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Category: Accountability

20/08/2021

Submission to Statutory Review of Motor Accidents Act 2017

20 August 2021

This is a review of the 2017 Motor Accidents Act by Clayton Utz, lawyers, and Deloittes, accountants. It is under the umbrella of SIRA, but it is for the Minister for Customer Service, Victor Dominello as part of the review of the legislation.

The terms of reference are in the Discussion paper, which is the first reference at the end.

Summary of this Submission:

The key message of this submission is that the major problem of the CTP system is the insurers’ ability to refuse treatments, and SIRA’s unwillingness to force them to pay for reasonable treatments. What is happening is at the level of systematic corporate fraud.

The CTP system exists to pay for the treatment of people injured in Motor Vehicle Accidents, yet a concentration on premium levels and the financial aspects of the scheme has led to a neglect to examine the workings of what should be a medical system. If two parallel hospitals had grossly different medical results, medical administrators would be called in to examine what was wrong. Yet when the CTP system and Private health system get wildly differing results from similar populations of doctors and patients, lawyers and accountants are called in. Clearly medical expertise is needed and this needs to come to the actual processes that the insurers are using to pay or deny treatments. Tinkering with the wording of Acts, Regulations or Guidelines will make no difference if they remain poorly enforced.

SIRA needs to take a more active role in regulating the medical decisions of insurers. It should also refer to injured people as patients, not ‘customers’. The word ‘customer’ suggests that there is choice. There is not. The patients do not want to be customers at all, though they did buy a policy from someone (often a different insurer some years before).

CV of Dr Arthur Chesterfield-Evans

I am a currently practising GP with degrees in surgery and Applied Science in Occupational Health principally treating WC and CTP injuries.

I have worked in Occupational health for 40 years and was for 9 years an Australian Democrat MLC.

I have written submissions to the Hayne Royal Commission on Banking and Financial Services with regard to the NSW WC and CTP insurance schemes, the Dore and McDougall inquiries into WC, and can make these available. I include some appendices with information about insurer behaviour as appendices to this submission.

Perspective

I am writing a submission to this review from the position of a Nominated Treating Doctor (NTD), and as such see the scheme as it actually works in practice. I submitted to the Hayne Royal Commission into Financial Services, but that inquiry did not have time to look at State insurance schemes, (though they stated that they were within its terms of reference). It seems that the key problem is that the whole scheme and orientation and skills of those both creating the scheme and those conducting the inquiry have been in the area of accounting or law trying to supervise insurers.

I note in the Background introduction to your discussion paper that there was ‘extensive consultation and deliberation on the part of the NSW Government, SIRA, the insurance industry, the legal profession, road users and other stakeholders as the best way to reform the scheme[1]’. Presumably the patients for whom the scheme exists and the doctors who treat them are covered as ‘other stakeholders’, but the fact that they are last and not even specifically mentioned exemplifies the distorted priorities of the scheme. Hopefully it does not presage the same approach in this review, but I note that it is being done by lawyers and accountants, who will need to consult more widely if they are to get much insight into why the system is such an expensive failure.

My view as a Nominated Treating Doctor is that the key problem is that the whole scheme is viewed through a financial prism, with relatively unsupervised insurers gouging profits by refusing treatments to injured people. The amount of money gouged can be seen from the percentage of the money actually paid to treat as opposed to overheads and profits. The appalling medical results are a consequence of the treatments delayed and denied by insurers. The system will not be fixed until the issue of insurers interfering in treatments is addressed. This will involve a much tougher regulatory regime where insurers are made to pay for treatments. Currently there is no punishment or disincentive that discourages unreasonable treatment delays or denials. The simplest solution is to require insurers to pay the reasonable medical costs. Obviously there would also have to be some effort to contain unreasonable medical bills. Compulsion and Punishment are harsh words, and politically difficult, which is the reason that it is not spoken or much less done, in a political context where the wording of legislation appears to be dictated to ministers by the insurers.

The Key Issue

The key issue overlooked is that CTP is a medical insurance scheme, which primarily exists to pay for the treatment of people injured in motor vehicles. The standard of medical care should be that achieved by privately insured patients. If there were two hospitals with similar populations and staff competence but wildly varying outcomes, a medical administrator would be asked to look at the situation and would look at the medical results and ask doctors. Yet in the WC and CTP schemes for some reason they ask lawyers and accountants. Tinkering with the words in Acts, Regulations and Guidelines are of no use if they are not enforced.

The Economic Framework

To look at the broader economic framework, it might be noted that because the two World Wars were fought over access to markets, the conference at Bretton Woods in 1944[2] set up the world to be one market, with those who succeeded in selling their products advancing at the expense of those who did not. It has been reinforced by trade treaties that have prevented countries having protectionism and lessening trade barriers. It may have prevented wars. But it has allowed the rise of multinational companies, who cannot be controlled by any one government and can avoid taxes. Some of these companies have become more powerful than many governments and governments are increasingly unwilling to intervene in markets. Often they see themselves as pleading for capital investment in their jurisdiction, so their key objective is to lower costs for business.

In terms of the cost of products, in this case insurance, a market system will only reduce prices when there is real competition, and this requires transparency. If there is an imperfect market, it needs to be regulated. The NSW CTP scheme is like this. It is a cartel that is poorly regulated. Added to this there has been a rise in the corporate ethos that the sacred duty of a manager is to make a profit. This was most famously espoused by Milton Friedman in 1970 who said, ‘The only social responsibility of business is to use its resources and engage in activities designed to increase its profits…so long as it stays within the rules of the game, which is to say engages in open and free competition without deception of fraud’. The first part of this quote has set a new norm, and sadly the government no longer fills the second half of the quote; the role of setting boundaries in terms of insurer behaviour.

Corporate Responsibility

The lack of any sense of social responsibility was well illustrated in the testimony of John Nagle at the Parliamentary Inquiry into iCare where he was trying re-define the end point of treatment and payment by iCare to be when people were declared fit for partial work, rather than when they actually returned to work[3]. This would have saved iCare a lot of money by pushing people off workers compensation to a much lower level of Centrelink NewStart benefit. In other words, he displayed no concern for the social consequences of his actions, he was merely concerned with the financial result for iCare. His personal sense of entitlement[4] to benefits and nepotism are another issue, again as a result of the emergence of a new class of managers who have little understanding of or care for those who are affected by their decisions. The situation in the CTP system is analogous to the WC system.

Government Oversight

In terms of the government’s oversight or regulation of the CTP insurers, it is illustrative to look at the dismal history of government regulation in Australia. Governments never ‘regulate’ powerful interests effectively. Banks, casinos, insurers, nursing homes, mental health systems, media, miners, builders have all had recent scandals. They all in theory have had regulatory bodies but any change comes from whistle-blowers, never regulators. Even after the scandals the inquiry reports make little difference. NSW insurers have had the Dore report, the McDougall Report and a Parliamentary committee, but insurers continue to dud patients, and SIRA still does not discipline them, support NTDs, collect relevant statistics or even look at relevant areas when complaints are made.

I note from the SIRA website that there have been 40,879 claims. Of these 16,315 (40%) requested internal insurer reviews, and there are 7,169 (18%) disputes[5]. The Dispute Resolution Service (DRS) had 77% Medical disputes, which are basically insurers refusing to pay for treatments, but only 40% of these had been resolved with another 11% withdrawn. We might ask wonder what the average delay was, and note that people sit in pain for months waiting for these disputes to be resolved. We might also ask why so many were withdrawn- perhaps they got treatment elsewhere. The DRS also only upheld the complaint in 422/742 (56%) of cases[6]. SIRA did not give figures for the percentage of Internal Reviews that upheld the original insurer decision, but my experience is that it is high, perhaps 80%. It is hard to believe that these internal reviews are other than a time-wasting fob-off measure so that the patient will go elsewhere for treatment.

The government has been keen to keep insurance premiums low and seems willing to let insurers compete to do this with minimal supervision of their activities. The NSW government has a vested interest in trying to shift the CTP costs to the other health funding bodies, the Federal government (Medicare), Private Health Insurers and patients. Naturally this is unstated.

Consumers’ Lack of Power

Since the consumers do not know which company delivers the best deal, the market is no discipline at all. SIRA was set up by insurance interests as if to regulate insurers and make sure that they were very diligent in not paying too much. SIRA do not have a corresponding diligence in making sure that insurers give a fair deal to patients. It is hard to escape the conclusion that if SIRA were to have the temerity to challenge insurers seriously it would have adverse effects on the careers of those within SIRA. The only way that the situation will be improved is if SIRA’s role is changed to that of an auditor and policeman. Currently the incentives are all for treatment denials as the insurers are in a perpetual conflict of interest situation. Any moneys that they avoid paying to patients, they keep as profits, so if no one stops their treatment denials, that is what they will do.

Health Insurance Efficiency

A comparison of health insurance systems is illustrative. Medicare’s overheads are about 4.5%. Private health insurers, who compete but are obliged to pay at least a proportion of doctors’ fees, have overheads of about 12.5%, whereas CTP insurers only pay out about 50% or less. The US Health System is widely regarded as the worst in the developed world at delivering equitable health care, and US key health indices, infant mortality and life expectancy are very poor as a result. The US health care system is however, the best in the world at doing what it was arguably set up to do, to turn injury and illness into profit. Comparing US health funds, their overheads vary from about 12.5% to over 35%, and it might be noted that they control which doctors patients may go to, and what those doctors may do. They have high costs in terms of patient churn, and the need to account for every tiny procedure and to run a parallel record system. Because of the complexity of the systems, it is difficult for the patients to make real comparisons of the service that they may or may not be getting. So the insurers wishing to increase their profit tend to increase supervision and restriction of doctors to keep the costs down, rather than improve services so that they can claim to offer a better product. The Australian CTP insurers are following this model.

Lack of Power of Nominated Treating Doctors (NTDs)

From the point of view of the Nominated Treating Doctors (NTD) it would seem that the insurers’ aim is to replace the role of the NTD by their algorithms or flow charts and control the treatment. (iCare spent a lot of money on computer software to this end). Cost control is often achieved by refusing investigations, referrals to specialists, or treatments and also by encouraging premature return to work (RTW). To achieve this last they send their representative, a Rehabilitation Coordinator, to be a presence at a significant number of doctor consultations both to report back to the insurer and often to pressure the Nominated Treating Doctor to follow whatever path that the insurer thinks will minimise their costs. The Rehabilitation Coordinator is in theory chosen by the patient, but in practice the patient has never heard of such a person and if they are given a choice by the insurer, the choice is from a list that the insurer has compiled. Again in theory the Rehabilitation Coordinator is a professional who acts in the interest of the patient. But the individual Rehabilitation Coordinator gets their work from an agency that is chosen by the insurer, so that professional has to please the agency that has to please the insurer. Most rehabilitation coordinators see the insurer as the client, rather than the patient, which is hugely undermining of their professional role. Many Rehab agencies simply advertise to insurers or employers. The words ‘patient’ or ‘doctor’ are not even on their websites. The Rehab coordinators should be chosen by the patients in consultation with their doctors. If this happened the Rehab coordinators would market to doctors and owe their loyalty to patients as they should.

The position of the NTD is also undermined by the insurer using Independent Medical Examiners (IMEs) to give opinions on the treatments. NTDs generally do not even get the courtesy of a copy of these opinions which are often used to deny either liability for the pathology or treatments for it. SIRA has declined to insist that the doctor gets a copy of the report, which may be denying his/her patient’s treatment.

Independent Medical Examiners (IMEs)

The role of IMEs needs to have close attention. Insurers seem much enamoured of doctors who will write reports that shift the liability elsewhere, deny that the pathology is serious, deny that the treatment is necessary, or conclude that the patient is ‘faking or exaggerating’. The doctors are often hired through agencies that take a commission and agencies presumably also will not engage doctors who do not please the insurers with their reports. I have observed that some of these doctors are flown in from Canberra, Brisbane, Melbourne or Lismore, so clearly the work is very lucrative. One might ask why there are not enough doctors in Sydney capable of doing such work?

I have also looked at websites like www.ratemds.com which give patient feedback on the doctors who examine them. Some doctors who do IMEs have glowing reports about the kindness and competence from the patients that they treat, but terrible reports from the patients having IMEs. One might term this the Dr Jekyll and Dr Hyde syndrome which seems to be that their judgement and manner changes in different situations, perhaps because they have a predetermined view of patients coming to them with a controversy over their legitimacy, or perhaps the fee structure influences them.

Quantifying Insurer Treatment Denials

I kept statistics of insurer denials of requests for MRIs or specialist referrals, and sent these to the Hayne Royal Commission. I have included this as Appendices 3 and 4. There were considerable differences between insurers which, if made public, would have had a huge effect on the sales of CTP insurers. I also asked SIRA on a number of occasions to supervise insurers more closely and compile these type of figures, but they have declined to do so. It might be noted that insurers suffer no sanction if they refuse treatments. You might note that I successfully introduced amendments to the Workers Compensation Amendment Bill in 2000 to penalise insurers who defrauded patients[7], but these provisions are at the discretion of SIRA and have never been used. They do not even exist in the CTP legislation. Making these insurer treatment denial figures public would be a sanction that would change insurer behaviour, but it seems that the rhetoric of ‘transparency’ is only rhetoric.

It must be understood that when insurers refuse treatments, the NTDs are under pressure from the patients to find alternatives. They therefore use their private health insurance, Medicare, or their own resources to get this treatment. If they succeed in this the CTP insurers have saved money, and so are rewarded for their refusal. If the case is contested, which is rare if the patient gets treated and recovers, the worst that the insurer suffers is that they have to pay for the treatment, which was usually cheaper than if it had been done at CTP rates. Rewarded again for refusal! The money is also taken out of the patient’s legal settlement. It might be noted also that the AMA Guides to the Evaluation of Permanent Impairment also rate people who have had back operations as more impaired, so the insurer benefits from the patient not having had surgery, so tries to delay and hinder the surgery.

All these activities that are aimed at profit maximisation but delay treatments and worsen outcomes. The CTP system is a great cash cow, but does not achieve its principal purpose, which is to treat injury. Like the US system it increasingly emulates, it just makes money for the insurers while the government is loath to rein it in.

It must be conceded that there are examples of doctors overcharging. Some of this is the premium because of the extra paperwork generated by insurers demanding justification for everything. There is also a risk that the doctor will be in an adversarial situation or be called to court, though this is now less frequent. But some fee disparities are huge. With come negotiation it is possible for an NTD to get an MRI for a patient for close to the Medicare price of about $250, but the CTP fee is $1750 and a radiology practice, Alfred Radiology was reputed to have changed hands recently for $100 million. This is not in the interests of patients, as the insurers’ response is simply to refuse investigations. As an NTD, we have no information except via the patients as to what the specialists charge, so NTDs cannot influence this. I have had a letter from an insurer who demanded that I choose a different specialist as he was too expensive, but there is no data on specialists’ charges or success rates and the insurer merely assumed that I would find a cheaper one in response to their demand.

Control of the process needs to be given to the treating doctors. The NTDs are almost all GPs, and so have very modest fees relative to the specialists, rehab coordinators, exercise physiologists, physiotherapists, psychologists and presumably private detectives who are quietly and silently used. The role of private detectives is not usually seen by NTDs either, but what happens in practice is that the patient has their liability denied or treatment refused. When they then try to work, often against medical advice, they are photographed and this is assumed to prove that they are fit to work but faking illness and their treatment is even more unequivocally denied. Usually they only tried to work despite their pain because they had absolutely no money. The myth that CTP is a non-adversarial system is a nonsense, and it seems that only SIRA tries to believe it to justify their highly passive role. I have spent 35 years in the workers compensation area. I started believing that I had to use my medical expertise to diagnose patient fraud. I have concluded that very few patients feign injury, of the order of 2% at most, but insurers’ mighty efforts not to pay results in their perpetuating the myth that either there are a lot of people faking, or they have to be very vigilant less anyone be faking. The cost of all this checking costs far more than the treatments would cost, but it seems that insurers would prefer to spend money on anything but treating people. I have an example of genuinely injured people who have 4 specialist reports and a security report all trying to deny liability for treatments that were obviously necessary. 3 years after his injury, the man is still substantially untreated.

If an injured person exaggerates their symptoms, IMEs will all write reports and private investigators will film them. They will be denied and vilified. Yet insurers systematically set up overlong protocols so that there are inherent delays and denials that inconvenience every case, create suspicion, an adversarial system, financial hardship and depression and then frequently deny treatment that is entirely justified, but they are never called out. It is my opinion that over 95% of the fraud in the CTP system is perpetrated by the insurers and less than 5% by patients. The cost of all this checking, which is far more than the fraud that it supposedly prevents is another reason why the system is a failure. The Banks were criticised by Hayne for their systematic deceptive conduct. Insurers are considerably worse, as they are able either to allege widespread fraud or to claim that they are preventing it. Frankly this is nonsense. Very few people pretend to be injured and almost no one ever volunteers for surgery that they do not need.

It might be noted that while medical records can be subpoenaed with absolutely no privacy for the patients, insurer records of denials are in no way available for scrutiny, because while the medical system is supposedly non-adversarial, the legal system is and its privacy is regarded as far more important. If the insurer records are merely keeping track of the patients history and we are in a non-adversarial system, let them justify the ‘medical decisions’ that they make as doctors have to justify theirs. I will not hold my breath. My view is that insurers make their decisions for cost and legal reasons which would often not stand any reasonable medical scrutiny from someone who actually knew the patient.

It might also be noted that insurers have recently been pushing for treatments to be assessed by their ‘cost-effectiveness’. This might sound fine but if we consider an experiment where two groups of patients with back pain were treated with one group having a GP who regularly prescribed pain killers, and the others had no treatment, arguably at the end of the year the backs of the two groups would be the same, so a year’s pain relief would not be ‘cost-effective’. Insurers should pay for standard treatments and negotiate with medical colleges if guidelines are needed to define these. If they wish to pay for research on the success rates of various regimes, let them liaise with SIRA and the doctors and set up protocols to do this. The NTDs would probably be willing to assess the end points. Insurers should not merely be able to refuse treatment venally or at whim, which from an NTD perspective appears to be the current situation.

Insurers Influencing Treatment Guidelines

The creation of treatment guidelines also need to be mentioned. There are guidelines for the treatment of Whiplash injuries. The combination of whiplash injuries with low back pain is probably the commonest GP presentation of motor vehicle accidents. Patients are rear-ended and get whiplash and low back pain. Medical guidelines were produced on the treatment of whiplash which suggested that no scans were needed unless certain ‘red flag’ conditions were met. The groups who are most responsible for treating whiplash would be emergency doctors and neurosurgeons. Neither of these had a representative on the committee that created the guidelines which had insurer representatives and doctors who all took a very long-term view of the situation. Whiplash however is an acute condition, and an early diagnosis can save months of time for the cost of a simple MRI (or even a CT, though these have dangerous levels of radiation if done as a routine in a population). Yet these Whiplash guidelines have been widely used by insurers to deny scans on MVA patients. The lesson is that SIRA should not have any insurer representatives either in the creation of guidelines or in the selection of doctors who are to adjudicate the disputes that the insurers create.

Objectives of the Act

The key elements of this submission relate to Objective (a) to encourage early and appropriate care. As is stated[8] the key to this is post-accident recovery, not monetary compensation. This means optimum treatment as soon as possible.

The insurers have a lot of time to make their liability decisions and can even ask for more time to do exhaustive investigations and demand past medical records, and deny liability or treatment until these are obtained. Doctors regard this as tiresome, as the records may be old, the patient may no longer be with them. Overseas students of visa holders may not have records available, and often see doctors at random as they have no Medicare. Insurers boast (e.g Allianz) that they have a flexible workforce with part-time workers which is good for women. This is fine, but the injured people have to wait until the claims manager is back and the decision is delayed. The delays and denials have immense effects on the mental health of injured people and the insurers then sometimes endeavour to prove that they had previous psychological problems. The fact that they are injured, in pain, cannot work, and have their personal and family relationships undermined, have a loss of income and have had their treatment refused is presumed to be not relevant. I attach a list of 83 examples of insurer misdeeds that I sent to the Hayne Royal Commission as Appendix 1. This list is somewhat dated now, but new examples continually recur at much the same rate.

The key point is that the insurers are the chief cause of the failure to deliver timely and appropriate care, and are the reason why the treatment and results are inferior to normal private patients, or even Medicare ones (when the Medicare delays are ignored. The Medicare waiting time for non-urgent operations is often over a year). No progress will be made in fixing the health aspects of the CTP system until the insurers are made to pay for the treatments that the NTDs try to initiate. The insurers try to undermine and supplant the roles of the NTDs, but have neither the expertise nor the patient contact and knowledge to make this a viable proposition. The insurers manage the claims to minimise their costs and do not acknowledge that letting the doctors get on with the cases would be the best way to optimise outcomes.

The question for this inquiry should be, ‘How do we make insurers actually meet their obligations under the Act when every dollar they save by not treating patients goes to their bottom line?’ It is understood that insurance staff, who are somewhat pretentiously called ‘Case Managers’ which assumes either that they have supplanted the doctors’ role or that the money is more important than the medicine. They are paid bonuses to get the cost of claims below certain targets. This results in the Claims clerks managing the money, rather than the patient’s interest. One might ask how they can be expected to manage in the interest of the patient, when their own interest is to minimise the cost of the treatment? The problems in the insurance schemes are the incentives and protocols from top management, yet the Claims clerks are the ones abused for refusing treatments, and in most cases will not give their surnames, calling themselves Alison S. or similar. For people whose job is to give out money to help people this alone is a good indication that they are not working as the legislation intended. Claims clerks should be referred to as claims clerks, not case managers, by SIRA. Insurers should be prohibited from providing incentives for these clerks not to treat people. SIRA should audit insurer records systematically and random checks should be carried out by dedicated medical teams to see that insurer protocols are reasonable. Currently insurers routinely demand complete medical records of patients, but there is no transparent process that looks at their records. SIRA, even when acting on complaints merely asks the insurers for explanations and in the writer’s experience accepts them. They do not even look at the records of cases against which complaints are made. Insurers have far too much power against patients and doctors.

Objective (b) to provide financial support for persons injured is very important and was a major improvement in the 1999 legislation. Many people live from payday to payday and are unable to buy food or pay the rent if there are interruptions to their incomes. This is particularly the case in students on visas or people on work visas, who it must be noted have no Medicare so are completely at the mercy of CTP insurers when they are unable to work. It is my view that there should be significant penalties for insurers who unreasonably deny liability or treatment as currently there is no sanction for this. As a minimum the rates of denials and delays by insurers should be collected by SIRA and published to have some consumer pressure to discourage unreasonable and venal insurer behaviour.

Objective (e) is not being met because consumers have no data on which to base their purchase decisions. Competition only works if consumers have data on which to base purchase decisions and it behoves the regulator to set up a framework for competition. Simply setting up an opaque oligopoly market will not deliver any benefits for consumers, as this system amply demonstrates. SIRA must get data on the rate of refusals of treatment requests by different insurers and publish them. Currently the only data consumers have is price or ads on TV.

Objective 9(f) to discourage fraud in connection with third party insurance is a worthy objective, but it must be recognised that the main fraudulent behaviour is by the insurers setting protocols that systematically delay or deprive patients of benefits that they are reasonably entitled to. Any effort to control the alleged fraud by patients should not take more resources than the fraud is likely to cost. It seems that the allegations of patient fraud are grossly exaggerated, and the process of excluding it a huge and unjustified overhead of the system as a whole. Currently it is a make-work scheme for insurers, investigators, IMEs and lawyers.

Objective (h) is being met very poorly. There is no comparison of insurer behaviour and no research into successful treatment in areas such as back surgery where the systematic collection of data could yield real benefits. NTDs would benefit from knowing which surgeons did certain procedures, what they charged and what their results were. The NTDs could also have input into an assessment of the pre- and post-treatment condition of the patient.

I note that you are in the First Stage of the Review and that you are considering whether it is necessary or appropriate to engage ‘directly with stakeholders’. I can assure you that it is. The remarkable feature of the SIRA Surveys of WC and CTP surveys is that they seem to be couched in the most euphemistic terms imaginable. There were 893 CTP patients surveyed and 885 WC patients[9]. The result of this is frankly shocking, but SIRA seems extremely sanguine in their report. 25% of CTP patients have a mental illness, 22% have moderate of extreme pain and those who have such pain, 40% have had a poor experience of their CTP insurer. Only 56% of patients felt that the insurer was efficient in their dealings with them, i/e 46% did not. Only 51% said that they resolved concerns quickly, 49% did not, and only 54% felt that they acted with empathy, 46% did not.

There is no way that anything like 25% of people have a mental illness before their car accidents, so as any working doctor is likely to tell you, the mental problems are caused by the accident, and mostly by the poor way they are treated by the insurer, who, if it gets serious enough sends an IME to probe their private life and find another reason for their distress. Only just over half those surveyed are happy with the insurers at all. Yet SIRA seems totally unfazed by this very unsatisfactory picture. It is reported almost without comment except that the information might help insurers.

Minor Injuries

Some definitions need to be addressed also. ‘Minor injuries’ have been greatly used by insurers to lessen their liability. While the discussion paper claims (page 9) that ‘minor injury’ is a technical term’ in the Act, in practice it is equated with triviality and used to deny payments. Whether it is merely a term of denial or whether it is term of denial because the injury is considered insignificant by the insurer is surely lost in practice. It seems that insurers take the wording of diagnoses from the first certificate and on the basis of that determine that it is a minor injury and are very reluctant to change that classification as further facts come to light, or if the patient does not recover as they would like. Emergency Departments try to limit their work to looking after emergencies, so tend to note diagnoses that are likely to be fatal, and discharge patients with significant pathologies such as back or neck injuries that are not immediately life-threatening. I have had three patients discharged by EDs with significant spinal injuries requiring surgery and one requiring neck surgery. None of the three back surgery patients (from 3 different hospitals) had that diagnosis mentioned in their hospital discharge summaries.

The diagnosis ‘soft tissue injury’ is basically a meaningless nonsense. Apart from bones, all tissues are ‘soft’. The exclusion of nerves, tendons, ligaments, menisci or cartilage means that most orthopaedic injuries are not soft tissue, yet whiplash and back pain are routinely dismissed as ‘soft tissue’. It has merely become a convenient term to dismiss inconvenient persistent pain.

Minor psychological and psychiatric injury that is ‘not a recognised psychiatric diagnosis’ has resulted in a lot of semantics, as psychological definitions are not as precise as one might like. People are often very stressed after accidents, and this is very often compounded by long delays and callous behaviour by insurers, who take no responsibility for this, and often use Psychiatrist and Psychologist IMEs to deny it, prying into their personal lives.

In Regulation 4, an injury to a spinal nerve that results in neurological signs is significant, and should not be a minor injury. I recognise that cavilling over medical definitions may beyond the scope of this inquiry, but this is part of the framework that allows insurers to deny claims and hinder treatment, which is why the current CTP scheme is so unsuccessful compared to the results achieved by normal private medicine where the doctors are able to get on with their work without venal interference.

The CTP scheme needs to cover ‘at-fault’ and ‘not at fault’ drivers equally. (Section 3.11)

The purpose of the scheme is to cover the cost of motor vehicle accidents. If a person has an accident and are at fault, they should be punished according to the Highway Code. The penalty should not be that they cannot get treatment for a condition that might be life changing. Even an episode of gross negligence does not justify a lifetime of suffering or the withholding of treatment. It merely seems petty vengeance or venality at a legislative level.

Entitlement to Benefits and treatment overseas

It is interesting that treatment benefits are not available outside Australia. I have quite a number of Korean patients on student or work visas who were injured in MVAs here. Often these were denied reasonable treatment and it was hard to avoid the conclusion that insurers simply wanted them to go home so that they could avoid paying for necessary surgery. A least 2 of them went home and had successful surgery in South Korea and commented that the surgery was better than in Australia and about a third the price. If refusal of overseas surgery is to continue the price and availability of surgery here needs to be improved.

Restricted Duties Support

While in theory patients can have support during recovery by having some degree of wage subsidy, there has been quite a lot of abuse of this provision. Some insurers have been keen that patients do any ‘make work’ task that allows them to classified as ‘fit for restricted duties’ and thus entitled to less damages. Some employers have been happy to take such workers while their wages were subsidised, with no intention of employing them beyond the subsidised period. Insurers have also been generally unkeen to pay for vocational training with the same amount of money as there was not a certain job at the end of the training. Often the patient’s best interest was not much a consideration in this reckoning. There is an absence of ‘good faith’. I note that ‘insurers…must manage claims consistently with the principle of proactively supporting claimants to optimise their recovery and return to work activities,‘ and that ‘Compliance with this obligation is, as with all requirements of the Guidelines, a condition of each insurer’s licence to issue third-party policies’.

These type of heavy sanctions are very unlikely ever to be applied and tend to be imply an all-or-nothing sanction regime, while there is minimal oversight from SIRA for the day to day monitoring of individual claims management. Obviously SIRA cannot oversee every decision on every claim, but if it were to investigate thoroughly a significant number of complaints and impose graded sanctions on insurers who had been unreasonable or unfair, it might make some difference to insurers’ currently unsatisfactory behaviour.

The General Questions in the Discussion Paper:

The objectives of the Act are acceptable, though in practice the preoccupation with saving money in claims and premiums has allowed a lax regulatory regime to be set up by insurance interests in SIRA and a distortion of their priorities to optimising insurers’ already enthusiastic cost control. This has allowed insurers to get away with unreasonable costs in investigating claims and denial of treatments, which has meant that the medicine actually delivered is of far poorer quality than the private medicine equivalent that it is supposedly funding.
A detailed analysis of the faults of the Acts, Regulations and Guidelines are somewhat beyond me at this time, but the lack of supervision and sanctions on insurers make lofty words and intentions often more noted in the breach than the observance. The lack of detailed knowledge of the Act, Regulations and Guidelines by both patients and doctors has made this easy for insurers. SIRA has not stepped up to ensure reasonable insurer behaviour. Tinkering with wordings of the Act, Regulations or Guidelines is unlikely to be helpful without far better enforcement.
The evidence for the failings of the CTP system are in this submission and in my submission to the Hayne Royal Commission. (I attach my statistics on insurer denials from my submission to this inquiry and my list of patients who were subject to unreasonable insurer decisions as Appendices 3 and 4. Some of these decisions were WC and some CTP.) Further evidence of insurer misdeeds are in my submissions to the Dore Inquiry and the McDougall inquiry, while those submissions were directed to the WC system have great parallels in the CTP system. The government has tried to make the two systems behave similarly, and to a large extent they have succeeded in practice, with iCare behaving as a private insurer and denying treatment in a similar way, though not quite as badly as in CTP, as the legislation supports the patients better, and the influence of Unions as advocates may contribute positively towards patient welfare.
In general terms policing the existing laws offers more hope than minor tinkering with them, At fault drivers should have the same benefits as not at fault drivers, Section 3.11. The Whiplash guidelines need to be re-written with significant input from emergency doctors and neurosurgeons and no input from insurers. Similarly insurers should have no input to SIRA medical appointments or future guidelines. The insurers’ role is to pay for treatments, not to determine what they are, and this needs to be made clear in the acts, regulations and guidelines and policed by SIRA.
As stated above, the care delivered by the CTP system is grossly inferior and far more expensive than comparable privately insurer health cover, when they should be similar. This is really a matter requiring investigation by a competent medical administrator, who has unfettered access to insurers’ files and can analyse the reason for their adverse decisions. The inherent delays in approving obvious treatments should be removed and probably the best way to do this would be to have the medical colleges define reasonable treatment pathways for common conditions and have NTDs able to do these without waiting for insurer approval. An alternative would be to have doctors able to treat the patients as they saw fit, limited by costs per procedure with medical panels looking at any over-servicing or overcharging and counselling the doctors. This might allow some initial problems, but in the longer term would sort out acceptable norms and lower the current unacceptable waiting times and treatment denials.
This writer is of the opinion that delay in payment to victims is unacceptably long, but is unsure of what is the reason for this.
The lack of payment for attendant care services considerably worsens the situation for injured patient where the partner has to give up time to look after them. Partners are unable to do their own paid work or have their study disrupted by looking after patients and insurers are often reluctant to give them home care for significant hours or for significant periods of time. ADL (Activities of Daily Living) assessments should be done by an assessor not chosen by the insurer and the carers given reasonable help and this should not be prohibited by Section 3.25, which should be repealed.
As above. Section 3.25 does limit achievement of the objectives of the Act.
The term ‘Minor injury’ is an artificial construct which merely reflects a finite period after which the insurers wish to have the right to cease payments without having to argue over every case. Most patients discontinue treatment when it becomes unnecessary, and the arbitrary selection of 6 months is merely for insurers’ convenience. The term could not be defined because it was not in any way a medical term. It should not exist as a medical entity. If insurers choose to review claims at a particularly point of time they may do so, but their bullying of doctors and use of Rehab coordinators to do this should have some sanction.
The definition of ‘minor’ does align with a lack of perceived seriousness of an injury. Naturally this does make it likely that it will resolve in a shorter period of time. But if it does not do so the patient should still be entitled to be treated. The idea that treatment should be ceased because the patient has ‘stopped improving’ also needs to be challenged. Insurers often want to close claims which are stable but have serious ongoing pain, such as knee, neck or back injuries, which often require ongoing pain relief or later surgery. The early definition of ‘minor injury’ has caused a lot of angst and dispute, and should be disallowed.
Statutory benefits for at fault and not at fault persons should be the same. The treatment or non-treatment of motor vehicle accidents should not be a mechanism for punishment of driving misdemeanours. It is also very poor policy to have a CTP scheme yet leave a segment of the population without medical treatment.
As above
As above
From the point of view of the injured at fault drivers it would be a great improvement. It would not affect not at fault drivers who would get the same service that they get now. It would presumably raise premiums as some people would have increased coverage. It would lessen the strain on other parts of the health system that presumably pick up the tab for the treatment of the at fault drivers. It is extraordinary that these questions are even being asked!

Statutory benefits in the form of weekly payments equivalent to weekly wages are a major benefit of the 2017 scheme. It might be noted that many people live from week to week. It would behove SIRA to survey and be aware what percentage of the recipients are in this situation and in which demographics and to concentrate their efforts on giving these people a better deal. Changes in the IR laws have meant a casualisation of the workforce with less job security, the use of job agencies which have the discretion to reduce shifts at whim without actually sacking anyone. There has been increased use of sub-award wages and cash payments, particularly in overseas students or working visa holders. Often these people are unable to prove their income and efforts need to be made to ascertain or verify their pre-injury incomes so that they can get paid fairly, as most people do not have a significant surplus in their incomes and a major medium-term income downgrade often spells extreme financial stress and mental depression. SIRA should develop protocols to assess this income and have an appeal mechanism. Sometimes bank statements are evidence, but this does not always seem to be accepted. It is also important that these benefits are paid promptly. SIRA should keep records of when injured people supply their income details and the delays they experience. If this were monitored, it is likely that insurer performance would improve. The cessation of payment should be when they are recovered from their injury, not at an arbitrary 6 months. The fact that 24% of people with ‘minor injuries’ have not returned to work at 6 months is further evidence that the injury was not minor. Obviously if they were not working at the time of the injury, they will not be getting these payment in any case.

The various categories of time for cessation of benefits seem to exist so that the costs of the treatment of MVAs can be passed from the State CTP scheme to other elements of the health system in Australia, i.e Private Health Insurance funds, Medicare or the patient themselves. In general, if someone is injured in a motor vehicle the motor vehicle scheme should cover their loss of income and treatment, and the premiums of road users should cover this.

I note the list of obligations that the injured persons have to the insurers (page 14). These are usually trumpeted as part of the case management plans which come from insurers. Conspicuously missing from these plans is the insurers’ obligation to pay for reasonable treatment in a reasonable time frame. The obligations of both parties should be set by SIRA, who should provide the templates for these insurer statements. At present they are like the bank sending notice of variation of interest rates; non-negotiable. They simply define what the insurers want, and serve to set a norm in the insurers’ interest, often requiring a signature of assent at the bottom. Both the patient and the doctor have to sign to get paid.

Damages seem to vary very widely depending on the competence of the patient’s solicitors. Some solicitors seem to go for high-turnover cases with low settlement values. This needs to be examined systematically. Some of my patients with ongoing serious problems have been settled for derisory amounts, which they are not supposed to disclose. The non-disclosure clause seems very much in the insurer’s interest.

Finally I would be very interested to know what steps you are taking to ensure input from both treating doctors and specialists and from patients to your inquiry. These last are the people for whom the scheme exists, yet it seems that their voice is the least heard. The inquiry was not well publicised to doctors, let alone to patients. Patients also have a poor understanding of the law and regulations, so are less likely to come forward. It might be noted in terms of motoring organisations, NRMA used to have the slogan ‘On the Motorists’ Side’ but since their listing as IAG are now the insurer who on my figures and backed up by a more numerous sample deny more treatments than any other insurer. They cannot be considered to speak for motorists’ interests in this situation.

Assessment of Permanent Impairment

In terms of real improvement of the CTP legislation, there needs to be a better way of assessing permanent impairment. The AMA Guidelines for the Assessment of Permanent Impairment are in the legislation but are a nonsense that delivers very unfair outcomes. The Guidelines are used because the legal process priced itself out of such assessments- more money was spend arguing about the money than there was there to give the patient, so this unfair AMA system was introduced. It now has two lots of vested interest supporting it; the insurers who do not have to pay much, and the doctors who do the lucrative medicals. The problem is that the AMA Guidelines make no distinction between an impairment and a disability. If one has poor vision, that is an impairment. If glasses correct this, there may be minimal disability. Injuries that prevent people doing physical work cause a much greater disability to people who are manual workers than to those who are clerical. But the key problem with these guidelines is that they do not consider pain because it cannot be measured and they try only to use things that can be measured quantitatively. Back pain is the commonest cause of disabling disability, and a painful back may have a similar range of movement to a non-painful one, so that patients may be rated with minimal impairment by the tables, but be hugely disabled and unable to work at all. I suggested an alternative scheme as an amendment to the Workers Compensation Amendment Bill No 2 2001, but this has not been examined further[10]. It involved an expert panel of three comprised of an appropriate medical specialist, a rehabilitation person who looked at what the patient could actually do, and a third member who looked at the labour market and what a person could reasonably be paid, to compare with their previous situation. The amendments were not supported as there had been insufficient discussion of the concept, which remains the case.

Summary

Appendix 1: 83 cases of Insurer Misdeeds as given to the Hayne Royal Commission

This is 2 files, a datafile list of the cases and an explanation of them

Appendix 2: As given to the Hayne Royal Commission, a 2 week sample of my patients, illustrating how many of them had a problem with insurers refusing some standard treatments. It was 76% overall, with the rate varying between insurers

Appendix 4: Insurer Radiology Treatment Denials as given to the Hayne Royal Commission

This has two sample populations, my own practice and a larger survey, which was seeking services from insurers. I do not want to give the source of the second survey, but there is a discussion of the similarity of the results.

[1] Statutory Review of the Motor Accident Injuries Act 2017 Discussion Paper 5 July 2021 p3.

[2] https://en.wikipedia.org/wiki/Bretton_Woods_Conference

[3] parliament.nsw.gov.au/lcdocs/transcripts/2380/Transcript%20-%203%20August%202020%20-%20%20CORRECTED.pdf pp 57-63, 85-88

[4] https://www.parliament.nsw.gov.au/lcdocs/transcripts/2380/Transcript%20-%203%20August%202020%20-%20%20CORRECTED.pdf p57-63, 79-82

[5] www.sira.nsw.gov.au/CTP-open-data accessed 14/8/21

[6] www.sira.nsw.gov.au/CTP-open-data op cit.

[7] https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1820781676-22301

[8] Statutory Review of the Motor Accidents Act 2017 5 July 2021 Clayton Utz p8

[9] /www.sira.nsw.gov.au/resources-library/workers-compensation-resources/publications/workers-and-claims/summary-of-the-sira-customer-experience-and-health-outcomes-study

[10] https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1820781676-24372

Appendix 1:

Royal-Commission-Banking-Appendix-1-83-Cases-of-Insurer-Misdeeds-Chesterfield-Evans3

Appendix 2

Royal-Commission-Banking-Appendix-2-2-week-Diary-of-Insurer-Treatment-Denials-Chesterfield-Evans Download

Appendix 4:

Royal-Commission-Banking-Appendix-4-Radiology-request-denials-by-insurer-Chesterfield-Evans Download

20/08/2021

Attitudes to Anti-Vaxxers- a parallel with smokers?

20 August 2021

I spent over 20 years of my life with my principal task to fight the tobacco industry. I saw how harmful smoking was in my patients, and tried to tell them. But smoking was common, allowed everywhere and, after food, the most advertised product in the country. Shops were so covered with ads that when you drove into a town, you looked for the cigarette ads to find the food shop. It was normalised. One of my patients, whose leg I had just amputated said, ‘All the doctors say that smoking is harmful, but if it was the government would do something about it’.

There were almost no smoke-free restaurants anywhere, because the non-smokers had been trained to put up with it, and restaurateurs were worried that smokers might leave them. They knew that the non-smokers had no choice. The tobacco industry told the pub owners that smokers drank more and gambled more, so they had better not offend them, so the Australian Hotels Association were the major lobby, with the Registered Clubs and Restaurant Association tagging along. The tobacco industry disputed the science long after it was proved to any reasonable analysis, and smokers clung onto this. The tobacco industry PR followed what was called the ‘tightrope policy’. They did not know if smoking was harmful because they were not doctors, so they were not responsible for selling a lethal product, but because everyone had heard it was harmful, smokers were taking their own risks.

Smokers therefore said, encouraged by the Industry that it was their ‘right to smoke’, and then they denied that it harmed everyone else. So instead of the tobacco industry having to prove that passive smoking was harmless, the medical profession then had to prove it was harmful and then get legislation implemented, a process that took about another 45 years at about 43 deaths a day in Australia. Since non-smokers also got heart attacks etc, the Industry argued that they could not blame them on the second hand smoke.

Now we have the ‘right not to be vaccinated’ and the ‘right not to be excluded because we are unvaccinated’. Instead of spreading second hand smoke, unvaccinated people are spreading COVID virus. And they are saying that vaccinated people also spread the virus and can also catch it. Perhaps. But vaccinated people spread less virus, and the right not to be exposed to a virus trumps the right to spread it.

China unashamedly goes for the greatest good for the greatest number and puts little store on individual rights. Our tradition of Greek thought is all about the individual reaching his or her full potential, even if this means we tend to overlook the exploitation of others. This is becoming increasingly relevant as unregulated markets, like a Monopoly game, move money upwards and increase inequality.

I saw a meme yesterday that the CDC (Centre for Disease Control) does not mandate masks. This was in the context of the conclusion that ‘neither should we’. No doubt CDC does not need to mandate masks (assuming that the meme was correct)- the people who work there will have the vaccine ASAP.

The answer in civil rights terms if that anti-vaxxers have the right to be unvaccinated as consenting adults in private, but they do not have the right to go into public spaces where they may spread the virus. That is the individual rights answer and also the greatest good for the greatest number. We had a tobacco epidemic for 100 years, when it should have lasted 50 years if there had been science-based policy. This must not happen with this epidemic. We must have a lockdown until probably 90% of the whole population is vaccinated. We should vaccinate people who want it as fast as we can. Then we should have vaccine passports so we can open up again. Florida in the US is showing us what happens when silly policies are followed.

04/08/2021

The 2021 Census- Why you should put ‘No Religion’

4 August 2021

I thought that Australia was one of the least religious countries in the world in terms of church attendance. When I was in Uruguay a tour guide claimed that his was the least religious country, and I said that Australia was. Looking at church attendance statistics we were both wrong.

Here are some figures from Pew Research in 2018: China 1%, Sweden 6%, Russia 7%, Norway 7%, UK 8%, Germany 10%, France 12%, Uruguay 14%, Spain 15%, Greece 16%, Australia 17%, Chile 19%, Canada 20%, Israel 30%, the US 36%, Bangladesh 58%, Indonesia 73% (From comparecamp.com)

Church attendance is declining everywhere in the developed world, but their influence here is rising due to their systematic entry into politics. Scott Morrison is fond of saying ‘God helps those that help themselves’ and seems to live by this, getting Pentecostals into Parliament and into Cabinet, (not to mention helping himself with sports rorts and car parks).

The religious agenda of subsidies to religious schools to the detriment of State schools, the huge subsidy by tax exemptions for Church-owned land and businesses, the continuation of religious education in supposedly secular schools to the exclusion of secular ethics classes, the exemptions to the Equal Opportunity laws that allow churches not to hire gays, the right to continue to smack children, and even demands to have special rights with the 2019 Religious Discrimination Bill which may have unintended consequences are examples enough.

The subsidies to religion through tax exemptions are principally a historic legacy of when secular law replaced church law. No government has been brave enough to repeal them and in the 1960s ‘State Aid for Church schools’ was a catch cry that allowed governments to win elections as the Church claimed that parents who went to Church schools were paying twice in school fees and in taxes. When I was in Parliament I asked the then Treasurer, Michael Egan, what the cost of the Church tax exemptions were and he replied that it would be too expensive to cost these so he was not going to answer the question!

Another little gem that turned up during the NSW Upper House inquiry into Social Housing (Report No 7/53 2006) was that the NSW government was building houses on Church land. I asked who would own the houses? The answer was that it was a ‘joint ownership’ in which the State owned them at first but over a decade the ownership transferred to the Church, so that in 10 years the Church fully owned them. From Day 1 the Church managed them. How were the tenants selected? Anyone who was on the Housing waiting list could apply. We visited one of the houses, a 3 bedroom one with a retired couple in it. ‘Please notice the garden, they are very proud of it ‘, we were told. The lady of the house was also very proud of her Royal Doulton tea set from which we drank. We asked how she got the house. She said, ‘We heard the Church was going to build some houses so we started going to Church and we were on the list so we got one’. The children and grandchildren come and stay occasionally.

I asked the Church facility manager if he ever had tenant problems. ‘Not often’ he said, ‘As we usually choose the tenants’. ‘But we had one tenant, a blind lady with a little girl, who had a boyfriend and they used to have huge fights and disturb the neighbours’. ‘She had to go’. He showed us a round hole in the plaster where the boyfriend had opened a door roughly and the door handle had punched through. The house was vacant. Blind single Mums with boyfriend troubles get the boot.

This level of detail is not in the final report. No doubt the Church managed properties have fewer tenant problems than the government managed ones, as this why the Housing Dept with limited stock ends up with ghettos of social problems.

The assumptions are that the Church is basically a charity, which does work that no one else would do, and that its right to prosthetise is tolerated as the majority agree with its teachings. We have not reached the stage of the USA where school boards try to stop science teachers teaching evolution, but the religious influence is strong in education. I recall happily singing, ‘All things bright and beautiful, All creatures great and small, All things wise and wonderful, The Lord God made them all’ and several similar verses to follow. It was many years later before I wondered if it was good that this was how it was.

The Church has tried actively in Australia to get people to fill in the census form by how they were brought up, which naturally creates a massive lag in the statistics. I find the church attendance figures above hard to believe and wonder if new migrants of non-Christian faith have swelled the number of church goers. In our area the Presbyterian Church, with a congregation of 2 or 3 closed and was sold a couple of decades ago.

The Christian Churches’ prestige has declined massively all over the developed world, with the paedophile scandals, and now most recently with the scandals at the Vatican Bank, which were alluded to in David Yallop’s 1983 book ‘In God’s Name’ which alleges that Pope John Paul 1 was murdered at least in part because he tried to reform the Vatican Bank.

So it is important that those who do not believe write ‘No Religion’ on the Census form, which is to be filled out for the night of Tuesday 10 August. We need to demonstrate how many non-believers there are, and to work towards the secular state that is supposedly guaranteed in the Constitution.

www.smh.com.au/national/lapsed-catholics-need-to-reflect-their-beliefs-in-the-census-20210730-p58edo.html?fbclid=IwAR3i2ewer_sI58oFyfjHztjKIuNJOQmLFFjeufKFhJGEAWaoSJFn1MGQOf8

21/07/2021

Privatised Job Services- Guess who benefits?

21 July 2021

Privatisation of job services was based on the concept that competition improves performances; hey we all run faster in a race than on a jog.

It takes the simple model and assumes that public servants do not work as hard as the lean, mean private sector workers.

I have worked in the public service here and the UK for some years. I defy anyone to say that salaried doctors do not work hard. How does a basic 60 hours a week, with a few hours of unpaid overtime a day and on call one night in two for ICU or ED sound?

I was at Sydney Water for 13 years. The clerical staff worked their 35 hours, but the professional staff were mainly there until 6pm, despite only being paid to 3.30pm. The clerks knew their jobs and did their jobs. They thought about their work, prioritised the important things and did them. Their jobs were safe, they were honest, and criticism of them was frankly misplaced. So was the idea that a ‘blow-in’ manager could do their jobs better than they could.

The assumption of privatisation of job seeking is that contractors would do better than the CES. The Key Performance Indicators were set up so that they go paid less for people who were easier to place and more for those who were hard to place. So it was presumably staffed as cheaply as possible, and the business model concentrated effort where the most money could be had for the least work. People who would have got a job without the providers help at all were money for jam. People who were very difficult to place were not worth spending time on. So instead of an ongoing effort to help people in whatever way possible there were distorting priorities- what do you expect? In this case you get what you pay for.

There was a similar nonsense when there was a privatised effort to lower unemployment, which was in the mid-1990s. This drive did not come with any more jobs, so the best hope was reclassification of people who were not working. Many people were sent to me as a doctor to fill in their Disability Pension forms, as the private sector were given bonuses to get people off the dole and putting them disability pension qualified as this. And they think that the public service does paper shuffling- they are amateurs!

After they had expanded the Disability Pension numbers a few years went by and Morrison decided that there were too may people on this, so he would make it tougher to get. He boasted that only a third as many people were put on the disability pension in one year than had been the case the year before. I knew some of the people who could not get the disability pension. There were not enough jobs for healthy people, let alone unhealthy ones. They were demeaned and humiliated, with supposed ‘mutual obligations’. They had to waste their time writing job applications for jobs that they had no chance of getting, and presumably the bosses wasted time either reading them, or just binning then without bothering.

When NSW passed legislation that Workers Compensation would only be for 5 years and then they would have to apply for a disability pension the object was to transfer the costs of injured workers from the State insurers’ premiums to the federal taxpayer. Centrelink was having none of that. Of the people kicked off Workers Comp, only about a third managed to get a disability pension; the rest were on ‘Newstart’ applying for jobs that they had no chance of getting and on far less money than before. Patients came to me asking for ever more elaborate reports to try to get disability pensions when they needed them.

One man, a 61 year old Middle Eastern man who had been on compo for 13 years and was carer for his disabled wife could not get a disability pension. He had chronic back pain and a limp. His English was poor, he was illiterate in English (and possibly Arabic) with a file two inches thick. I spent a lot of time writing a report for him. Centrelink thanked me but said they could only pay a small amount for such reports. So I will not do such reports again, and presumably neither will any of the other doctors- we cannot afford to work for free to fight a system with a different agenda.

Meanwhile the private providers are cream-skimming, adding another layer of costs. Because a market system transfers money upwards to those with more economic power who can control their pieces and costs, a government and a welfare system needs to transfer wealth both to everyone in society equally by building facilities everyone can use or by direct payments to those who are unable to get jobs or who are otherwise disadvantaged.

The problem is that jobs are being offshored to low wage countries or replaced by technology. This is national problem for high income countries. It is a problem for the whole country, but it affects some people directly. We are all lucky that our dollar is high and our goods cheaper because low wage countries make things cheaper. So we all should contribute to make our own country more equal.

Until we demand a fair system we will not get one. Stopping rip offs, and paying CES people a fair wage to do a fair job is a start.

https://theconversation.com/the-problem-with-employment-services-providers-profit-more-than-job-seekers-162421?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20July%2021%202021%20-%202008419727&utm_content=Latest%20from%20The%20Conversation%20for%20July%2021%202021%20-%202008419727+CID_fbb8f126a3150e0c593a044f9ebff43b&utm_source=campaign_monitor&utm_term=The%20problem%20with%20employment%20services%20providers%20profit%20more%20than%20job%20seekers

17/07/2021

Giving out Jobs to Perpetuate the Status Quo

17 July 2021

The composition of the US High Court, especially on the issue of abortion has had more publicity in Australia than our own stacking of the judiciary and major government bodies. Where are the records of all this? Has it just continued quietly under the radar with George Brandis and Christian Porter?

The Liberals have been masters of putting conservative people and ?mates in the judiciary and on bodies such as Clean Energy, which they did not manage to abolish. This will naturally make it very hard for the country to move on when they are voted out. The judiciary are appointed for life- about the only people in the country left in that position, and these major Government bodies have appointments with quite long tenure, so that change will be both hard and delayed. Years ago these problems would have been in the hands of relatively unsackable career public servants.

We presume that Matthias Cormann had a miraculous change toward clean energy once he got to the OECD and did not have to toe the Morrison government line. But people who have spent their working life in an industry are unlikely to do the same. Once again it is the Liberals standing in the way of progress for as long as they can.

Taylor appoints another fossil fuel executive to a key clean energy body

16/07/2021

Chomsky- the 10 Strategies of Media Manipulation

16 July 2021

Chomsky is one of the most important intellectuals alive. He has charted the ability of the State to control people without force, which is the key difference between us and the totalitarian states.

He has drawn up the list of the 10 strategies of manipulation through mass media.

1-The strategy of distraction

The primordial element of social control is the distraction strategy that consists of diverting the public’s attention from major problems and the changes decided by political and economic elites, through flooding by continuous distractions and insignificant information.

Distraction strategy is also essential to prevent the public from becoming interested in essential knowledge in the area of science, economics, psychology, neurobiology and cybernetics. Keeping the audience’s attention deviated from real social problems, imprisoned by themes without real importance.

Keeping the public busy, busy, busy, with no time to think, back to the farm like other animals (quoted in the text ′′ Silent weapons for quiet wars ′′).

2-Creating problems and then offering the solutions.

This method is also called the ′′ problem-reaction-solution “. It creates a problem, a ′′ situation ′′ planned to cause a certain reaction from the public, with the aim that this is the mandate of the measures they want to accept. For example: letting urban violence intensify or spread, or organize bloody attacks, with the aim of the public then requiring security laws and policies to the detriment of freedom. Also: creating an economic crisis to make social rights demotion and dismantling of public services accepted as a necessary evil.

3-The Strategy of Graduation.

To make an unacceptable measure accepted, you only need to apply it gradually, by dropper, for consecutive years. This is how radically new socioeconomic conditions (neoliberism) were imposed during the decades of the 80 s and 90 s: minimum state, privatisation, precariousness, flexibility, mass unemployment, wages that no longer guarantee dignified incomes , so many changes that would have brought about a revolution if they were implemented at once.

4-The Strategy of Deferring.

Another way to get an unpopular decision to accept is to present it as ′′ painful and necessary “, gaining public acceptance, in the moment, for future application. It is easier to accept a future sacrifice than an immediate sacrifice. First, because effort isn’t that taken immediately. Second, because the public, the mass, always tends to naively hope that ′′ everything will be better tomorrow ′′ and that the required sacrifice could be avoided. This gives the audience more time to get used to the idea of change and accept it resigned when the time comes.

5-Reach to the public like children.

Most publicity advertising uses speeches, topics, characters and a particularly childish intonation, many times close to weakness, as if the viewer was a few years old creature or a mental moron. When you try to deceive the viewer the more you tend to use a childish tone. Why? Why? ′′ If someone addresses a person as if they are 12 or under, then based on suggestionability, they will probably tend to a response or reaction even without a critical sense like that of a 12 person. years or less ′′ (see ′′ Silent Weapons for quiet wars ′′).

6-Using emotional aspect much more than reflection.

Take advantage of emotion it’s a classic technique to provoke a short circuit on a rational analysis and, finally, the critical sense of the individual. Additionally, the use of emotional register allows the unconscious access door to implant or inject ideas, desires, fears and fears, compulsions, or induce behaviors.

7-Keeping the public in ignorance and mediocrity.

Making the public incapable of understanding the technologies and methods used for their control and slavery.

′′ The quality of education given to lower social classes must be as poor and mediocre as possible, so that the distance of ignorance that plans between lower classes and upper classes is and remains impossible to fill from the lower classes “.

8-Stimulating the public to be complacent with mediocrity.

Pushing the audience to think it’s fashionable to be stupid, vulgar and ignorant…

9-Strengthening self-guilt.

Making the individual believe that he is only the culprit of his disgrace, because of his insufficient intelligence, skills or efforts. So, instead of rebelling against the economic system, the individual devalues himself and blames himself, which in turn creates a depressive state, one of whose effects is the inhibition of his action. And without action there is no revolution!

10-Knowing individuals better than they know themselves.

Over the past 50 years, science’s rapid progress has generated a growing gap between public knowledge and those possessed and used by dominant elites. Thanks to biology, neurobiology, and applied psychology, the ′′ system ′′ has enjoyed advanced knowledge of the human being, both in its physical and psychological form. The system has managed to learn better about the common individual than he knows himself. This means that, in most cases, the system exercises greater control and greater power over individuals, greater than that which the same individual exercises over himself.

14/07/2021

The Broken Bargain- Australia Institute Webinar

14 July 2021

Sally McManus, ACTU Secretary looked at Australia’s growing wages crisis in a 1 hr webinar at 11am today.

She told of how the Australian system of award wages had been world-leading with its concept of a ‘fair go’, and it had an outcome similar to the Nordic countries. This has, however been in retreat since 1975 with the rise of neo-liberalism and trickle-down economics as the dominant political philosophies.

Perhaps the most amazing fact in the webinar was that the workers share of GDP in 1975 was a record high of 54%, but has declined by 10.4%, and this has gone to the corporate sector. The amount in dollars is $200 billion a year. While wages growth in Australia has been generally below the CPI, wages recently actually overtook the CPI briefly. However, as McManus points out the CPI is composed of discretionary goods, which tend to be imported and more luxury items, and necessities. The discretionary component has not risen as fast as wages, but the necessities component has risen faster. So the lower paid, who mainly spend on necessities have gone backwards relative to the most important component of their spending. McManus estimates this at $20,000 per waged worker.

She identifies poor bargaining power as the cause of the change in the distribution of Australia’s wealth. According to the RBA (Reserve Bank) temporary workers have kept wages down. This is partly, but not wholly, workers on visas who are a group likely to be a whole sector vulnerable to wage theft. But Labour Hire companies have also lowered wages and conditions as workers can simply not be offered any shifts.

Visas have also been used to avoid training people. TAFEs have been run down and overseas workers’ skills have been used to save money on training. This has improved short-term profits but deskilled the country- a bad strategy. It has relied on foreign training.

COVID has been used as excuse for the economy not doing well, but it has not led to a revival. 60% of new jobs since the last lockdown have been casual, and 57% are part-time.

Another Australia Institute IR expert, Jim Stanford, commented that Australia’s IR system was unique, but the changes since 2013 had severely limited the ability of workers to bargain. Only restricted aspects could be discussed, and conditions could easily be traded away. Even the ILO (International Labour Organisation) has commented on this. The casualisation of the workforce has been facilitated and most recently this has been a significant factor in the spread of COVID.

The webinar will shortly be available at https://australiainstitute.org.au

10/07/2021

Is There a Role for the Military in Vaccination?

10 July 2021

I felt that something was wrong when a Soldier started advising me about vaccinations.

Here is a good summary from Crikey of what seems to be happening.

www.crikey.com.au/2021/07/07/administration-with-authority-how-putting-the-vaccine-rollout-in-military-hands-is-corrosive-for-the-country/?utm_campaign=Weekender&utm_medium=email&utm_source=newsletter&wkndr=RFdETTg0am9ucG5qc2dpcVpTeTU2QT09&success=krsmvj

10/07/2021

NDIS Individual Assessments; A Symptom of a Wider Problem

10 July 2021

The current issue in the NDIS (National Disability Insurance Scheme) is the government’s efforts to introduce ‘independent assessments’ of people on the scheme and those who want to get on the scheme. The idea has been abandoned for the present, but that is not the end of the story. It is the beginning.

Some context is needed here. I was on a State Parliamentary inquiry into disability funding during which we heard evidence of inefficiencies within the disability sector where often there were shortages of appropriate services, and in some areas there were none at all. The real crunch time was when parents with children with disabilities realised that they were going to die eventually and wanted to make a plan for the rest of their child’s life. People would apply at various facilities, and be turned away as there were no places. They then assumed that they were on a waiting list, but usually no lists were kept. When a vacancy occurred, whoever applied at that time got it. It was mainly luck. Naturally the people trying to help their loved one wanted a guaranteed package that would continue after their death. More articulate parents and carers, who had struggled for years just wanted the money to buy the services that they felt that they needed. Many carers simply wanted more services, and hoped that a national system that guaranteed services for disability.

Given the political context of privatisation and reducing government involvement in everything, the scene was set to have disability services delivered by the private sector as a massive market for services. The private sector naturally wanted to get access to services that had been provided by government as a source of business and profit.

Government also had a real estate agenda. Some large institutions were on valuable land. The large facilities at Peat Island in the Hawkesbury and Stockton Disability Centre was on beachfront land just north of Newcastle. There was a residence for the grossly disabled opposite Wollongong Hospital that had taken years of fundraising for the parents to achieve. These could be sold off as the mental health facilities had been a few decades earlier, with the catchy slogan of putting the residents ‘back in the community’. The idea that the residents were better off isolated in a suburban homes with few facilities rather than in a community of people with the same problem and a well-structured programme of activities seemed a dubious proposition to me. Resident groups such as the relatives of long-term psychiatric facilities at Bloomfield in Orange were very scared of the suggested changes. There had been problems with the old system and some inappropriate facilities, but an overall lack of facilities was the major problem. It was not even throwing the baby out with the bathwater; it seemed more like smoke and mirrors.

The key question in dealing with any problem is how big a task is it? When the Committee asked how many people with disabilities there were, there was no answer. No register was kept. The two ways of calculating it were:

To add up all the people on all the types of possible benefits and get to a total.
To look at the AIHW (Aust. Institute of Health and Welfare) figures of what percentage of the population was disabled, then multiply this by the total population.

The latter method gave figures about ten times greater. So clearly if help or services were made more available, the numbers involved were going to blow out hugely from what was currently funded.

John Howard passed the Aged Care Act in 1998, which was the blueprint for the privatisation of the sector. Old people are very vulnerable. They have often sold the family home, so they are temporarily cashed up, looking for accommodation and long term care with mental and physical facilities failing, or they would not be there. Carers faced with responsibilities that they were not used to and uncertain of what care was needed were easy pickings also. The whole sector is more like a dysfunctional real estate market; a market failure due to insufficient ‘consumer information’, but also distorted incentives and priorities.

The NDIS was similar. Private operators with slick marketing made promises which would not be tested for some time, but people were signed up now. The not-for profit sector had never paid staff well, but most had a ‘care ethos’. Some of the private providers did not, and regulatory supervision was minimal. The government was pro-business and trying to give away responsibility.

But an absolute shortage of services was still a big factor. A neighbour who was a 95 year old retired academic widower wanted 2 hours a week of home help. For some reason he could not get a community nurse. The best deal he could get was 2 sessions of 2 hours at $65 an hour. The lady delivering the service was paid $21/hr. So much for private services; the ‘overheads’ are huge. I had suggested to Kevin Rudd’s 2020 Vision in 2000 that the Government needed to licence service providers as individuals if they wanted a market model, and our neighbour could have selected a person on a one to one basis. (I never even got an acknowledgement).

Now the government wants ‘independent assessors’ to evaluate cases, presumably to lessen costs. A number of points can be made about this. It assumes that the assessors will learn more about the patient in an interview than the people who work with them already know. The new management philosophy since the 1980s always assumes that a manager at the top will know more than the person actually doing the job. Naturally if the object is to save money and have the person at the bottom paid minimally, requiring no skills and interchangeable in staffing, this may be true. But if the people at the bottom were respected, trained and empowered, the need for the middle level experts might be much less.

‘Independent Medical expert’ assessors are used in the Workers Compensation and CTP systems. They work for agencies hired by insurance companies. Often they find the patients either have nothing wrong with them, or it is degenerative and not related to their injury. These experts are even flown from interstate and save insurers money by denying treatments. Presumably if they find in favour of the patients, their agency gives them less work. The agency takes its cut and has to please the insurer. So the systems are more complicated and an ever higher percentage of the money is spent in trying not to give services. The NZ National Accident Compensation scheme, though it was government owned, went to a private insurance model and the same thing happened. Doctors who had a track record of denying liability were flown around the country to do their medicals.

The assumption may still be that well intentioned assessors still can do better. My widowed mother lived alone in the family home and had a stroke. A neighbour noticed her confused, walking on the balcony. She recovered, but seemed to have lost some judgement. She was assessed by an ACAT (Aged Care Assessment Team) who said that she could live alone in supported accommodation. So we got her into a unit in the grounds of an old house, where she could book a dinner at a days’ notice in the communal dining room, have a nurse onsite during the day, and had a right to a nursing home bed if she ever needed one. Seemed perfect. She said that she could look after herself. Can you microwave a dinner? Yes. OK. Do it. It got done. No problem. Dinners in the frig. Sweets in the jar on the mantelpiece; see you in 2 days. Arrive in 2 days. Dinners still in the frig. Lolly jar empty. Very hungry- can we go to lunch? She could do anything when asked, but could not initiate a process. She could not think to get a dinner from the frig, or book lunch tomorrow in the communal dining room, nor ask for help. The one-off team could not pick this. Neither did the family. But it emerged when the situation at home was known. This is just a story, but a carer who is savvy and properly trained will know more than a university-qualified assessor who has only a short knowledge of the patient. And naturally the person on the job actually delivers the service and is not an extra cost. They can also judge relative needs of people on a run or in an area if resources are limited.

So the scheme to bring in assessors is the tip of an iceberg.

Private insurance models have huge problems at many levels. The overheads of Medicare are a bit under 5%. The overheads of Private Health Insurers are about 12%, and they cannot refuse to pay doctors. The overheads of US Health insurers are about 12-36%, as the best way to improve profits is to cut costs (payments to patients) rather than increase services and then try to prove you have and sell on that basis. At the bottom of the efficiency barrel is our own NSW CTP system with overheads of almost 50%. The question has to be what is the focus of the system? Delivering services, or saving money? The US health insurers, like our CTP scheme are very good at making money. What they make their money from just happens to be people rather than widgets. The main cost savings of privatisation seems to be destroying award conditions and lowering ‘staff costs’. The immense administrative savings from universal systems, where determining entitlement and paying for profits are eliminated cannot be matched by any private system, despite what the ideologues might pretend.

The NDIS is currently a fund supposedly to help people with disabilities. These people apply to get ‘packages’ of money and services. Businesses persuade people to spend their packages with them. It is a market. But there are more people with disabilities than was expected, for the reasons discussed above. So a new level of assessors, were to be rolled in, but a huge outcry has prevented this temporarily. But the problems that led to the need for the assessors remain implicit in the design of the NDIS, which is fatally flawed. The government, particularly this one, is not going to take this very large bag of lollies from the private sector. The totally inefficient Private Health Insurers (PHI) give money to political parties and advance by stealth, letting Medicare become irrelevant for health care. Disability is now also privatised, and a new private lobby is in there. It has not yet generated a Royal Commission into its rip-offs, but it will, not that the Aged Care Royal Commission has stopped the privatisation of aged care. The political forces are too great. It is ironic that as Medicare is starved and pays less and less of the doctors’ fees its levy was increased, using a wave of sympathy for people with disabilities to make a bigger pool of money for increasingly private disability providers.

How to fix the problem?

I do not pretend to have all wisdom on this, but in dealing with difficult political problems I think it is wise to set a direction, take some basic steps and consult widely, looking for advice particularly from those who do not get an immediate financial benefit.

Here is a start:

Recognise that disability is not a sickness. Some disabilities are inherited; others are acquired due to accident, illness or aging. The sector is quite diverse, often divided up by the type of disability or how it was acquired. Sickness has an ‘episode’ model, based on traditional infectious diseases or surgical treatment models. Disability tends to be long-term and may improve or be worked around, or may degenerate gradually. As such it needs long-term solutions like welfare, but using the term ‘welfare’ now implies charity. Disability funding is funding to enable those less fortunate to have as normal a life as possible. From our common wealth, we give more to those who need more so that our society has equal opportunity for all. We are being taught that tax must be minimised and if we are getting less than we pay we are being ripped off. A better model is to consider the statement by Rhonda Galbally, ex-CEO of VicHealth, ‘There are two populations, the disabled and the not-yet disabled; if you are lucky enough to be in the second group, you should be happy to help pay for the first’.

The idea of a universal service obligation is the cornerstone. We should start with the assumption that people with disabilities should live in our society with as normal a life as possible and we should adapt to support them in as cost-effective way as possible.

My suggestion is that the Community Nursing service is the basic structural framework. We assume that people with disabilities will be living in society, and need varied and integrated support. If they are born with a disability or acquire one, they will come in contact with the acute hospital system, which will hopefully document their situation and alert the community support system. People on the ground will then liaise with family to see what support there is for independent living, and organise resources, calling in specialists of required. The cost of home support may be part of a package or allowance. Individuals may register to offer services for everything from shopping, cleaning and lawn mowing to medical or paraplegic support services. The government will register and insure both practitioners and those who use their services and may put training requirements on those who wish to register for some skills. A market with consumer feedback as exists for restaurants or other practitioners will allow people to hire help directly without big corporations adding massive overheads.

Whether the monies are paid separately of via Centrelink is an administrative question, but Centrelink has to have a major makeover so that it is not the niggardly decider of the ‘worthy poor’ with its chief function being to avoid paying anyone, or paying as little as possible. If society cannot find everyone employment, we must share what we have to those who are disadvantaged by disability or circumstance. This will collide head on with the problem of increased numbers of those with disabilities, but the extra load must be seen as part of having a decent society.

The way we are going seems to be privatising, allowing huge profits, then running out of money and shutting the gate on those who do not yet have packages. The independent assessors were merely the instruments of Managers who were not able to make their own assessments and did not trust the people who actually deliver the services. The assessor problem was the tip of the iceberg of a system that has all its underlying assumptions wrong, but sadly has a lot of political power that having been created, may not be able to be undone. The first step is to understand what is happening. Hence this lengthy post.

www.abc.net.au/news/2021-07-09/ndis-disability-independent-assessments-model-dead-after-meeting/100277324

09/07/2021

Threat to Free Speech- when Chinese students pay and have an agenda.

9 July 2021

Here is an article from The Conversation talking of the effect of Chinese resistance to certain views on their history. Teaching is already distorted by the need to pass students who have paid a lot.

https://theconversation.com/cultural-sensitivity-or-censorship-lecturers-are-finding-it-difficult-to-talk-about-china-in-class-164066?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20July%208%202021%20-%201996419600&utm_content=Latest%20from%20The%20Conversation%20for%20July%208%202021%20-%201996419600+CID_14a38ceb026dee8d10dceb6b59ffb3c6&utm_source=campaign_monitor&utm_term=Cultural%20sensitivity%20or%20censorship%20Lecturers%20are%20finding%20it%20difficult%20to%20talk%20about%20China%20in%20class