Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW)

An Act to amend the Motor Accidents (Lifetime Care and Support) Act 2006 and the Motor Accidents Compensation Act 1999 in relation to treatment and care needs; and for other purposes.

1Name of Act

This Act is the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012.

2Commencement

This Act commences on the date of assent to this Act.

Schedule 1Amendment of Motor Accidents (Lifetime Care and Support) Act 2006 No 16[1]Section 3 Definitions

Insert in alphabetical order in section 3 (1):

approved provider—see section 11C (2).

assessed treatment and care needs—see section 11A (2).

excluded treatment and care needs—see section 5A (2).

[2]Section 3 (1)

Omit “section 6” from the definition of treatment and care needs.

Insert instead “section 5A”.

[3]Section 5A

Insert after section 5:

5ATreatment and care needs(1)

For the purposes of this Act, the treatment and care needs of a participant in the Scheme are the participant’s needs for or in connection with any of the following:

• (a)

  medical treatment (including pharmaceuticals),

• (b)

  dental treatment,

• (c)

  rehabilitation,

• (d)

  ambulance transportation,

• (e)

  respite care,

• (f)

  attendant care services,

• (g)

  aids and appliances,

• (h)

  prostheses,

• (i)

  education and vocational training,

• (j)

  home and transport modification,

• (k)

  workplace and educational facility modifications,

• (l)

  such other kinds of treatment, care, support or services as may be prescribed by the regulations under this paragraph.

(2)

Despite subsection (1), the treatment and care needs of a participant do not include any treatment, care, support or services of a kind declared by the regulations to be excluded treatment and care needs.

[4]Part 2, heading

Omit the heading. Insert instead:

[5]Sections 6 and 10

Omit the sections.

[6]Part 2A

Insert after Part 2:

Part 2APayments under Scheme11AAssessed treatment and care needs of participants to be paid for by Authority(1)

The Authority is to pay for all of the reasonable expenses incurred by or on behalf of a person in relation to the assessed treatment and care needs of the person while the person is a participant in the Scheme.

(2)

The assessed treatment and care needs of a person who is a participant in the Scheme are those treatment and care needs that are assessed by the Authority, in its treatment and care needs assessment, to be treatment and care needs that:

• (a)

  are reasonable and necessary in the circumstances, and

• (b)

  relate to the motor accident injury in respect of which the person is a participant.

(3)

No expenses are payable in respect of:

• (a)

  excluded treatment and care needs, and

• (b)

  treatment and care needs that are not assessed treatment and care needs.

(4)

As an alternative to paying the expenses for which it is liable under this section as and when they are incurred, the Authority may pay those expenses by the payment to the participant of an amount to cover those expenses over a fixed period pursuant to an agreement between the Authority and the participant for the payment of those expenses by the participant.

(5)

The LTCS Guidelines may make provision for or with respect to determining which treatment and care needs of a participant in the Scheme are reasonable and necessary in the circumstances and relate to the motor accident injury in respect of which the person is a participant.

11BPayment not required in certain circumstances(1)

The Authority is not required to make a payment in relation to the following:

• (a)

  any treatment, care, support or service provided to a participant in the Scheme on a gratuitous basis (that is, anything provided to a participant for which the participant has not paid and is not liable to pay),

• (b)

  any treatment, care, support or service that is required to be provided by an approved provider but is provided by a person who is not, at the time of the provision, an approved provider.

(2)

However, the Authority may elect to make a payment in relation to any treatment, care, support or service referred to in subsection (1) if the Authority is of the opinion that special circumstances exist that justify such payment.

(3)

The LTCS Guidelines may make provision for or with respect to determining whether special circumstances exist that justify payment in relation to any treatment, care, support or service referred to in subsection (1).

(4)

To avoid doubt, this section applies even if the treatment, care, support or services concerned are provided in connection with the provision of the assessed treatment and care needs of a participant in the Scheme.

(5)

This section has effect despite section 11A.

11CApproved providers(1)

The following treatment, care, support or services (provided in connection with the provision of assessed treatment and care needs of a participant in the Scheme) are to be provided only by an approved provider of the treatment, care, support or service:

• (a)

  attendant care services,

• (b)

  any other treatment, care, support or services (other than the services of a medical practitioner) identified in the LTCS Guidelines as treatment, care, support or services that are to be provided by an approved provider.

(2)

An approved provider of a service is a person, or a person of a class, approved by the Authority (or by any other person specified in the LTCS Guidelines), in accordance with the LTCS Guidelines, to provide the treatment, care, support or service under the Scheme.

(3)

The LTCS Guidelines may also make provision for or with respect to the standards of competency of approved providers.

[7]Sections 48 (3) (a) and 49 (1) (a)

Omit “Part 2 (Care and support for Scheme participants)” wherever occurring.

Insert instead “Part 2A (Payments under Scheme)”.

[8]Sections 49 (1) (b) and (c) and (2) and 54 (4)

Omit “Part 2” wherever occurring. Insert instead “Part 2A”.

[9]Schedule 3 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012

[10]Schedule 3, Part 3

Insert after Part 2:

Part 3Provisions consequent on enactment of Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 20123General operation of amendments(1)

An amendment made to this Act by the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (the amending Act) applies in relation to any claim made on or after the relevant date, regardless of whether the claim is made in relation to past or future treatment and care needs.

(2)

To avoid doubt, subclause (1) applies even if the motor accident concerned occurred before the relevant date or the claim relates to a person who was a participant in the Scheme before the relevant date.

(3)

In this clause:

claim means a claim within the meaning of the Motor Accidents Compensation Act 1999 or a claim or request for payment in relation to treatment and care needs made to a licensed insurer or the Authority under this Act.

the relevant date means the date of introduction into Parliament of the Bill for the amending Act.

4Approved providers

An approval given by or on behalf of the Authority under section 10 that was in force immediately before the omission of that section, and the insertion of section 11C, by the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 is taken, on that omission and insertion, to be an approval under section 11C.

Schedule 2Amendment of Motor Accidents Compensation Act 1999 No 41[1]Section 27A Effect of Lifetime Care and Support Scheme payments

Omit “section 130A (No damages for expenses covered by Lifetime Care and Support Scheme)”.

Insert instead “section 141A (No damages relating to treatment and care needs for Lifetime Care and Support Scheme participants)”.

[2]Section 43A

Omit the section. Insert instead:

43AApplication of Chapter to treatment and care needs covered by Lifetime Care and Support Scheme(1)

This Chapter does not apply in respect of any treatment and care needs of a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006, or any excluded treatment and care needs, that relate to the motor accident injury in respect of which the person is a participant in the Scheme and that arise during the period in which the person is a participant in the Scheme.

(2)

This section applies:

• (a)

  whether or not the treatment and care needs are assessed treatment and care needs under the Motor Accidents (Lifetime Care and Support) Act 2006, and

• (b)

  whether or not the Lifetime Care and Support Authority is required to make a payment in respect of the treatment and care needs concerned, and

• (c)

  whether or not the treatment, care, support or service (provided in connection with treatment and care needs) is provided on a gratuitous basis.

(3)

In this section, treatment and care needs and excluded treatment and care needs have the same meanings as they have in the Motor Accidents (Lifetime Care and Support) Act 2006.

[3]Section 128

Renumber as section 141B and insert after section 141A (as inserted by Schedule 2 [7]) with the heading “Maximum amount of damages for provision of certain attendant care services”.

[4]Section 129

Renumber as section 141C and insert after section 141B (as inserted by Schedule 2 [3]) with the heading “Respite care”.

[5]Section 130A No damages for expenses covered by Lifetime Care and Support Scheme

Omit the section.

[6]Sections 137 (2) and 142 (3)

Omit “section 128” wherever occurring. Insert instead “section 141B”.

[7]Section 141A

Insert after section 141:

141ANo damages relating to treatment and care needs for Lifetime Care and Support Scheme participants(1)

No damages may be awarded to a person who is a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 in respect of any of the treatment and care needs of the participant, or any excluded treatment and care needs, that relate to the motor accident injury in respect of which the person is a participant in the Scheme and that arise during the period in which the person is a participant in the Scheme.

(2)

This section applies:

• (a)

  whether or not the treatment and care needs are assessed treatment and care needs under the Motor Accidents (Lifetime Care and Support) Act 2006, and

• (b)

  whether or not the Lifetime Care and Support Authority is required to make a payment in respect of the treatment and care needs concerned, and

• (c)

  whether or not the treatment, care, support or service (provided in connection with treatment and care needs) is provided on a gratuitous basis.

(3)

In this section, treatment and care needs and excluded treatment and care needs have the same meanings as they have in the Motor Accidents (Lifetime Care and Support) Act 2006.

[8]Schedule 5 Savings, transitional and other provisions

Insert at the end of clause 2 (1):

Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012

[9]Schedule 5, Part 10

Insert after Part 9:

Part 10Provisions arising from Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 201240General operation of amendments(1)

An amendment made to this Act by the Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (the amending Act) applies in relation to any claim made on or after the relevant date, regardless of whether the claim is made in relation to past or future treatment and care needs.

(2)

To avoid doubt, subclause (1) applies even if the motor accident concerned occurred before the relevant date or the claim relates to a person who was a participant in the Scheme under the Motor Accidents (Lifetime Care and Support) Act 2006 before the relevant date.

(3)

In this clause:

claim includes a claim or request for payment in relation to treatment and care needs made to a licensed insurer or the Lifetime Care and Support Authority under the Motor Accidents (Lifetime Care and Support) Act 2006.

the relevant date means the date of introduction into Parliament of the Bill for the amending Act.