Medico-legal, public health and vaccination experts say national cabinet’s move to implement a no-fault indemnity scheme for GPs administering Covid-19 vaccines is unnecessary and confusing as doctors are already highly covered, but have welcomed added protections for patients.
The government on Monday night encouraged Australians to go against expert advice from the Australian Technical Advisory Group on Immunisation (Atagi) and ask their GPs about receiving the AstraZeneca vaccine if they did not want to wait to become eligible for Pfizer.
The Covid-19 commander, Lt Gen John Frewen, said on Monday night: “For those people who want to get access to a vaccine now who can’t get access to Pfizer, they can make an informed decision to get access through GPs.”
Frewen said the national cabinet decision to implement a new no-fault indemnity scheme for GPs who administer Covid-19 vaccines would provide them with added reassurance. The prime minister, Scott Morrison, said “we are providing the indemnity scheme for those general practitioners, so they can actively engage with you, and you can make the best decision for your health”.
Senior medical negligence lawyer at Maurice Blackburn, Tom Ballantyne, said GPs performed procedures every single day that carried risks for which they were covered, and the Covid-19 vaccines were no different.
“People don’t seem to understand how hard it is to sue doctors,” Ballantyne said.
“The starting point to this kind of conversation is ‘who is at fault here?’ The risks of clotting now are very well known, and as long as a GP highlighted them there is just no way there could ever be a cause of action against a GP. Any action would be against the vaccine manufacturer under Australian consumer law, and even that is extremely fraught. They’ve already provided indemnity to the manufacturers.
“Even if a doctor hasn’t provided informed consent those cases are still very tricky. As long as they’re not papering over the risks, there’s just no cause of action. And because there’s no cause of action, there’s no need for a no-fault or an indemnity.”
Ballantyne said the government may have announced the scheme to give GPs reassurance at a time of heightened public interest in and concern about vaccines, and to bolster the vaccine rollout. But the announcement risked having the opposite effect, he said.
“It just seems absurd, frankly, to be getting the public focused on the fact that their GP, pharmacist or nurse might be doing something wrong in trying to get the population vaccinated with an approved vaccine, even though they are clearly just following government guidelines in the middle of a global pandemic,” he said.
On Tuesday the health minister, Greg Hunt, said the indemnity scheme would also cover vaccine recipients.
Cameron Stewart, a member of Sydney Health Law and a professor of health, law and ethics, said a government-funded vaccine-injury scheme for consumers who would then be covered in the rare and unlikely event of a severe side-effect was welcome, and something experts had been calling for for decades.
“That part of it is a welcome change, seeing patients covered for their injury,” he said. “That’s exactly the kind of scheme we need.
“We need to see the detail, but if it indeed does cover patients rather than just protecting doctors, that’s welcome. The doctors don’t need the scheme, and don’t face much of a legal risk. The part of the scheme that applies to them is surely purely just about added reassurance.”
Prof Julie Leask has co-led advocacy on a patient scheme for several years. An immunisation expert with the University of Sydney’s Susan Wakil School of Nursing and Midwifery, she said while vaccine-related injuries were extremely rare, any ongoing impacts could be serious and may not necessarily be covered by Medicare or the national disability insurance scheme.
“We have written to the government recently to request a vaccine injury compensation scheme for patient but never received a reply,” she said.
“Frankly, it’s outrageous that the government has not brought in such a scheme before, when they were warned that this was important last year before we even knew about the AstraZeneca vaccine risk, or any other vaccine risk for that matter. We do have to be careful with language, because the anti-vaccination activists like to co-opt the language and use talk of vaccine injury to dissuade everybody from vaccinating.
“But we shouldn’t be scared of what anti-vaxxers will say about policies, we should do policy because it’s right and fair and just.”
Guardian Australia understands the scheme only covers commonwealth vaccination providers, and not the states. There will be an administrative claims avenue for patients, though the details are still being finalised.
The president of the Australian Medical Association, Dr Omar Khorshid, said the indemnity scheme was necessary for doctors, and he had been working through the details with the federal government.
“Even if the patient is unsuccessful in taking action, the GP has to be dragged through a very painful legal process that’s distressing,” Khorshid said. “And that’s what we’re trying to avoid.” He said the scheme would be retrospective, covering health professionals including pharmacists and GPs.
But he acknowledged even if the scheme was not retrospective, those GPs and nurses who had already administered AstraZeneca vaccines to those under 60 had not done anything wrong. “They would have to have done something grossly negligent, like putting the vaccine in the microwave or something,” he said.
