Standing Committee on Law and Justice

Debate resumed from 30 October 2008.

The Hon. CHRISTINE ROBERTSON [3.00 p.m.]: I am pleased to commence debate on the thirty-seventh report of the Standing Committee on Law and Justice entitled "Review of the exercise of the functions of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council—First Report". The report was tabled in the House on 30 October 2008. I would like to start by thanking my fellow committee members for their considered and collaborative work in conducting this review and producing this bipartisan report. The report and its two recommendations were adopted unanimously. Over the past 10 years the Standing Committee on Law and Justice has worked very effectively to supervise the exercise of the functions of the Motor Accidents Authority and the Motor Accidents Council. Our important role has now expanded to the supervision of the functions of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council.

Under section 68 of the Motor Accidents (Lifetime Care and Support) Act 2006, a committee of the Legislative Council is required to fulfil this supervision role. The Standing Committee on Law and Justice was appointed on 30 May 2007 to do so and to report to the House at least once a year. Accordingly, this is the committee's first review of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council. The Lifetime Care and Support Scheme is a New South Wales Government scheme that provides treatment, rehabilitation and care for people who have been catastrophically injured in a motor vehicle accident in New South Wales. The scheme is administered by the authority and commenced operation on 1 October 2006 for children, and on 1 October 2007 for adults. This first review was conducted concurrently with the committee's ninth review of the Motor Accidents Authority and the Motor Accidents Council. As members are aware, the Lifetime Care and Support Scheme evolved out of the Motor Accidents Authority administered Motor Accidents Compensation Scheme, which provides compulsory third party insurance for people injured in motor accidents in this State.

As the Lifetime Care and Support Scheme is still in its infancy, the committee's first report is relatively brief and preliminary. It concentrates on setting out the elements of the scheme, documenting its performance to date and examining a range of emerging issues identified by review participants and by the committee itself, a number of which we suggest should be monitored as the scheme's implementation proceeds. The committee plans to conduct more in-depth reviews as the scheme matures, as its performance takes shape, and as emerging issues become more apparent. The committee received submissions from a number of stakeholders and heard evidence from representatives of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council, the Greater Metropolitan Clinical Taskforce Brain Injury Rehabilitation Directorate, the Law Society of New South Wales, the New South Wales Bar Association, and the Insurance Council of Australia. In addition, detailed information was gathered through a process of written questions and answers, both prior to and after the hearing. The committee expresses its thanks to all who participated in this review for their valuable and thoughtful contributions.

Like various stakeholders to this first review, the Standing Committee on Law and Justice enthusiastically welcomes the Lifetime Care and Support Scheme and congratulates the New South Wales Government on its establishment. The scheme sets a new benchmark in care and support for adults and children who are catastrophically injured in motor vehicle accidents, regardless of who was at fault in the accident. It serves as a model for other jurisdictions, both nationally and internationally. The scheme has been carefully designed to meet the immediate and enduring needs of participants and their families. It is underpinned by human rights principles and a sophisticated and equitable funding arrangement. The committee commends the authority, the advisory council and the Motor Accidents Authority for their substantial work in designing the scheme and commencing its implementation.

In our role in supervising the functions of the Motor Accidents Authority and the Motor Accidents Council, the committee identified several years ago the desirability of a structured yet flexible system of lifetime care and support in lieu of compensation to meet the long-term needs of people who are catastrophically injured. It is with enormous satisfaction that we now see such a system up and running. The scheme commenced operation a little over a year ago and is not expected to reach maturity for 30 years. In the meantime, those administering it have a significant responsibility to ensure its effective implementation, most especially because of the profound impact the scheme will have on the functioning, wellbeing and quality of life of participants, both now and over their entire life course.

The Lifetime Care and Support Authority and its board of directors are charged with achieving these significant goals for participants whilst also ensuring the prudent management of the scheme's substantial funds, generated through a levy on motorists. In future reviews the committee will keenly observe the way the authority and the board execute and balance these responsibilities. The committee's report examines scheme performance to date. Given the short time that the scheme has been operational, performance data is inevitably preliminary. Nevertheless, on the basis of that information the committee concludes that the scheme has performed satisfactorily to date. We look forward to monitoring performance in greater detail, and with greater certainty, in future reviews. The committee notes that expenditure to date on participants' care and support is a mere fraction of the amount projected for the relevant period, whilst appreciating that this is a reflection of the fledgling state of the scheme. We also note that the surplus has been invested for future use.

We were pleased to observe that the Lifetime Care and Support Authority is working to establish systems for data collection, performance monitoring and quality assurance, and we look forward to examining these systems as they are bedded down and start to inform the work of the authority. Various issues concerning the Lifetime Care and Support Scheme's early implementation emerged during this first review, each of which is documented in the committee's report. We note the very positive response among stakeholders to the establishment of the scheme, along with the reported successes of the implementation process to date and the collaborative action the authority is taking to address issues as they emerge. The committee also acknowledges the authority's work to engage stakeholders in the design and rollout of the scheme, which will continue to be vital to its effective implementation over the years to come.

Concerns about potential gaps in eligibility and about the scheme's eligibility criteria were raised during the review. In the committee's view, issues concerning the potential extension of eligibility are inevitably complex and we consider it would be premature to draw firm conclusions at this stage of the life of the scheme. We will observe with interest the extent to which eligibility becomes a contested issue as the scheme matures, as well as what claims are made in respect of eligibility and any particular gaps that become more problematic in time. Similarly, it will be interesting to see whether rehabilitation providers' concerns regarding the need for greater clarity about the intended target group for the scheme continue to be an issue over time. It may be that the boundaries of eligibility are tested in the scheme's initial period and, in turn, better defined in practical terms. The committee considers the extent to which eligibility becomes an issue, and over what period, should have a bearing on how soon any review of eligibility criteria should take place.

I will take up an issue in relation to that. The rehabilitation programs structured so that a particular individual is managing the care of participants in the scheme were proving to be incredibly successful in ensuring that the appropriate treatment and support were given. It was sometimes difficult for me and other members of the committee to discern whether there was some confusion between top-class rehabilitation processes and the Lifetime Care and Support Scheme. It was a little fuzzy for us to observe at that stage, but certainly it was an issue that was brought to our attention.

A number of review participants highlighted the authority's responsibility to ensure that all those who are eligible for the scheme enter it in a timely way. The committee is satisfied that the Lifetime Care and Support Authority is investing significant effort in this area, most notably through widespread ongoing training for hospital and rehabilitation staff. The authority has acknowledged that the orthopaedic system is the weaker area of its net but has also indicated that it is seeking to address this weakness. We further observed that the authority appears to be effectively harnessing the resources of the health system in this respect. Again, the committee will monitor this issue over time.

The Lifetime Care and Support Authority advised the committee that on the basis of advice from paediatric experts it is almost impossible to assess the long-term care needs of very young children. It is desirable to extend the interim participation period for this group. The committee sees value in that proposal and accepts the medical rationale for it. Accordingly, the first of our two recommendations is that the Minister for Finance seek an amendment to the Motor Accidents (Lifetime Care and Support) Act 2006 to provide that children less than three years of age when injured are not assessed for lifetime participation until they are aged at least five years.

The Law Society of New South Wales raised a concern about the inability of participants to opt out of the scheme and manage their own care and support if they wish to do so. The committee acknowledges the philosophical position of the Law Society in respect of this issue but considers it a matter of policy on which it has not yet formed an opinion. We note that no disability groups have raised this issue with us to date, but we will monitor the issue to see whether it becomes more contentious as the scheme matures. The report explores a number of issues relating to the provision of services to scheme participants, specifically service gaps and innovation, supported accommodation, and attendant care.

The committee is satisfied that the service provision aspects of the scheme's early implementation are proceeding in a considered and planned manner, with due consideration being given to ensuring responsiveness to the range of individual needs to be addressed over time. Given that attendant care is expected to constitute the largest proportion of care provided under the scheme, the report concluded that it was vital for attendant care to be appropriately renumerated, well planned for, and efficiently and effectively delivered. The committee is pleased to note that the Lifetime Care and Support Authority is seeking to address an identified gap in supported accommodation, and it will monitor the authority's work in this area over time. We also consider it important for the authority to watch for other emerging gaps in services over the coming years and to address them proactively.

Several strategies were proposed to ensure appropriate support for family carers of lifetime care and support participants. The committee acknowledges the substantial contribution that carers and other family members make in the recovery, care and support of people who are injured in motor accidents. We encourage the Lifetime Care and Support Authority, in its strategies, to ensure that carers are recognised and actively supported. Health service staff reported that the advent of the scheme has seen a significant increase in the paperwork required of them. The committee acknowledges the important role of area health staff in the scheme's operation, as well as the additional demands that the scheme is placing on them.

While recognising the need for the authority's decisions about individual participants to be well substantiated and transparent, we encourage the Lifetime Care and Support Authority in its work to streamline administrative processes and reduce duplication as far as possible so that the right balance is struck between transparency and utility. While acknowledging the additional work arising from the scheme, the committee considers that decisions as to how area health services should spend the revenue gained via scheme reimbursement are matters for those area health services. We will make inquiries with New South Wales Health as to the administration of this aspect of the program and return to this issue during next year's review.

Rehabilitation staff also raised a concern about ambiguity in the role of the lifetime care and support coordinators vis-a-vis clinical staff. The committee notes that the role of the lifetime care and support coordinator is central to the operation of the scheme and considers it understandable that there be an initial period of adjustment and change on the part of treatment and rehabilitation staff associated with the advent of the role of the coordinator. We further acknowledge that the authority has recognised and is responding to this issue. We will watch with interest to see whether this issue is resolved over time, or whether it becomes a greater cause for concern.

Noting the significant impact that decisions within the scheme have on confirmed and prospective participants, as well as the substantial sums of money involved, the committee sought advice from the authority on the mechanisms in place to ensure transparency and accountability in decision making about individual participants, as well as in payments to care and equipment providers The committee considers that the significant transparency and accountability mechanisms built into the scheme are sound, and that funding in respect of decisions is appropriately safeguarded. Stakeholders commented on the importance of ensuring that information about the scheme is accessible to people with a disability. Our report noted the authority's work to provide accessible information, and we encourage it in its efforts to further ensure such a provision. The committee acknowledges the efforts of the authority in advising participants of their rights within the scheme. At the same time, we believe that further consideration should be given to the most appropriate mechanism for review of scheme decisions and to the desirability of an independent advice and advocacy service in order to ensure that participants enjoy adequate procedural rights. The committee considers that it would be valuable to make use of the role of the Lifetime Care and Support Advisory Council in respect of this issue.

Accordingly, our second recommendation is that the authority, in consultation with the Lifetime Care and Support Advisory Council, formally consider the range of options for independent review of decisions and the provision of independent advice and advocacy to potential and actual participants with a view to recommending the preferred options for both. I have more to say about this issue but I will do so when I reply to the debate on this report. I look forward to the contributions of my fellow committee members and I thank the secretariat for working on this interesting first review of the Lifetime Care and Support Scheme.

The Hon. DAVID CLARKE [3.15 p.m.]: As a member of the Standing Committee on Law and Justice I speak in support of the committee's first review of the exercise of the functions of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council, which was conducted simultaneously with its ninth review of the Motor Accidents Authority and the Motor Accidents Council. The report arises pursuant to the committee's oversight responsibility of both the Lifetime Care and Support Authority and its administration of the Lifetime Care and Support Scheme. It is a responsibility that the Standing Committee on Law and Justice takes most seriously.

The purpose of the scheme, which was established pursuant to the Motor Accidents (Lifetime Care and Support) Act 2006, is to provide treatment, rehabilitation and care for people who have been catastrophically injured in a motor vehicle accident in New South Wales, regardless of who was at fault in the accident. How often it is that we hear heart-wrenching stories of those who have suffered massive and life-debilitating injuries as a consequence of motor vehicle accidents. How often it is that we come across those who have suffered partial or total paralysis, serious brain injury or other horrific injuries—tragic cases that have such an overwhelming impact on people's lives—as a result of motor vehicle related accidents.

In a humane society such as ours it is incumbent on us all—it is especially incumbent on legislators—to ensure that people who have been catastrophically injured are provided with the treatment, rehabilitation and ongoing care that their injuries and disabilities require. That is what the Lifetime Care and Support Scheme is meant to do, and it is the responsibility of the Standing Committee on Law and Justice to exercise its oversight authority in the best interests of those who are intended to be the scheme's beneficiaries. The scheme for children under the age of 16 commenced on 1 October 2006 and the scheme for adults commenced on 1 October 2007. That scheme provides treatment, rehabilitation and ongoing care services for those severely injured in motor traffic accidents in New South Wales, regardless of fault. It encompasses, among others, those who have suffered serious spinal cord injuries, brain damage, multiple amputations, and blindness.

The Lifetime Care and Support Authority administers the scheme and the Lifetime Care and Support Advisory Council advises the Minister on matters relating to its operation. I do not wish to traverse all the issues raised in the committee's report because the report speaks for itself. However, it could be said that whilst the scheme is in its infancy, on the whole it is operating satisfactorily. I wish to comment briefly on the two recommendations that were made by the committee. The first deals with the participation of young people. The chief executive of the Lifetime Care and Support Authority drew the committee's attention to the strong views of paediatric experts that it is nearly impossible to assess the long-term care needs of a brain-injured child where the child was injured when aged under five years, thus rendering the scheme's two-year interim participation period insufficient. On behalf of the authority he recommended a legislative change to provide that the interim participation period for children under five years of age at the time of injury be extended to five years.

Thus the committee has recommended that the Minister for Finance seek an amendment to the Motor Accidents (Lifetime Care and Support) Act 2006 to provide that children under three years of age when injured are not assessed for lifetime participation in the Lifetime Care and Support Scheme until they are at least five years old. This worthy amendment, which is based on strong medical advice, will greatly enhance the scheme in achieving its purposes. We ask the Government to act on that recommendation without delay. The second recommendation put forward by the committee relates to issues arising from the scheme's dispute resolution processes. Evidence was received by the committee that the scheme's non-judicial review process could be made more procedurally fair and transparent by the incorporation of an appeals process in respect of decisions pertaining to interim and lifetime participation, and that there should also be a right to independent legal representation. The committee saw merit in this view and accordingly recommended:

That the Lifetime Care and Support Authority, in liaison with the Lifetime Care and Support Advisory Council, formally consider the range of options for independent review of decisions and the provision of independent advice and advocacy in respect of applicants, interim participants and lifetime participants in the Lifetime Care and Support Scheme.

This should include the development of recommendations as to the desirability of and the most appropriate mechanisms for each.

I believe that such mechanisms as this recommendation proposes will help engender greater confidence in the scheme by those it is meant to help. I commend the report to the House.

The Hon. JOHN AJAKA [3.20 p.m.]: As a member of the Standing Committee on Law and Justice I speak on report No. 37 entitled "Review of the exercise of the functions of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council". I thank the Hon. Christine Robertson, chair of the committee, other committee members and the secretariat staff for their assistance and efforts. The Lifetime Care and Support Scheme is administered by the Lifetime Care and Support Authority and commenced operation on 1 October 2006 for children and on 1 October 2007 for adults. The scheme provides treatment, rehabilitation and care for people who have been catastrophically injured in a motor vehicle accident in New South Wales, and in so doing seeks to support accident victims in their struggle through recovery to lead active and meaningful lives. The scheme evolved out of the Motor Accidents Compensation Scheme, which provides compulsory third party insurance for people injured in motor accidents in New South Wales. This is the committee's first review of the scheme since its commencement. I refer now to the recommendations of the committee, the first of which states:

The Minister for Finance seek an amendment to the Motor Accidents (Lifetime Care and Support) Act 2006 to provide that children less than three years of age when injured are not assessed for lifetime participation in the Scheme until they are at least 5 years of age.

In making this recommendation, the committee recognised the difficulties of understanding the long-term ramifications of injuries incurred during childhood. For instance, when a young child has suffered a brain injury it is difficult to determine the seriousness of the damage and the full effect it has, and will have, on the child's development. The Lifetime Care and Support Authority explains that at present standardised assessment of children under three years is not possible and that the long-term effects of an injury are very difficult to predict before a child reaches the age of five years.

A child's brain is the most delicate and progressive organ within the body and does not reach its reasonable and potential development until the age of five. So to assess a child's long-term care needs under the age of three ultimately is meaningless because the assessment will result in an inadequate analysis. This amendment will extend the interim participation period for children under the age of three years at the time of the motor accident. This will allow the Lifetime Care and Support Authority to make its determination regarding lifetime participation at an age where a standardised assessment tool can be administered. This recommendation allows assessors to make proper and well-informed decisions concerning the child and their injury so that they receive the correct and proper care they deserve. This recommendation ultimately will rectify the eligibility criteria for children under and over the age of three.

Under the old criteria, children under the age of three were assessed and given a medical certificate by a specialist who testified that the child would most likely have a permanent impairment due to injury, resulting in the need for constant care. However, under the new criteria this will no longer be the case. Only children over the age of three—mainly at the age of five—will be assessed using WeeFIM, the paediatric adaptation of the Functional Independence Measure [FIM], which identifies at first instance whether the child will have an ongoing need due to injury. The assessment of children above the age of three will serve to reassure doctors and physicians that they are acting in the child's best health interests, and can provide some form of faith in their decisions concerning the lifelong care needs of that child. I refer now to recommendation 2, which states:

That the Lifetime Care and Support Authority, in liaison with the Lifetime Care and Support Advisory Council, formally consider the range of options for independent review of decisions and the provision of independent advice and advocacy in respect of applicants, interim participants and lifetime participants in the Lifetime Care and Support Scheme. This should include the development of recommendations as to the desirability of and the most appropriate mechanisms for each.

This recommendation's main reason relates to the fairness of the review process. Participants have the right to attain a proper appeals process regarding decisions concerning interim and lifetime participation, as well as those about the care and support to be provided and by whom it will be provided. The Law Society of New South Wales and the New South Wales Bar Association dismissed this particular facet of the recommendation, believing instead that independent legal representation and advice for participants would be the most effective response. It provides a professional and helpful advisory service that gives advice to seriously disabled or injured persons on ways to best challenge bureaucratic assessment of their needs.

The committee acknowledges that the assessment and the review of an assessment of a participant's treatment and care is a long and complex process. In both cases assessment involves medical reports and decisions on rehabilitation, care and support issues, and requires the time and expertise of medical practitioners and rehabilitation specialists. We cannot underestimate the hardship it places upon the participants and believe that this will provide the most appropriate mechanism for review of decisions within the scheme. Our main objective is to ensure that all participants receive reasonable and fair entitlements to various care and support arrangements by ensuring that all their rights are upheld and they are provided with good advice and information when needed.

The committee indicates the value in making use of the Lifetime Care and Support Advisory Council's role regarding this issue and, by doing so, drawing on its members' expertise. Initially this allows experts in catastrophic injury management to make accurate and sufficient decisions concerning participants. The final item within this recommendation to which I refer is the review-decision process. We recommend that the Lifetime Care and Support Authority, in consultation with Lifetime Care and Support Advisory Council, formally consider the range of options for independent review of decisions and judicial review whilst allowing the provision of independent advice and advocacy to potential and actual participants, with a view to recommending the preferred options for both. This offers greater and wider protection to participants who will benefit in the long term. Even though it is difficult to tamper with legislation, this provides an alternative that ensures participants are receiving proper assistance and advice concerning their issues.

The Hon. CHRISTINE ROBERTSON [3.27 p.m.], in reply: I thank the Hon. David Clarke and the Hon. John Ajaka for their contributions and concur with their observations. During the review by the Standing Committee on Law and Justice the Insurance Council of Australia raised the concern that decisions in respect of care and support in the Lifetime Care and Support Scheme may impact upon compulsory third party [CTP] insurers and sought a formal role in such decision-making. In future reviews the committee will watch with interest the boundary issues in respect of the Lifetime Care and Support Scheme and the compulsory third party scheme and determine whether they need to be addressed. We are mindful that in clarifying what is and is not a treatment, rehabilitation or care expense the Lifetime Care and Support Authority and the Motor Accidents Authority must balance fairly the interests of the Lifetime Care and Support Scheme participants, compulsory third party claimants and insurers.

A significant issue explored during this first view, which no doubt will inform future reviews, is the actuarial estimations for the financial liabilities of the scheme. The committee notes the concerns of the Law Society of New South Wales, informed by an independent actuarial review of the Lifetime Care and Support Authority's cost estimations, that those costings may not be accurate and may ultimately impact upon participants' entitlements. Nevertheless, at this stage the committee accepts the authority's advice that in the absence of sound and comprehensive data it reasonably based its estimates on a number of inherently uncertain assumptions. We note also that the authority has been candid about this fact. In addition, the authority has indicated that its assumptions and estimates are revised annually, based on the experience of the scheme. The committee further notes the authority's assurance that participants' entitlements cannot be reduced as more people enter the scheme. Rather, liabilities will be fully funded each year by the levy on green slips and by investment income.

Notwithstanding these assurances, the committee will monitor the scheme's financial liabilities over time. In managing the scheme's estimated and real financial position, due consideration needs to be given to the significant sums of money involved, the entitlements of and outcomes for participants, and the imposition upon New South Wales motorists of the medical care and injury services levy. Concerns were raised during the review about the cost to motorists of the medical care and injury services levy and about the ranking system by which individual motorists' levies are calculated. In addition, stakeholders sought greater transparency through the itemisation of each of the charges constituting premiums.

The committee addressed that last issue in its ninth report entitled "Review of the exercise of the functions of the Motor Accidents Authority and the Motor Accidents Council " and recommended that the Motor Accidents Authority, in consultation with the Motor Accidents Council, consider by 30 June 2009 the advantages and feasibility of further itemisation of the medical care and injury services levy on compulsory third party green slips. The argument against that was that there is a massive amount of information on green slips already. It is very important when providing that type of information that it is clear and open, for the benefit of those requiring information, and that it is not too complicated. The authorities are working through that issue. The committee trusts that the information provided by the authority addresses the concerns in this area and clarifies the administration of the levy.

In conclusion, the committee considers that many of the issues raised during the first review of the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council were perhaps to be expected during the establishment of such a substantial and complex scheme. Our report observes that, to its credit, the authority has been open in acknowledging some of the scheme's teething problems, and has displayed a readiness to consult and work with stakeholders to address them. It remains to be seen which of these issues dissipate as the scheme's implementation proceeds and which coalesce into areas specifically needing further examination and action. At this stage the committee considers that the scheme's implementation is proceeding well.

Once again we congratulate the New South Wales Government on the establishment of the scheme and note the profound and positive outcomes that it is intended to bring about. We also applaud the model that it represents for other jurisdictions, not only in its goals but also in its design and administration. The committee again acknowledges the substantial work of both the Lifetime Care and Support Authority and the Lifetime Care and Support Advisory Council, as well as the Motor Accidents Authority, in establishing the scheme and commencing its implementation. What was very interesting about listening closely to evidence about the scheme was the new, good and effective models of care within Health that are being implemented within the rehabilitation sector and in relation to the scheme. The committee will watch the scheme with great interest.

Pursuant to standing orders debate interrupted and set down as an order of the day for a future day.