Hong Kong Covid Vaccine NFCS
Introduction
Hong Kong created a no fault compensation for Covid-19 vaccines on 26 February 2021, effective immediately.
This scheme was created under national legislation. The Scheme details are set out in Legislative Council paper FCR(2020-21) 94 which was presented at the Finance Council meeting on 26 Feb 2021.
It is administered by Axa China Region Insurance Company Limited (AXA Hong Kong), who are a private body.
The funding for the scheme comes from National Government funds
Vaccines Covered
This NFCS covers vaccines used as part of the Government’s Covid Vaccination Programme.,
It only includes vaccines approved for emergency use. Covered Covid-19 Vaccines are ‘vaccines authorized by the Secretary for Health, under a state of public health emergency, which fulfil the criteria of safety, efficacy and quality for the purpose of vaccination programmes conducted by the Government on the advice of an advisory panel appointed by the Chief Executive in accordance with the Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599K)’
Injuries Covered
This NFCS covers both temporary and permanent injuries.
Under this NFCS only eligible injuries are covered. Potentially eligible injuries are those on one of two pre-specified lists:-
- List of Serious or Unexpected Adverse Events Following Immunization of COVID-19 Vaccines as of July 2021 (AEFI list)
- List of Adverse Events of Special Interest of COVID-19 Vaccine as of April 2021 (AESI list).
Inclusion on the list does not automatically qualify an application for compensation. The conditions on the list will be subject to a severity assessment to quantify the level of compensation.
Charges for making a claim
There is no upfront charge for making a claim under this scheme, but it requires that certification of the serious adverse event is completed by a doctor. Acceptable evidence for certification includes, but is not limited, to hospital discharge summary, certification letter by attending doctor, and medical certificates. On its own a sick leave certificate is not acceptable as a certification proof
Claimants
Under this scheme the following categories of individuals are permitted to make a claim.
- Live vaccine recipient
- The parent or legal guardian of a child or disabled adult - proof of this relationship must be included with the application form, for example a birth certificate
- The estate of a deceased vaccine recipient – the Grant of Letter of Administration on the Deceased’s estate must be included with the application form
Under this scheme there are very limited circumstances in which a legal representative could make a claim on behalf of their client, see above. Funding for legal representation is not provided by the scheme.
Losses covered
This scheme pays the following
| Live Vaccine Recipient | Dependants of Vaccine Recipient | Estate of a Deceased Vaccine Recipient |
|
Compensation payments are for general categories and are not broken down into economic and non-economic losses. |
No compensation is provided specifically for dependants | Compensation payments are for general categories and are not broken down into economic and non-economic losses. |
A Severity Assessment is used to quantify payments. It is classified into four headings:-
- Pain and Suffering
- Long Term Damage
- Disablement
- Death
| Heading | Description | Quantification |
| Pain & Suffering | Reversible sickness with physical and/or psychological trauma with no long term sequalae | Up to 10% of the maximum payment |
| Long Term Damage |
Persistent damage to the body that extends beyond a certain time frame and requires prolonged medical care, BUT does not
|
Up to 50% of the maximum payment |
| Disablement | A medical condition that affects the ability of a person to look after oneself or impacts on his earning capacity after a defined period of time. This is assessed using activities of daily living (ADL), see below | Up to 100% of the maximum payment, see below |
| Death | Death | 100% of the maximum payment |
The amount of compensation received by live vaccine recipients will depend on the severity and duration of the injury, there are examples given in the Fund Terms and Conditions. Where an applicant is suffering from a disability this will be assessed using a standardised system taken from the insurance industry which is based on the number of Activities of Daily Living (ADLs) that the applicant can perform.
| Activities of Daily Living (ADL) |
| Dressing – the ability to put on and take off clothing without assistance |
| Toileting – the ability to use the toilet, including getting on and off, without assistance |
| Mobility – the ability to get in and out of bed or a chair without assistance |
| Continence – the ability to control bowel and bladder function |
| Feeding – the ability to get food from a plate into the mouth without assistance |
| Bathing and showering – the ability to bathe and shower without assistance |
Applicants who fail to perform three or more of the ADLs will be classed as totally disabled and entitled to 100% of the maximum payment. Applicants who fail to perform one or two of the ADLs will be classed as partially disabled and entitled to 60% of the maximum payment.
Compensation under this scheme is capped, with a maximum payment that depends on the age of the injured individual at the date of the last dose of the vaccination. The maximum payments in HKD an individual can receive are:-
| Aged under 40 | Aged 40 or above | |
| Injured Vaccine Recipient | $3,000,000 | $2,500,000 |
| Deceased Vaccine Recipient | $2,500,000 | $2,000,000 |
Payments consist of a lump sum payment.
Funeral expenses are not available under this NFCS.
Compensation under this scheme calculated on an individual basis using tariffs/guidelines to assist with quantification.
Loss of earnings are not paid under this scheme.
There is no minimum claim value under this NFCS.
Time limits for claims
The scheme does not specify a time limit between vaccination and the adverse event occurring.
A claim under the scheme must be brought within 2 years of the last vaccination.
Evaluating claims – standard of proof required
Claims are evaluated by the Expert Committee who provide an assessment of whether there is causal link between the adverse event and the Covid-19 vaccination. The Expert Committee is appointed by the Director for Health. The Expert Committee have endorsed the two lists of Serious Adverse Events, the AEFI and AESI lists. The standard of proof required by the scheme is unusual in that there is a negative causation requirement. A payment will be issued if the Expert Committee cannot rule out that the injury/death was not associated with the administration of a vaccine.
Appeals and the right to litigate
The right to litigate is not affected by use of the scheme - A claimant has a free choice to use the scheme or to litigate. However, if a person who has been paid by the scheme is awarded damages in subsequent litigation there is a claw back provision for repayment of monies paid by the scheme.
There are two potential appeal mechanisms:-
- a re-review by the expert committee if the claimant is not satisfied with the decision on causation and/or
- a review of the quantum by the administrator if the sum is not considered sufficient.
Useful information and links
The scheme produces an overview of the fund including data on claims (claim numbers, payments, claim processing timeframes, etc) AEFI Fund overview
Scheme website - Indemnity Fund for Adverse Events Following Immunization with Coronavirus Disease-2019 Vaccines
Legislative Council paper FCR(2020-21) 94 which was presented at the Finance Council meeting on 26 Feb 2021