly that you would get a lot, lot better help for the vast majority of these people if we had a needs-based statutory scheme rather than the filter that the legal system is.

MIKE JEFFREYS: Look, I see what you're saying and I really think a lot of people would say that it makes excellent sense. Still hanging in the air for me though, doctor, is who decides?

DR ANDREW PESCE: If it's based on the principle that the people who need the most help get the most help, it would be … a decision would be made on the amount of need that you need.

For example, even though we might sympathise with someone who is born with a weak arm and that it doesn't look good and they may not be able to play professional tennis, they could probably still get through life and look after themselves. But the entry point to our scheme would be when someone is so severely disabled that they actually need personal care for a certain proportion of their physical needs. Like if they need to be fed, clothed and taken to the toilet and showered, then that to me is really severe injury. And so it might be up to 24 hours of personal care a day for the worst injuries.

But there is precedent for this in motor vehicle and workers compensation claims where you've got a certain degree of neurological injury which requires a certain amount of personal care a day and that can be used as a threshold to identify the most severely affected people who would get automatic access to this scheme.

MIKE JEFFREYS: So really, instead of taking a legal position, we'd be taking a moral and needs position. I think I have to ask this, because from my observation of history, morality tends to be based on expediency and cost. Are we in a society where there are more profoundly disabled people or less?

DR ANDREW PESCE: I think that morality is non-negotiable but it's the legal system which is the way that, for example, the morality is expressed in legal sense and--

MIKE JEFFREYS: But also how much it actually costs and who bears that cost.

DR ANDREW PESCE: Yeah. Look, the costs for these have been worked out by actuaries and there was a big review commissioned by the New South Wales Government which thought of extending a no-fault long term care scheme at least to Workers Compensation and motor vehicle accidents. And they found that for a sort of modest increase in funds that are already outlaid - you've got to remember that there's lots of funds out there which are being paid in a very haphazard and inefficient fashion and not targeting the right people…

MIKE JEFFREYS: Right, yeah.

DR ANDREW PESCE: …and probably for the funds that are already being paid there now--

MIKE JEFFREYS: If it went to the right places?

DR ANDREW PESCE: If it went to the right places and you didn't have a very expensive system of administering that distribution, not paying lawyers who take 40 or 50 per cent of the fees in some of these cases and a court system which is very expensive, and the insurance companies that have to insure it have to run their administration as well, then you could get savings in those areas.

So, yes, there's no doubt you would probably be paying substantially more than now, but instead of paying maybe one in a hundred justified claimants, you'd get them all.

MIKE JEFFREYS: Okay. You make a very good argument and I appreciate your time. Thanks for coming on the program.

DR ANDREW PESCE: It's a pleasure.

MIKE JEFFREYS: Dr Andrew Pesce, Executive Councillor of the Australian Medical Association.