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SA now has a rough plan to deal with injury claims from Covid vaccines. Companies won’t be liable

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SA now has a rough plan to deal with from Covid-19 vaccine injury claims .

South Africa has a draft plan for how the Covid-19 Vaccine Injury No-Fault Compensation Scheme will work.

It is pretty broad strokes.

The scheme will offer vaccine manufacturers, and everyone else involved in rolling it out, immunity against damages claims, whatever happens.

But how much the government scheme will pay out, how that will be decided, and even who exactly runs it, we do not yet know.

 


South Africa now has a draft plan for how to legally and financially deal with any bad complications that arise from Covid-19 vaccines – but only in very broad terms.

Co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma on Friday published the framework for Covid-19 Vaccine Injury No-Fault Compensation Scheme, and the associated Covid-19 Vaccine Injury Compensation Fund.

The scheme will be responsible for handling claims of injury from vaccines for the coronavirus, and the fund will pay out money due for such injuries. That is supposed to ring-fence the process financially, while making for smoother and faster administration than if claims had to go through the legal system, as is necessary for typical medical negligence claims.

Most importantly from the perspective of the pharmaceutical companies that demanded it, the scheme protects them, in absolute terms, from facing claims if their vaccines harm or kill South Africans.

But many important questions about the scheme remain unanswered, including how much money it will have, and who will actually run it.

Here’s what we (mostly don’t) know about how the Covid-19 Vaccine Injury No-Fault Compensation Scheme will work.

How much money is involved, in total

Claimants will still be able to go to court if they are ultimately unsatisfied, but the special

compensation fund is supposed to represent the vast majority of taxpayer money that will

be put at risk if something goes wrong with vaccination.

There is no indication of how much money the scheme will have access to, though, only

that it will get money via an appropriation from Parliament.

The emphasis on its importance suggests it will have to be well funded.

“The Scheme is an essential part of the Covid-19 vaccination roll-out, which is the most

critical component of the national plan and response to alleviate, contain and minimise

the effects of the disaster, and ultimately to end the State of National Disaster,” read the draft rules.

Who is in charge

The Scheme is set up “under the auspices of the National Department of Health”, and that

department is also responsible for its administration. But the minister of health must

consult with the minister of finance about which institution will run its finances – and also

about which institution runs its administration.

On top of that involvement, the minister of finance can issue directions on “the

requirements relating to the financial management and oversight of the Scheme and the Fund.”

Likewise, the rules on how to report vaccine injuries, and everything else to do with the

running of the system, will come from the health portfolio – in consultation with the minister of finance.

Claims will be adjudicated by a panel, with an appeals panel above that. Each of the panel

members “must have suitably qualified medical and any other relevant experts”, which

will be appointed by the minister of health.

In one more complication, the scheme must also get a governance and oversight

committee, “headed by a retired judge, and comprised of medical, actuarial, legal and any

other relevant experts”, to oversee it. That committee will be appointed by the minister of

health, with no need for input from any other person or institution.

What the actual rules around claims will be – including how much claimants will be paid

Though the draft plan sketches out the structure of the compensation scheme, all the

actual rules for payment must still be created.

The ministers of health and finance must write those rules, which will cover exactly who

may claim, for what, how, and when.

They must also determine how much will be be paid.

We do know – roughly – who will be covered for what…

To be eligible for compensation will require three things:

  • the use of an approved vaccine
  • bought and distributed by the national (not a provincial) government
  • which is administered at a facility on a list compiled by the government – though not necessarily a government facility.

Coverage is supposed to be for “severe injuries” which causes

  • “permanent or significant injury”, or
  • “serious harm to a person’s health”, or
  • death, or
  • “other damage”

as long as the scheme’s panel of experts agrees such injuries were caused by the vaccine.

… and who will definitely not have to pay if something goes wrong.

While there is much uncertainty about the working of the scheme, the protection offered

to vaccine makers, and those who administer it, is clear.

Anyone who makes a claim of injury may do so only against the state, the regulations

say, not any company, individual, or facility involved in the process.