David Heilpern
This will be the year of the jab. And in from Byron Shire, that poses some interesting questions.
You only have to mention the word ‘Mullumbimby’ in passing and strangers will grab you by the arm and ask, ‘are you pro-vax or anti-vax?’
Such a divisive question, when the truth is that most of us are simply vax cautious – and why not? Even the most ardent advocates for vaccination are secretly, smugly, silently relieved that we have delayed our coronavirus jabs until after the great mass experiment on our guinea-pig cousins across the seas. Thank you, Donald and Boris.
Adverse reactions
I’m more concerned about the compensation scheme in Australia for adverse reactions to vaccinations.
There are 25 countries that have such schemes – mostly government funded with clawback from the pharmaceutical industry.
None are perfect, but the key feature is that they do not require an applicant to prove fault or negligence by the manufacturer or the medical system – they just need to show that it is ‘more likely than not’ that the injury or illness was caused by the vaccine.
Germany started its scheme in 1961, and now a variety of schemes exist including in the UK, New Zealand, United States, Canada, Europe and Japan. Even China, Russia, Nepal, Vietnam, and Thailand have joined the party.
The benefits of course are primarily for those who suffer an adverse reaction.
On a lazy Sunday, look up the United States Court of Special Claims, which makes for riveting reading as to the scope and reasoning of the judges. Interestingly, there are no judgments accepting the link between vaccination and autism.
Nevertheless, this court has dealt with more than 20,000 claims since inception in the 1980s and has ordered more than $3 billion in compensation.
In the USA, a vaccine is the presumed cause of an adverse medical condition if the timing and diagnosis matches up with pre-published criteria listed in medically and judicially determined tables.
So, if a person develops chronic arthritis between seven and 42 days of receiving a rubella vaccination, and they didn’t have it before, then the court moves directly to determining the size of the award.
Nothing ‘totally safe’
However, the benefit I’m most excited about seeps down into the public debate.
No longer is there this absurd ritualistic dance that starts with one side saying vaccines are safe and the other saying that vaccines are dangerous.
There is a societal recognition that there is no such thing as totally safe, and that a percentage of the vaccinated will suffer serious adverse reactions that can have life-long implications.
Not only that, but those who do suffer as a result will be looked after financially by the state so that, as the argument goes, overall benefits from herd immunity occur as a result of compliance.
To use a strained comparison, as a coroner I saw cases where people genuinely died as a result of wearing a seatbelt.
However, many more lives are no doubt saved by wearing a seatbelt. Hence the law reflects this with penalties for those who fail to comply.
And it is really interesting to see how the compensation countries are dealing with COVID-19 vaccines.
In the United Kingdom, the government has included all COVID-19 vaccines in their Vaccine Damages Payment Scheme.
For severe reactions causing disability, a payment of up to £120,000 is available. In the USA there are two schemes, and both have been amended to include coronavirus vaccinations.
Compensation scheme needed
Australia, on the other hand, has never had a vaccine compensation program despite calls from the medical profession. Instead, the government has just recently granted immunity from civil or criminal liability to COVID-19 vaccine companies and providers, and left those who may have adverse reactions with no compensation scheme other than individual and realistically inaccessible and inequitable access to the courts. And that leads to silly statements about the vaccines being ‘safe’ and using carrots and sticks to encourage compliance.
It cements the vax, anti-vax dichotomy.
It would appear that the powers that be have not entertained the suggestion that the introduction of such a sensible scheme might even build confidence in the vaccination program and increase compliance.
I have even drafted a speech for Scotty From Marketing – ‘My fellow Australians, we are proud to announce Australia’s first vaccine compensation program, introduced as part the anti-pandemic measures’.
‘My government accepts that there will be some rare and serious adverse impacts from a mass vaccination program. These vaccines are new and rushed, so of course there are risks. But we have made the calculation that the benefits outweigh the costs.
‘That has been the evidence so far from the United Kingdom and United States. However, if you do suffer illness or injury as a result of the vaccine, we will look after you.
‘You won’t have to prove negligence or fault, any legal costs will be covered, and you will not be out of pocket.
‘We want to ensure saturation vaccination levels, and we accept that herd immunity will have a cost for some unfortunate individuals.
‘This will be a team effort, and like all great endeavours – the starting point is looking after the inevitable casualties’.
So, next time someone asks if you are pro or anti-vax, tell them you are pro-vaccine compensation. Like the doctors.
Author
Retired magistrate David Heilpern is the author of several law-related books, journal articles, and reported judgments. He was the youngest magistrate in Australia, when appointed in 1998.
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