Section 58 - The Jurisdictional Limits of the Medical Assessment Service (MAS)

Published 10 Dec 2015

Scott v Insurance Australia Limited [2015] NSWSC 1249

Background

The Claimant (Ms Scott) was injured in a motor vehicle accident on 15 May 2010. The insurer wholly admitted liability under section 81.
For the first 5 months post the accident the Claimant made of claim for 40 hours per week, voluntary gratuitous care and assistance. From 6 months post the accident until the date of assessment the 10.5 hours per week was claimed. Post assessment 10 hours per week was claimed for the life expectancy of the Claimant. 

The Insurer disputed the amounts of gratuitous care and assistance claimed and referred the matter to MAs for assessment.  Of course the Claimant contested the assessment and important at this stage contested the jurisdiction of MAS to make this determination. 
MAS issued certificates determining that while the voluntary gratuitous care and assistance was related to the accident it was not reasonable and necessary in the circumstances that were put forward to MAS. 

The Claimant challenged this decision in the Supreme Court of New South Wales.

Judicial Challenge

The challenged was particularised with great detail but essentially came down to two main arguments:-

  • MAS lacked jurisdiction to assess the matters because the voluntary provision of attendant care services, covered by s 141B of the Act, was not treatment provided or to be provided within the meaning of s 58(1)(a); and
  • In the alternative, on the material before it, MAS could not be satisfied that there was a dispute about those matters.

The Insurer in essence argued that the definition of treatment was not conditioned by the requirement that the relevant services be paid or unpaid, or whether the provider was qualified or unqualified.

Essentially the case came down to the definitions of "attendant care services" and "treatment". So how does the act define these terms:- 

    3 Definitions 
    attendant care services means services that aim to provide assistance to people with     everyday tasks, and includes (for example) personal assistance, nursing, home     maintenance and domestic services
    42 Definitions     
    In this Chapter ... treatment means:
            (d) the provision of attendant care services.

Depending on the definitions to Section 3 and 42, Section 58 (the section offering the jurisdiction of MAS) could have different interpretations.

Decision

The Court found at [55] referring to section 58: 

"It appears in an exhaustive list (“means”) of matters, each of which would be     provided by a qualified medical or paramedical professional, “whether or not at a     hospital”. That is to say, in that context, “attendant care services” relate to such     services professionally provided."

Ramifications

his is a finding that treatment as referred to in section 42 means "paid" or "professional provided". Meaning that voluntary gratuitous care and assistance does not come under this definition. 

This is an important finding as when we now define "treatment" in section 58. Voluntary gratuitous care and assistance provided by unqualified friends and family is now outside the ambit of section 58.

Therefore, MAS fell into jurisdictional error by entertaining the treatment dispute by the insurer and further by deciding that voluntary gratuitous care and assistance was not reasonable and necessary in the circumstances of Ms Scott.

In summary under section 58 MAS does have jurisdiction to determine disputes over attendant care services provided on a commercial basis are reasonable and necessary and causally related to the accident. 

But in practice, claims for commercial care area are mostly made into the future, not the past, therefore limiting the power of the Insures.

To conclude Scott v Insurance Australia Limited is a win for the average Australian.