THE CHALLENGE OF CARING FOR THE SEVERELY INJURED
Dr Andrew Pesce*
Every year, 750 to 800 Australians are catastrophically injured to the extent that they will be unable to personally care for themselves for the remainder of their life. Having suffered such a severe injury, they rely on assistance our society provides to obtain personal care.
How do they access such assistance?
Some assistance is provided through compensation, either available through a civil claim or via certain government statutory schemes.
This paper explores the extent to which the current systems of compensation and similar assistance meet the needs of the severely injured, identifies the extent of unmet need, and proposes a just system of assistance based on need rather than legal rights.
Who are the injured?
Half of those involved are injured in motor vehicle accidents. One third of them suffer general injuries (such as falls, diving accidents etc) 10% are workplace accidents and the remaining 10% or so are injured during medical treatment
How are they compensated?
To bring these people into broad categories:
- About 50% of severely injured are able to access compensation through the Courts (ie prove another person is at fault or responsible for their injury).
- For those injured in workplace accidents, they are largely covered by statutory workers’ compensation schemes and do no need to prove negligence to obtain compensation.
- 60% of severely injured motor accident victims obtain assistance through compulsory third party injury schemes, although this may rise in the future as more of these schemes move to a “no fault” entry point.
- 50% of those severely injured during medical treatment and 20% where permanent severe disability results from a general injury will obtain assistance through a settlement or award of a civil damages claims brought in the Courts.
These figures, of course, are not intended to amount to 100% as, for example, a person injured in a workplace accident may, in some jurisdictions, be entitled to damages through proving another person is at fault or responsible for their injury or only be entitled to statutory compensation, where they cannot prove fault of a third party.
For the 400 or so Australians who suffer a non compensable severe injury each year some assistance is provided under existing federal and state schemes, such as the Commonwealth, State and Territories joint:
- Disability Assistance scheme (which funds nursing home care); and,
- Home and Community Care scheme (which assists in provision of care at home).
About 60 individuals receive long term accommodation and/or care under these schemes. Another 90 or so per year receive lower level support which assists their families to care for them. Ultimately around 240 (60% of this group) people receive no care assistance at all. The consequence of this is that they and their families are left to carry the burden of their care needs.
Why such a degree of unmet need?
Until recently such catastrophically injured people tended not to survive extended periods, succumbing to medical complications of their injuries. Those that did often received institutional care.
Recent improvements in medical care resulting in increased longevity, and the trend for families to wish to care for their injured members at home have brought focused attention of the rights to compensation of injured individuals when they suffer through the negligence of others. The recognition of these rights has led to the availability more frequent compensation payments where negligence (on the part of a "wrongdoer") can be established.
However, the contrast between the circumstances of those entitled to compensation, and the plight of those without any valid civil claim highlight the ethical imperative for a needs based system of assistance for the catastrophically injured.
This ethical dilemma has in part been resolved by a gradual expansion of fault based compensation schemes to increasingly include injuries not caused by the negligence of others. Often this expansion has been brought about by governments recognising the advantages of statutory entitlements being made available to all those injured in a particular jurisdiction (eg workplace injuries); albeit arguably at the cost of a lower amount of assistance for those who might (much more expensively) establish negligence in a civil claim.
Despite justifiable concerns voiced on behalf of the injured that their individual entitlements may be less under statutory schemes, the community has largely accepted the statutory schemes which have been put in place.
The compromise of individual right to compensation as well as the potential for loss of individual accountability for negligence seems acceptable as long as two fundamental requirements are met:
- First, the amount of statutory assistance must satisfactorily provide a basic level of assistance so that those individuals concerned are, from the community’s point of view, adequately cared for.
- Secondly, the costs of such assistance schemes must be affordable for all who are required to contribute to the insurance pool. Ideally, accountability issues should be dealt with separately to compensation for the injured.
It seems however that achievements in areas of immediate interest to government (workplace and motor vehicle injuries) have exhausted those governments reformatory zeal. As more responsibility for schemes is taken by governments, so does the burden of ensuring satisfactory care is given more widely without escalating the costs to government.
It appears that governments at this stage wish to fully assess the costs and utility of the statutory schemes prior to expanding their responsibilities to other jurisdictions. The final obstacle to development of a coordinated approach to the introduction of an universal needs based scheme is the fear of cost shifting between states, and between states and federal government, an issue known only too well those working in the health system.
What opportunities for progress exist?
It is of interest that in response to the New South Wales' government White Paper on long term care. it considered submissions from 23 peak carer groups. All of those groups strongly supported the concept of a "no fault" statutory scheme (but their universal enthusiasm was counterbalanced by reservations in submissions only from three lawyer groups).
It is from this support base that the ethical imperative of a statutory long term care scheme can snowball into significant political pressure.
The fact is that the Australia federal government is now exposed to significant costs of long term care awards and settlements via its proportionate funding of the medical providers' indemnity liability insurance scheme. This is via the High Cost Claims scheme, which essentially pays 50% of long term care costs of medical negligence claims. This too means that government will recognize the need to obtain maximum benefit for its financial outlays.
A statutory "no fault" scheme does not necessarily exclude continuation of litigation for long term care costs for those where negligence can be proved. However, it seems difficult to define any ethical argument for a different standard of care for similar levels of disability sustained as a result of negligence as opposed to other causes.
In addition, it seems inevitable that once governments are paying for care costs, they will wish to minimise the costs associated with establishing causation and negligence. It is "estimated" that between 30 and 50% of available funds are used not for compensation, but in meeting costs associated with large claims. These costs are not only legal costs, but also investigative, assessment and administrative costs.
In addition, attention should also be focused on the fact that settlements and awards intended to meet lifelong care costs are dissipated well in advance of their intended duration. One study has revealed that within 17 years of receipt of lump sum payments intended for lifetime care costs, only 25% of recipients still have any funds remaining.
What does the future hold?
The move towards improving care for severely injured individuals will continue to develop. Presently this seems to be occurring in individual states, but as reforms in states are observed in practice, it is likely that those observed to be successful will be replicated in other states.
In the same way as a move towards "no fault" workers’ compensation schemes is gradually spilling over into motor vehicle accident schemes, it will be easier to justify incremental inclusion of medical and general accident victims. Whether the difficulties in incorporating fault based injuries into a common scheme for all will lead to a two tier system remains to be seen, but the advantages of pooling existing disparate funding into a national coordinated scheme would seem more irresistible to the accountants and economists than the reluctance to assume responsibility by those developing policy.
Ultimately, the holy grail of a national scheme to provide for, or assist in the care of severely neurologically impaired individuals regardless of causation (and including those disabled by the natural course of illness rather than an identifiable misadventure) is a long way off, but remains an obvious goal for those involved in day to day care of the sick and injured in our society.
*Dr Andrew Pesce, MB BS FRANZCOG, Chair, Australian Medical Association Medical Professional Indemnity Taskforce
Copyright 2005. Greek Legal and Medical Conference