The National Injury Insurance Scheme (NIIS) will run parallel with the NDIS. It is intended to provide lifetime support for those catastrophically injured in motor vehicle and workplace accidents or from medical treatment injury and general accidents in the home or community.

It follows a Productivity Commission recommendation that State and Territory Governments should develop no-fault care and support arrangements for injuries arising from medical treatment as part of a broader NIIS.  Medical treatment injuries are the third category of significant disabilities caused by an accident after motor vehicle and work place accidents, where those injured would be eligible for care support within the NDIS if no NIIS existed.

A draft discussion paper prepared by Treasury officials is examining issues around possible minimum benchmarks for compensation for medical injury within the NIIS, and contains a number of complex issues yet to be resolved.  The paper has been prepared in consultation with the medical profession, medical indemnity insurers, actuaries and the legal profession.

It is meant to form the basis of a general approach to minimum benchmarks for a medical treatment injury stream of an NIIS. Jurisdictions would have the choice to provider wider eligibility and/or a higher level of care and support as the cost and impact of the NDIS and NIIS become clearer, or to align with their own priorities or existing state based arrangements.

A potential funding source exists for a medical treatment stream of an NIIS – such as a premium on medical practitioners and hospitals medical indemnity insurance – whereas the NDIS is being funded from consolidated revenue. If this funding source can be accessed successfully the additional cost to taxpayers may be lower.

Patient outcomes may also be better under an NIIS than the NDIS. An example, if a medical treatment stream of an NIIS covered the health costs associated with catastrophic treatment injuries, such as rehabilitation services and acute care, this may support more integrated care.  The Productivity Commission also noted that the experience of jurisdictions with no-fault accident schemes shows that co-ordinating optimal transitions through the health system and making available high quality rehabilitation facilities, enhances participant outcomes and may in some cases reduce the lifetime cost of injury.

According to Spinal Cord Injuries Australia policy officer, Tony Jones the idea of the NIIS is that each state adopt a no-fault scheme similar to Victoria and New South Wales where people are already covered for motor accident injuries under the green slip certificate.

“The intention is that it will be broadened to include work injuries and medical injuries with similar insurance measures that would be covered under the NIIS. As it stands the boundaries have to be worked out for those with general injuries that happen around the home or medical injuries.  There is not a great deal of information in the public domain at the moment for these other areas,” Jones told F2L.

He said the NIIS is intended to be state administered using a federated model.

Unlike the 65 age ceiling for the NDIS, the motor accident and work place insurance in NSW has no age limit but Jones said there is still discussion about  whether this will be an included in the NIIS.

“The NDIS adopts a functional approach, in contrast to the approach taken so far in motor vehicle and workplace accident benchmarks. For this reason, it probably makes sense for the benchmarks for medical indemnity to adopt an approach similar to other streams of the NIIS,” he said.

Injuries wholly or substantially caused by a person unreasonably withholding or delaying their consent to undergo treatment might also be excluded from the scheme. This exclusion is contained in the New Zealand Injury, Rehabilitation and Compensation Act 2001. This exclusion could potentially be captured under a broader category of exclusions which would fall under the broad heading of “contributing negligence”.

Individuals 65 years and over at the time they acquire a disability are ineligible for the NDIS. This exclusion could be mirrored by not requiring the NIIS to cover individuals who are catastrophically injured as a result of medical treatment when 65 years and over, or alternatively an age linked to the retirement age. It would mean that an individual injured while undergoing medical treatment without recourse to common law may be supported by their family, supplemented by aged care services – to the extent that the individual is eligible and the services are available.  The injured person would receive medical treatment and rehabilitation through the public health system, and to the extent that no appropriate care services are available, may occupy a hospital bed for a considerable time. States would retain the right to exceed the minimum benchmarks by including this cohort in the NIIS.

It can be argued that extending this inclusion to the medical treatment stream is not unreasonable. Firstly, it would have no financial impact on the NDIS because these people are ineligible for the NDIS. Recent roles and responsibility changes mean that the Commonwealth is now clearly responsible for care and support of people aged 65 and over. Including them in a state funded and administered NIIS would arguably run counter to these changes. If this proposed exclusion was accepted, this issue could be revisited in a future review of the NIIS, particularly if the NDIS was expanded to include this cohort.

However, there are strong reasons to include individuals aged 65 and over in the medical treatment stream of the NIIS.  It could create better patient outcomes by covering the health costs associated with the injury as well as acute care and rehabilitation services. Although those aged over 65 can be excluded from the NDIS on the grounds there is a blurred line between disability and the effects of ageing, it is difficult to extend this argument to the NIIS because a catastrophic medical treatment injury is a more distinct incident. Including all individuals in the medical treatment stream regardless of their age would be consistent with arrangements for motor vehicle and workplace accidents and would support the intention of the NIIS to provide lifetime care and support to all catastrophically injured people, regardless of the cause of injury, the discussion paper noted.