In November, Sarah wrote to the Federal Attorney General, Mark Dreyfus KC MP, asking him to refer the compensation arrangements for injured patients to the Australian Law Reform Commission for an enquiry. She copied the letter to several lawyers including the Hon. Professor Gareth Evans AC KC, who was Federal Attorney General then Foreign Minister under the Hawke and Keating governments. In early January Gareth Evans wrote to Mark Dreyfus, saying: “This is to pass on, with my support for whatever it’s worth, a plea from Sarah Walls – a former journalist I used to know in my foreign minister days - for you to have a close look, if you haven’t already, about what might be done to implement the no fault compensation scheme we have dreamed of since Whitlam times, but which has run into the sand ever since, particularly in the fraught context of medical injury compensation. […] It’s decades since I wrestled with these issues myself, and don’t for a moment underestimate the degree of difficulty – not to mention expense – likely involved, but we are a reforming party, and hopefully government.” Please share our petition.

In late January Sarah received a reply that made her wonder how to focus the public spotlight on Australia’s injured patients, a group that (until now) has had no political representation. Only 1% to 3% of injured patients ever receive compensation for their healthcare injury. The only way to obtain compensation is to sue for medical negligence, a costly, stressful, time-consuming and unpredictable process. In addition, since the “tort law reforms” of the early 2000s, the statute law on medical negligence has been massively weighted against injured plaintiffs. For over half a century there has been talk about a no-fault compensation scheme for healthcare injuries. Talk but no action.

In her letter, Sarah said the compensation arrangements raised two questions: whether the current statute law provides equality before the law between injured-patient plaintiffs and the health professionals, hospitals, insurance companies and government authorities which defend medical negligence claims; and whether injured patients and Australian taxpayers would be better served by a national no-fault compensation scheme for healthcare injuries. 

She said: “I believe the answer to these questions is respectively No and Yes. I realise that medical negligence law is usually considered the province of the states, but there is a precedent for action by the federal government: the establishment in 2002 of the Review of the Law of Negligence.”

Sarah explained that she and Vickie were campaigning for a national no-fault compensation scheme for injured patients; restoration of funding for the collection of national data on healthcare compensation claims; and a fairer legal framework for medical negligence claims. She listed the advantages of no-fault compensation schemes but said that she and Vickie believed that common law rights should be retained, as the experience in countries with both systems is that only a minority of claims are pursued through the courts. 

The 2002 negligence review panel, established following an insurance crisis, made recommendations that were subsequently adapted by each state and territory in its medical negligence law. Sarah pointed out that both legally qualified members of the panel subsequently expressed concerns about the so-called reforms, acknowledging that they had shifted the balance even further in favour of the defendants. She gave eight examples of changes that could be introduced to make the law fairer for injured patients.

In late January Sarah received a reply from the Federal Attorney General’s office: “I thank you for bringing this matter to the government’s attention. The ALRC is an independent Australian Government agency that conducts inquiries and provides recommendations for law reform to government. It is a matter for government to identify an area of Commonwealth law that needs to be updated, improved, or developed and to then refer it to the ALRC for inquiry. Accordingly, there is no avenue for public submissions into future ALRC inquiries. The public is however, always able to make submissions to the ALRC during an active inquiry. You may wish to continue to monitor the ALRC’s website for future consultation opportunities and for information on how to make a submission during an active inquiry.”

So the Federal Attorney General seems unlikely to take action at present. An ALRC enquiry is not the only way that the issue could be raised. The Federal Attorney General has reinstituted regular meetings with the state attorneys general, which were abandoned under the Coalition government, to discuss areas of the law where greater uniformity is desirable. Defamation is the example most frequently given. The law on medical negligence has been biased against injured plaintiffs for 20 years. Fair reform is urgently needed, and should be implemented uniformly across the country. Perhaps the plight of Australia’s injured patients could be placed on the agenda for the federal and state attorneys general to discuss.

But for that to happen, we need more public support and media exposure. As Gareth Evans pointed out, national no-fault compensation has been talked about for half a century. It’s time for action. 

Please pass our petition on to anyone who you think might sign. If you live in Victoria, please consider joining Vickie’s charity, FairCare Alliance. Governments always listen more to organisations representing groups of people working together for a worthy cause, rather than simply to individuals.

If you can spare a few dollars, please donate so that the petition is distributed more widely.

With grateful thanks for your continuing support,

Sarah and Vickie

Note: Photo of Professor the Hon Gareth Evans AC KC sourced from the IAEA Imagebank on flicker.