In PB v WorkCover Pty Ltd (2018] QCAT 138 WorkCover conceded that it breached IPPs 1, 3 and 11 regarding the collection and disclosure of PB’s medical records in relation to a workers’ compensation claim. QCAT stated that 'WorkCover made a litany of errors in the course of processing his claim. Many of these errors were trivial, although some had more serious consequences'. QCAT concluded that there had also been breaches of IPPs 2 and 4. It ordered WorkCover to pay $5,000 to the complainant. In the event that WorkCover holds any of the original medical records it was return them to the respective medical practices.
QCAT characterised WorkCover’s breaches as ‘careless rather than malicious’.
In relation to costs QCAT states
I am not prepared to order WorkCover to reimburse PB for his expenses. The manner in which the proceeding has been run before the Tribunal has stemmed in large measure from the extravagant and exorbitant compensation claim made by PB. PB initially claimed compensation in the vicinity of $4 million, notwithstanding the statutory maximum of $100,000 clearly set out in s 178(a)(v). Had PB applied an element of sobriety to his claim, or at least claimed compensation within the statutory limit, it is likely that he and WorkCover would have been spared considerable expense in the conduct of the proceeding.QCAT notes that this is the second case in the Queensland privacy jurisdiction with an award of financial compensation by QCAT. In RM v Queensland Police Service, QCAT described the Service’s breach as having been ‘careless rather than malicious’. It ordered compensation of $5,000.
The report of the First Principles Review of the Medical Indemnity Insurance Fund for the Department of Health states
In May 2002, the largest Medical Defence Organisation (MDO) in Australia was placed into provisional liquidation, which resulted in a potential lack of indemnity cover for many medical practitioners. At this time, insurers were also experiencing increased claims costs, uncertainty about the way courts were determining negligence cases (increasing the risk in setting premiums), reduced profitability and a fall in investment returns. As a result, medical practitioners were also experiencing significant increases in premiums (with some reportedly paying over a third of their incomes for indemnity cover), while others considered leaving the profession or ceasing high-risk procedures. If the MDO had gone into liquidation, it was estimated that approximately 60% of Australia’s medical practitioners would have been without medical indemnity cover and patients may not have been able to obtain redress for medical negligence.
Against this backdrop, the Australian Government announced in October 2002, a range of measures including premium subsidies, government assistance for high-cost claims and improved regulation of the medical indemnity industry. In announcing the measures, the Prime Minister and the Assistant Treasurer stated that the arrangements would be monitored and that “in the long term hopefully these subsidies can be phased out".
Since 2002, the Australian Government has expended over $400 million to 30 June 2016 on the schemes. Expenditure for the 2016-2017 financial year was $62.1 million, across seven discrete schemes, all of which form part of what is now known as the Indemnity Insurance Fund (IIF). xx Collectively the schemes comprising the IIF are designed to subsidise those privately practising medical practitioners with high premiums compared to their income (or practising as procedural general practitioners (GPs) in rural and remote areas) and to meet part or all of the claims costs associated with high or exceptional claims, or claims made when a privately practising medical practitioner or midwife has ceased practice.
Consistent with the Terms of Reference, the purpose of this First Principles Review (FPR) is to answer three questions:
1. To what degree has Commonwealth intervention been successful in providing stability to the medical indemnity insurance industry, availability of affordable indemnity insurance, and viability for professions, and patients, particularly in relation to high cost claims?
2. What is the appropriate level of Commonwealth support needed to continue stability, affordability and accessibility of indemnity insurance for medical practitioners and eligible midwives?
3. Are the seven schemes that collectively comprise the IIF fit for purpose or might improvements be made?
The Review's recommendations are summarised as
Should the Government wish to continue its current contribution to medical indemnity, a number of changes could be made to the schemes to improve efficiency, better target the schemes, increase transparency, better enable monitoring and reduce unnecessary burden on insurers and medical practitioners. ...
If Government is seeking to gradually reduce the level of Commonwealth support (and achieve cost savings), further changes could be considered following the implementation of the monitoring framework and taking into account the outcomes of further consultation. Consideration could be given to:
- restricting eligibility for the PSS such that medical practitioners earning over a certain income in annual private billings (for example, $500,000) would not be eligible for the PSS
- whether there is an ongoing need to cap premiums paid by privately practising midwives and to subsidise the cost of high claims (noting the absence of any high claims to date and the potential for other insurers to enter the market), and
- introducing a levy in association with the HCCS such that the Commonwealth’s contribution is steadily reduced, without increasing volatility to insurers and without disproportionately impacting smaller insurers and new entrants.
Should Government agree to the Review recommendations, it is proposed that:
- the Department work closely with the sector to co-design the implementation detail. The Department could convene a regular meeting of key stakeholders (for example, every three months) to discuss implementation options for the reforms, review progress on the reforms and consider any changes needed to legislation and/or contracts (noting standard Government constraints relating to sharing of information subject to Government/Parliamentary consideration), and
- the changes arising from the Thematic Review progress as part of the reforms recommended by this First Principles Review
As legislation will require amendment (and an IT system will require development), a 12 to 24 month timeframe for some reform elements would be realistic. A reform package could commence from mid-2019, with some phasing-in of changes depending on the Government’s preferred reform package.
