Page 943 - Week 03 - Thursday, 10 April 2014
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that I had also flagged with the government. I understand the government will also support this amendment. The guidelines will be very important for the overall operation of the scheme, and there should be scope for them to come before the Assembly. Part of the rationale for supporting the bill in its form today is that we have the future option of looking at the detail of its operation. So I thank Mr Smyth for putting forward that particular amendment.
Another issue of some contention is which of an applicant’s costs the lifetime care and support commissioner will reimburse. The bill proposes that the commissioner will pay for legal costs in relation to determining whether an injury was caused by a motor vehicle accident or not. However, legal costs are not payable for other legal services, such as those provided to a participant in the scheme in relation to the assessment of the participant’s treatment and care needs.
I understand why the Law Society has suggested that the commission should pay other legal costs as well. But I also understand the rationale for leaving the system largely free of legal representation. The rationale is that the relevant assessments will be made by medical experts, not by lawyers. Lawyers are relevant to the question of whether something is a motor accident or not—it is a technical and legal question. Questions of eligibility and the standard of care are to be assessed by health experts. External legal advice will be available where necessary.
I am inclined to agree with Mr Barr’s assessment of the scheme, as detailed in his reply to the scrutiny committee, that the scheme’s review process is adequate, that it will involve people with relevant expertise, and that it is appropriate to leave the assessments to a panel of healthcare professionals. In this way it also makes sense to me that the decisions remain with this panel, rather than be remade on merits review by ACAT. I do note, though, that judicial review remains available, leaving an applicant open to challenge decisions, for example, on the basis that not all relevant matters were taken into consideration.
I am also aware of the argument that an injured person may need an advocate to engage with the lifetime care scheme. I do not believe that this is an issue that specifically needs legal representation; I would expect that they primarily need administrative support, to enter the system, and then to be assessed in the usual way by the commissioner.
A final issue of contention is the issue of whether the commissioner should reimburse a participant in the scheme for services that they did not have to pay for. An example might be for care that is provided to them by a family member at no cost. I understand the sentiment behind this amendment, and family and carers certainly provide a lot of unacknowledged work in situations like this. One of the benefits of the scheme itself, of course, is that it should remove a large burden from family and carers because it will provide for the care of an injured person. The bill leaves the discretion to pay for gratuitous services in special circumstances. I have received guidance from the minister that these special circumstances will be similar to those allowed in New South Wales—for example, where there is geographic isolation or there are special cultural circumstances. These will be set out in the guidelines, which, now that this will be a disallowable instrument, will come before the Assembly for consideration. I
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