Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)

Motor Accidents (Lifetime Care and Support) Act 2006 No 16 An Act to provide a scheme for the lifetime care and support of persons injured in motor accidents; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Motor Accidents (Lifetime Care and Support) Act 2006. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) Section 66 (Auditor-General to report on Costing Study) commences on the date of assent to this Act. 3 Definitions (1) In this Act— approved provider—see section 11C (2). assessed treatment and care needs—see section 11A (2). attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services. Authority means the Lifetime Care and Support Authority of New South Wales constituted by this Act. chief executive means the chief executive of the Authority appointed under this Act. excluded treatment and care needs—see section 5A (2). Fund means the Lifetime Care and Support Authority Fund established by this Act. insurer of a claim means an insurer for the purposes of Chapter 4 (Motor accident claims) of the Motor Accidents Compensation Act 1999 in relation to the claim. LTCS Guidelines means guidelines issued by the Authority under section 58, as in force from time to time. motor accident injury means injury caused by a motor accident. Note— Section 4 provides for the motor accident injuries to which this Act applies. participant in the Scheme means a person accepted as provided by this Act as a participant in the Scheme (either as a lifetime participant or as an interim participant). relevant Scheme commencement date, with respect to a person who has suffered motor accident injuries, means— (a) 1 October 2006 if the person was under 16 years of age at the time of the motor accident that caused the injuries, or (b) 1 October 2007 in any other case. the Scheme means the scheme provided for by this Act for the lifetime care and support of persons injured in motor accidents. treatment and care needs—see section 5A. treatment and care needs assessment means an assessment under Part 4 of the treatment and care needs of a participant in respect of the participant's motor accident injury. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Application of Act (1) This Act applies only in respect of motor accident injuries suffered by a person as a result of a motor accident occurring on or after the relevant Scheme commencement date. Note— Section 7A provides for a limited exception to this provision. (2) This Act applies only in respect of motor accident injuries resulting from motor accidents occurring in New South Wales. Note— Section 7B provides for a limited exception to this provision. (3) This Act applies in respect of a motor accident injury only if there is a motor vehicle involved in the motor accident concerned that has motor accident insurance cover for the motor accident (within the meaning of section 3B of the Motor Accidents Compensation Act 1999), whether or not all the motor vehicles involved in the motor accident have motor accident insurance cover for the motor accident. (4) This Act applies in respect of a motor accident injury whether or not the injury was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle or of any other person and so applies even if the injured person was at fault (whether as owner or driver of the vehicle or otherwise). (5) The regulations may make provision (including provision of a savings or transitional nature) for or with respect to limiting the application of this Act or any specified provisions of this Act to specified classes of persons. 5 Interpretation—Motor Accidents Compensation Act 1999 Words and expressions used (but not defined) in this Act have the same meanings as in the Motor Accidents Compensation Act 1999. 5A Treatment and care needs (1) For the purposes of this Act, the treatment and care needs of a participant in the Scheme are the participant's needs for or in connection with any of the following— (a) medical treatment (including pharmaceuticals), (b) dental treatment, (c) rehabilitation, (d) ambulance transportation, (e) respite care, (f) attendant care services, (g) aids and appliances, (h) prostheses, (i) education and vocational training, (j) home and transport modification, (k) workplace and educational facility modifications, (l) such other kinds of treatment, care, support or services as may be prescribed by the regulations under this paragraph. (2) Despite subsection (1), the treatment and care needs of a participant do not include any treatment, care, support or services of a kind declared by the regulations to be excluded treatment and care needs. Part 2 Participation in Scheme 6 (Repealed) 7 Eligibility for participation in the Scheme (1) A person who has suffered a motor accident injury is eligible to be a participant in the Scheme in respect of the injury if the person's injury satisfies the criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme. (2) Participation in the Scheme may be as a lifetime participant or an interim participant and for that purpose the LTCS Guidelines are to establish criteria for eligibility for lifetime participation and criteria for eligibility for interim participation in the Scheme. (3) A person is not eligible to be a participant in the Scheme in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, for future economic loss in respect of the treatment and care needs of the participant that relate to the injury. (4) The LTCS Guidelines may make provision for or with respect to eligibility for participation in the Scheme, including provision for or with respect to the criteria that a motor accident injury must satisfy for the injured person to be eligible for participation in the Scheme in respect of the injury and the determination of whether a motor accident injury satisfies those criteria. 7A Persons injured before commencement of Scheme may "buy in" (1) A person who has suffered a motor accident injury as a result of a motor accident occurring before the relevant Scheme commencement date (a pre-commencement injury) may be accepted as a lifetime participant in the Scheme if the person pays to the Authority, for payment into the Fund, a contribution determined by the Authority. (2) The contribution is to be the amount that the Authority determines as the amount required to fund the treatment and care needs of the person as a lifetime participant in the Scheme in respect of the injury. (3) A person is eligible to participate in the Scheme in respect of a pre-commencement injury only if the person would have been eligible to participate in the Scheme— (a) had the motor accident occurred immediately after the relevant Scheme commencement date, and (b) if the person has been awarded damages in respect of the injury—had those damages not been awarded. (4) An application for a person to become a participant in the Scheme in respect of a pre-commencement injury cannot be made by an insurer. (5) The LTCS Guidelines may make provision for or with respect to how a person's contribution for participation in the Scheme in respect of a pre-commencement injury is to be determined. 7B Persons injured in motor accidents occurring outside NSW may "buy in" (1) A person who has suffered a motor accident injury as a result of a motor accident occurring outside New South Wales (whether before or after the commencement of this section) may be accepted as a lifetime participant in the Scheme if the person pays to the Authority, for payment into the Fund, a contribution determined by the Authority. (2) The contribution is to be the amount that the Authority determines as the amount required to fund the treatment and care needs of the person as a lifetime participant in the Scheme in respect of the injury. (3) A person is eligible to participate in the Scheme under this section only if the person would have been eligible to participate in the Scheme— (a) had the motor accident occurred in New South Wales, and (b) if the person has been awarded damages in respect of the injury—had those damages not been awarded. (4) An application for a person to become a participant in the Scheme under this section cannot be made by an insurer. (5) The LTCS Guidelines may make provision for or with respect to how a person's contribution for participation in the Scheme under this section is to be determined. 8 Application for participation in the Scheme (1) An application for a person to become a participant in the Scheme in respect of a motor accident injury is to be made to the Authority and can only be made by or on behalf of the person or by the insurer of a claim made by the person in respect of the injury. (2) An application by an insurer does not require the consent of the person. (3) The State Insurance Regulatory Authority may direct the insurer of a claim made by a person in respect of an injury to make an application for the person to become a participant in the Scheme, and the insurer must comply with such a direction. (4) An application is to be made in the form approved by the Authority and is to set out or be accompanied by such particulars and information as may be required by the approved form. (5) The Authority may require the injured person to provide authorisation for the Authority to obtain information and documents relevant to the motor accident injury from specified persons in connection with the application. (6) The LTCS Guidelines may make provision for or with respect to applications to become a participant in the Scheme, including provision for or with respect to— (a) the making and determination of applications (including the information required to be provided in connection with an application), and (b) requiring an insurer to pay the costs of any assessment required by the LTCS Guidelines in connection with an application, and (c) imposing restrictions on the time within which an application can be made or requiring the deferring of the making of an application until an injury has stabilised. 9 Acceptance as a participant (1) A person becomes a participant in the Scheme if the Authority is satisfied that the person is eligible to be a participant and accepts the person in writing as a participant in the Scheme, either as a lifetime participant or an interim participant (according to the person's eligibility). (2) If the Authority is satisfied that a person is eligible to be a participant and that application for the person's acceptance as a participant has been duly made, the Authority must accept the person as a lifetime participant or an interim participant (according to the person's eligibility). (3) A person accepted as an interim participant must be accepted as a lifetime participant if the Authority becomes satisfied during the person's interim participation in the Scheme that the person is eligible for lifetime participation in the Scheme. (4) A person accepted as a lifetime participant in the Scheme remains a participant for life. (5) A person 3 years of age or over who is accepted as an interim participant remains an interim participant for a period of 2 years only. (5A) A person under 3 years of age who is accepted as an interim participant remains an interim participant until the person is 5 years of age. (5B) If a person who is an interim participant is accepted as a lifetime participant, the person ceases to be an interim participant on that acceptance and then remains a participant for life. (6) A person cannot be accepted as an interim participant more than once in relation to the same motor accident injury. (7) The expiration of a period of interim participation in the Scheme does not prevent subsequent acceptance of the person as a lifetime participant in the Scheme. 10 (Repealed) 11 Effect of Scheme on motor accident compensation claims and limitation periods (1) This Act does not limit or otherwise affect the application of the Motor Accidents Compensation Act 1999 in respect of a motor accident injury of a person who is or who is eligible to become a participant in the Scheme, except as specifically provided by that Act. (2) While a person is an interim participant in the Scheme in respect of an injury, time does not run for the purposes of section 109 (Time limitations on commencement of court proceedings) of the Motor Accidents Compensation Act 1999 or a provision of the Limitation Act 1969 in respect of a cause of action on a claim for damages that relate to the injury or to any other injury suffered by the person as a result of the motor accident concerned. Part 2A Payments under Scheme 11A Assessed treatment and care needs of participants to be paid for by Authority (1) The Authority is to pay for all of the reasonable expenses incurred by or on behalf of a person in relation to the assessed treatment and care needs of the person while the person is a participant in the Scheme. (2) The assessed treatment and care needs of a person who is a participant in the Scheme are those treatment and care needs that are assessed by the Authority, in its treatment and care needs assessment, to be treatment and care needs that— (a) are reasonable and necessary in the circumstances, and (b) relate to the motor accident injury in respect of which the person is a participant. (3) No expenses are payable in respect of— (a) excluded treatment and care needs, and (b) treatment and care needs that are not assessed treatment and care needs. (4) As an alternative to paying the expenses for which it is liable under this section as and when they are incurred, the Authority may pay those expenses by the payment to the participant of an amount to cover those expenses over a fixed period pursuant to an agreement between the Authority and the participant for the payment of those expenses by the participant. (5) The LTCS Guidelines may make provision for or with respect to determining which treatment and care needs of a participant in the Scheme are reasonable and necessary in the circumstances and relate to the motor accident injury in respect of which the person is a participant. 11AA Option of contribution to other cost effective expenditure for meeting treatment and care needs (1) The Authority has the option of satisfying its liability under this Part to pay for expenses incurred in relation to a participant's assessed treatment and care needs by contributing to alternative expenditure (incurred by or on behalf of the participant) that the Authority is satisfied will provide for those needs in a cost effective manner. (2) The Authority's contribution to alternative expenditure is limited to the amount of a reasonable contribution to that expenditure and is not to exceed the amount for which the Authority would otherwise have been liable under this Part to pay for expenses incurred in relation to a participant's assessed treatment and care needs. (3) An assessment of the option of contributing to alternative expenditure under this section is part of the assessment of the treatment and care needs of a participant in the Scheme. Note— Because an assessment of this option is part of the assessment of the treatment and care needs of a participant, Part 4 and the LTCS Guidelines extend to an assessment of that option. 11B Payment not required in certain circumstances (1) The Authority is not required to make a payment in relation to the following— (a) any treatment, care, support or service provided to a participant in the Scheme on a gratuitous basis (that is, anything provided to a participant for which the participant has not paid and is not liable to pay), (b) any treatment, care, support or service that is required to be provided by an approved provider but is provided by a person who is not, at the time of the provision, an approved provider. (2) However, the Authority may elect to make a payment in relation to any treatment, care, support or service referred to in subsection (1) if the Authority is of the opinion that special circumstances exist that justify such payment. (3) The LTCS Guidelines may make provision for or with respect to determining whether special circumstances exist that justify payment in relation to any treatment, care, support or service referred to in subsection (1). (4) To avoid doubt, this section applies even if the treatment, care, support or services concerned are provided in connection with the provision of the assessed treatment and care needs of a participant in the Scheme. (5) This section has effect despite section 11A. 11C Approved providers (1) The following treatment, care, support or services (provided in connection with the provision of assessed treatment and care needs of a participant in the Scheme) are to be provided only by an approved provider of the treatment, care, support or service— (a) attendant care services, (b) any other treatment, care, support or services (other than the services of a medical practitioner) identified in the LTCS Guidelines as treatment, care, support or services that are to be provided by an approved provider. (2) An approved provider of a service is a person, or a person of a class, approved by the Authority (or by any other person specified in the LTCS Guidelines), in accordance with the LTCS Guidelines, to provide the treatment, care, support or service under the Scheme. (3) The LTCS Guidelines may also make provision for or with respect to the standards of competency of approved providers. Part 3 Dispute resolution Division 1 Disputes about eligibility 12 Definitions In this Division— Assessment Panel means a panel of assessors convened under this Division to determine a dispute under this Division. assessor means a person appointed under this Division as an assessor for the purposes of this Division. Review Panel means a panel of assessors convened under this Division to review a determination by an Assessment Panel. 13 Appointment of assessors The Authority is to appoint medical practitioners and other suitably qualified persons to be assessors for the purposes of this Division. 14 Referral of disputes to Assessment Panel (1) If there is a dispute as to whether a motor accident injury suffered by a person satisfies criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme, the dispute can be referred to an Assessment Panel for determination. (2) The dispute can be referred by the Authority or by notice to the Authority given by or on behalf of the injured person or by the insurer of the injured person's claim. (3) The Authority is to convene a panel of 3 assessors to constitute the Assessment Panel to determine a dispute referred under this section. (4) The Assessment Panel to which a dispute is referred for determination is to determine the dispute and is to give a certificate as to its determination setting out the reasons for its determination. 15 Review of Assessment Panel's determination (1) The determination of an Assessment Panel can be referred for review by a Review Panel, but only on one or more of the following grounds— (a) a change in the condition of the injured person, being a change that occurred or that first became apparent after the dispute was referred for determination by the Assessment Panel and that is capable of having a material effect on the determination, (b) the availability of additional relevant information about the injury, being information that was not available, or could not reasonably have been obtained, before the dispute was referred for determination by the Assessment Panel and that is capable of having a material effect on the determination, (c) the determination was not made in accordance with the LTCS Guidelines, (d) the determination is demonstrably incorrect in a material respect. (2) A determination can be referred for review— (a) by or on behalf of the injured person, or (b) by the insurer of the injured person's claim, or (c) by the Authority. (3) The Authority is to convene a panel of 3 assessors to constitute the Review Panel to review the determination of the Assessment Panel. (4) The Review Panel can confirm the determination of the Assessment Panel or it can revoke that determination, substituting its own determination and giving a certificate as to its determination. 16 Determinations to be binding The determination of an Assessment Panel (or of a Review Panel on the review of an Assessment Panel's determination) as to whether a motor accident injury satisfies criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme is final and binding for the purposes of this Act and any proceedings under this Act. 17 Costs of assessment (1) The costs of determinations and reviews of determinations under this Division are payable by the Authority. (2) The costs of determinations and reviews under this Division include the necessary costs and expenses of travel and accommodation incurred by the injured person, and by a parent or other carer of the injured person in order to accompany the injured person, in attending a panel for the purposes of the determination or review. 18 No legal costs payable by Authority (1) No legal costs are payable by the Authority for or in respect of legal services provided to an injured person or an insurer in connection with the referral of a matter for or the making of a determination or review of a determination under this Division. (2) In this section, legal services and legal costs have the same meanings as in the Legal Profession Uniform Law (NSW). 19 Authority monitoring and oversight (1) Determinations and reviews under this Division are subject to relevant provisions of the LTCS Guidelines relating to the procedures for the referral of disputes for determination or review of determinations and the procedure for determination. (2) The Authority may arrange for the provision of training and information to assessors to promote accurate and consistent determinations and reviews under this Division. Division 2 Disputes about motor accident injury 20 Determination of disputes (1) An interested person who disputes a decision of the Authority as to whether an injury is a motor accident injury may request the Authority to refer the dispute for determination under this section. (2) Each of the following is an interested person— (a) the person whose injury is the subject of the Authority's decision, (b) the insurer of a claim made by the injured person in respect of the injury, (c) the Nominal Defendant. (3) The Authority is to refer the dispute to the President for the determination of the Commission under Part 4.4 of the Motor Accidents Compensation Act 1999. Note— Part 4 of Schedule 4 to the Personal Injury Commission Act 2020 requires the Commission to be constituted by 3 general members of the Commission assigned to the Motor Accidents Division of the Commission. (4) The Commission is to determine the dispute and certify in writing as to its determination giving reasons for its determination. (5) The Commission's determination as to whether an injury is a motor accident injury is final and binding for the purposes of this Act and any proceedings under this Act. 21 Legal costs (1) The Commission determining a dispute under this Division is to include in its determination a determination of the amount of the reasonable legal costs payable by the injured person for or in respect of legal services provided to the person in connection with the referral for determination of and the determination of the dispute. (2) The Authority is to pay those reasonable legal costs of the injured person as assessed by the Commission. No other legal costs are payable by the Authority for or in respect of legal services provided to an interested person in connection with the referral for determination of and the determination of a dispute under this Division. (3) The regulations may make provision for or with respect to fixing maximum legal costs for legal services provided to a person in connection with the referral for determination of and the determination of a dispute under this Division. (4) A legal practitioner is not entitled to be paid or recover for a legal service an amount that exceeds any maximum legal costs fixed for the service by the regulations under this section. (5) This section does not entitle a legal practitioner to recover legal costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred. (6) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation. (7) In this section, legal services and legal costs have the same meanings as in the Legal Profession Uniform Law (NSW). Part 4 Treatment and care needs assessment 22 Definitions In this Part— assessor means a person appointed under this Part to make an assessment in relation to a disputed assessment under this Part. Review Panel means a panel of assessors convened under this Part to review an assessment under this Part. 23 Assessment of treatment and care needs of participants (1) The Authority is to make an assessment of the treatment and care needs of a participant in the Scheme. (2) The assessment is an assessment of the participant's treatment and care needs that are reasonable and necessary in the circumstances, and as relate to the motor accident injury in respect of which the person is a participant in the Scheme. (3) An assessment of treatment and care needs is to be made in accordance with the LTCS Guidelines. (4) The Authority is to certify in writing as to its assessment of the treatment and care needs of the participant including its reasons for any finding on which the assessment is based, and is to give a copy of the certificate to the participant. 24 Dispute about Authority's assessment—determination by assessor (1) If a participant in the Scheme disputes an assessment or any aspect of an assessment by the Authority of the treatment and care needs of the participant, the Authority must, at the request of the participant, refer the dispute to an assessor for determination. (2) A participant cannot make such a request more than 28 days after the Authority gives the participant a copy of the Authority's certificate of assessment of the treatment and care needs of the participant. (3) The Authority is to appoint health professionals and other suitably qualified persons to be assessors for the purposes of this Part. (4) The assessor who determines a dispute about the treatment and care needs of a participant is to give a certificate to the Authority and the participant certifying as to the assessor's determination and setting out the assessor's reasons for any finding on which the determination is based. 25 Review of assessor's determination (1) The Authority or a participant can refer an assessor's determination of a dispute about the treatment and care needs of the participant for review by a Review Panel, but only on one or more of the following grounds— (a) the availability of additional relevant information about the treatment and care needs of the participant, being information that was not available, or could not reasonably have been obtained, at the time of the assessor's determination and that is capable of having a material effect on the determination, (b) the assessor's determination was not made in accordance with the LTCS Guidelines, (c) the assessor's determination is demonstrably incorrect in a material respect. (2) An assessor's determination can be referred for review not later than 28 days after the assessor's certificate of determination is given to the Authority and the participant. (3) The Authority is to convene a panel of 3 assessors to constitute the Review Panel for the review of an assessor's determination. (4) On its review, the Review Panel can confirm the assessor's determination or can revoke the assessor's determination and substitute its own determination, giving the Authority and the participant a certificate of the determination and setting out the Review Panel's reasons for any finding on which its determination is based. (5) In conducting its review, a Review Panel must take into account any written submissions prepared by or on behalf of the participant that are submitted to the Panel. 26 Effect of assessment (1) The Authority's assessment of the treatment and care needs of a participant is final and binding for the purposes of this Act and any proceedings under this Act. (2) The Authority is to revise its assessment to make any changes that may be necessary to give effect to any determination by an assessor or Review Panel of a dispute about those treatment and care needs. (3) The Authority's assessment of the treatment and care needs of a participant supersedes any earlier assessment by the Authority of those needs. 27 Co-operation of participant A participant in the Scheme must comply with any reasonable request made by the Authority or an assessor in connection with an assessment of or dispute about the treatment and care needs of the participant, including a request to undergo a medical examination or other examination by a health professional. 28 LTCS Guidelines (1) The LTCS Guidelines may make provision for or with respect to the assessment of the treatment and care needs of a participant in the Scheme. (2) In particular, the LTCS Guidelines may make provision for or with respect to the following— (a) the procedures to be followed in connection with such an assessment, (b) the intervals at which such assessments are to be carried out, (c) the methods and criteria to be used to determine the treatment and care needs of participants, (d) the information to be provided by participants for the purposes of or in connection with assessments. (3) An assessment of the treatment and care needs of a participant in the Scheme is to be carried out in accordance with the LTCS Guidelines. 29 No legal costs payable for assessment or review (1) No legal costs are payable by the Authority for or in respect of legal services provided to a participant in the Scheme in connection with an assessment under this Part of the treatment and care needs of the participant or the determination or review of a determination under this Part of a dispute about such an assessment. (2) In this s