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Vaccine Legislation – Legal update with OMB
Vaccination Legislation
Amid COVID-19 vaccination conspiracy theories on social media, political campaigns and patient advocacy groups, one question remains unanswered and that is “who is liable in the event one develops adverse side-effects from the vaccine”?
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Australia has a long-standing compulsion for systematic and routine vaccines that are at time a legislative requirement. These include, ‘No Jab No Pay’ and ‘No Jab No Play’ in some Australian states. While some vaccines may be mandated, Australia does not provide a no fault injury compensation scheme for rare vaccine injury.
No Fault Compensation Scheme – What is it?
A no fault vaccine compensation scheme recompenses individuals who have sustained an injury following the administrations of a certified manufactured vaccine. Australia, in contrast to international counterparts, USA, UK and New Zealand, does not have a no fault vaccine compensation scheme. This means that an individual that sustains a vaccine related injury must bear the associated costs in accessing treatment via our publicly funded health systems and will not obtain any compensation for their pain and suffering. As a result, those affected are forced to embark on a complex and expensive litigation process to seek compensation and related expenses.
Australia’s Current Position
Australia currently has a faultbased system for handling negligence claims. The process is long and arduous and can take years to be settled or decided. The issue associated with the current fault-based system is that settlement may not cover long-term costs associated with care and other expenses. Recently, Prime Minister Scott Morrison announced a new vaccine indemnity scheme. This scheme means that health practitioners that have been found liable as a result of adverse events from administering the COVID-19 vaccines will be compensated by the Commonwealth of Australia. It is well established that Pfizer is the vaccine of choice for under-60s in Australia, however recently the national cabinet stated that “GPs can continue to administer the AstraZeneca to Australians under 60 years of aged with informed consent”. The real implementation of the indemnity scheme therefore is to design to support allied health practitioners and reduce the real and perceived impediments in administering the AstraZeneca vaccine to the under-60’s population. It seeks to shift exposure to possible claims from existing insurers to the Commonwealth of Australia.
This does not negate nor prohibit patients suing health practitioners for negligent advice in relation to the purported risks and benefits of a particular vaccine. This falls well short of a no fault injury compensation scheme to allow for compensation award to include income indemnities, reimbursement of medical expenses, personal assistance expenses and travelling expenses that be resultant of the vaccine injury.
Moving Forward
The current use of ‘first in human’ phase III clinical trial roll out makes it foreseeable albeit rare that a vaccine related injury may occur. Notably, rare vaccine injury is not a new phenomenon. Guillain-Barre syndrome is another rare vaccine related injury that is caused from the influenza vaccine.
With the current climate and public questioning the vaccines safety as a result of blood clots occurring from the AstraZenaca vaccine, one would think that the Australian Government ought to implement a no fault vaccination scheme. Of course, if it is the proposition of the Government that being vaccinated is for the benefit of society, society should be safeguarded from possible risk of a vaccine injury. It follows that the Australian Government should recompense individuals who fall victim of a vaccine related injury. The implementation of a no fault vaccination scheme could increase public trust in the system rather than undermine current hesitancy and lack of confidence in the vaccine program. Hence, it would be timely that Australia now legislate and introduce a no fault compensation scheme for all vaccinations. This is a crucial step in navigating a pathway forward from the COVID-19 pandemic.
OMB Solicitors Level 1, 9 Seabank Lane, Southport QLD | Tel (07) 5555 0000 | omb.com.au
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