CTP – Can I choose my rehabilitation providers?

The Supreme Court of Queensland’s decision in Delaney v AAMI Insurance Ltd [2007] QSC 174 involving a severely brain-injured motorcycle passenger provides significant clarification on the interpretation and application of the Motor Accident Insurance Act 1994 (Qld) (MAI Act), particularly regarding the provision of rehabilitation services.

Background

On 16 June 2006, the applicant sustained severe brain injuries as a pillion passenger in a motorcycle accident, leaving her in a persistent vegetative state. The motorcycle driver was killed. A motor accident claim was lodged on 14 July 2006, and on 20 July 2006, the respondent (the compulsory third party insurer) agreed to fund reasonable and appropriate rehabilitation without admitting liability.

A disagreement arose between the parties regarding the selection of rehabilitation service providers, leading to a significant delay in commencing rehabilitation. After unsuccessful attempts at mediation, the applicant brought this application to the Supreme Court under Section 51(5)(b) of the MAI Act.

What are the Rehabilitation Standards?

The Motor Accident Insurance Commission published Rehabilitation Standards for CTP Insurers which provide further guidance on insurers’ obligations. Key points include:

1. The insurer’s role is to facilitate the rehabilitation process, not to develop treatment plans;
2. Insurers must facilitate access to appropriate rehabilitation services for injured claimants;
3. Claimants should be informed of their ability to exercise choice in selecting appropriately qualified and experienced service providers;
4. Insurers must have a system in place to manage the rehabilitation process appropriately and effectively.

Court’s Decision and Implications

The court strongly criticised the insurer’s approach to rehabilitation services. The judge noted that the applicant’s rehabilitation needs had been overshadowed by the respondent’s “intransigent attitude” of only funding services from providers it selects. This approach was deemed inconsistent with the legislative intent to promote and encourage rehabilitation of injured persons. The court emphasised that the insurer’s stance contradicted the Rehabilitation Standards, which require claimants to be informed of their ability to choose appropriately qualified and experienced service providers. The judge stressed the importance of dealing with these issues “calmly and dispassionately, in a spirit of co-operation and goodwill,” highlighting that it is in the mutual interests of both parties to do so. The court noted the importance of a collaborative approach to rehabilitation and the insurer’s obligation to facilitate, rather than control, the rehabilitation process. It also reinforces the claimant’s right to have a say in their rehabilitation journey, aligning with the broader principles of the MAI Act and associated standards.

The court made specific declarations on which rehabilitation service providers were reasonable and appropriate in this case, including naming specific professionals for various roles

Impact on Injured Persons

1. Right to Choose Providers – The decision affirms claimants’ right to exercise choice in selecting qualified rehabilitation providers.
2. Timely Access to Rehabilitation – By resolving the impasse, the court emphasized the importance of prompt rehabilitation commencement.
3. Comprehensive Rehabilitation Team – The court ensured the claimant receives services from a range of specialists.
4. Long-term Perspective – The decision acknowledges that recovery from severe brain injury is a long-term process.
5. Judicial Oversight – The case demonstrates courts can intervene to determine appropriate rehabilitation services when parties cannot agree.

Impact on Insurers

1. Limits on Provider Selection – Insurers must be more flexible in accommodating claimant preferences for qualified providers.
2. Adherence to Rehabilitation Standards – Insurers must comply with the Rehabilitation Standards for CTP Insurers.
3. Cooperation Expectations – The court stressed the importance of insurers dealing with rehabilitation issues “calmly and dispassionately, in a spirit of co-operation and goodwill.”
4. Cost Management – While insurers can ensure services are reasonable and appropriate, they cannot arbitrarily reject all provider nominations from claimants.
5. Potential for Judicial Intervention – Courts are willing to make specific declarations about rehabilitation services, potentially reducing insurers’ control over the process in disputed cases.

This decision strengthens the position of injured persons in securing appropriate rehabilitation services while clarifying insurers’ obligations under the relevant legislation and standards. It shows the importance of a claimant-centred approach to rehabilitation within the motor accident insurance scheme, particularly in cases involving severe injuries with long-term implications.