Vietnam Covid Vaccine NFCS
Vietnam introduced a national no-fault compensation scheme for vaccine injuries in 2016 through the enacting of the Decree No. 104/2016/NĐ-CP (Decree on Vaccination). There is no specific start date for COVID-19, but as the scheme covers ‘vaccinations against epidemics’, it may be assumed it has covered COVID-19 vaccines since the vaccination programme against COVID-19 began in the country in March 2021 (see here).
The scheme is administered by the Provincial Department of Health. (Decree No. 104/2016/NĐ-CP, Articles 17-20; see also Harryandi, Bratadana and Sandyawan 2021).
The funding for the scheme comes from central government (Decree No. 104/2016/NĐ-CP, Article 14.2).
This NFCS covers vaccines in the expanded national immunization programme and vaccines against epidemics (Decree No. 104/2016/NĐ-CP, Article 15.1).
It is not specified whether the scheme includes both vaccines approved for emergency use and standard approvals.
This NFCS only covers permanent injuries.
Under this NFCS only eligible injuries are covered. Eligible injuries are serious vaccine injuries that result in disability and those resulting in the death of the vaccinated person (Decree No. 104/2016/NĐ-CP, Article 15.2).
Charges for making a claim
It is not specified whether there are any charges for making a claim under this scheme.
Under this scheme the following categories of individuals are permitted to make a claim:
- Vaccinated person;
- Relatives of a vaccinated person.
It is not known whether under this scheme the claimant is allowed to nominate a legal representative to make their claim.
Funding for legal representation is not specifically provided by the scheme.
Note that while Article 17 of the Decree No. 104/2016/NĐ-CP mentions vaccinated people and their relatives as potential claimants, Article 16 of the same Decree also provides for compensation for the caregiver of an injured vaccinated person, that is ‘a person who has to take an unpaid leave to take care of a vaccinated person’. It is not clear whether a caregiver who is not a relative of the vaccinated person may directly apply for compensation.
This scheme pays the following:
Live vaccine recipient
Dependants of vaccine recipient
Relatives of a deceased vaccine recipient
Only eligible economic losses are compensated*
No compensation is specifically provided for dependants
Both eligible economic and eligible non-economic losses are compensated
*One of the compensated items in cases of injury resulting in disability (a fixed amount equal to 30 months of base salary), however, does not specifically refer to economic or non-economic losses.
It is not clear whether payments consist of a lump sum payment, periodic payments, or a mixture of periodic payments and a lump sum payment.
Under this NFCS, the following compensation is available (see Decree No. 104/2016/NĐ-CP, Article 16):
For vaccine injuries causing disability:
- Fixed amount equal to 30 months of base salary;
- Medical expenses;
- Compensation for loss of or reduced income (including caregiver compensation – see below).
For vaccine injuries resulting in the death of the vaccinated person:
- Funeral expenses (10 months base salary prescribed by the State);
- Medical expenses incurred before the death;
- Mental suffering (VND 100 million for the relatives of a deceased vaccinated person);
- Compensation for loss of or reduced income.
Medical expenses following injury are reimbursed in accordance with health insurance laws if the vaccinated person presents a health insurance card when using medical services. If the vaccinated person does not have a health insurance card when using medical services, the costs are covered in accordance to relevant regulations on medical service prices applied to public health facilities (see Decree No. 104/2016/NĐ-CP, Article 16.3).
Compensation for loss of income or reduced income covers compensation for caregivers who had to take an unpaid leave to take care of a vaccinated person. This is calculated as a daily amount equal to a fraction of the caregiver’s salary (which should correspond to a caregiver’s monthly social insurance contribution – see Decree No. 104/2016/NĐ-CP, Article 16.4.a), which is then multiplied by the number of days of unpaid leave.
If the salary of the caregiver cannot be determined, the region-based minimum salary in the area where he/she lives at the compensation time is used as a basis of the calculation (see Decree No. 104/2016/NĐ-CP, Article 16.4.b).
Compensation for lost or reduced income is also available for the injured vaccinated person with regards to the income that is lost or reduced during the treatment period (see Decree No. 104/2016/NĐ-CP, Article 16.4.c).
Time limits for claims
The scheme does not seem to specify a time limit between vaccination and the adverse event occurring or any time limits on when a claim can be brought.
Evaluating claims – standard of proof required
The Provincial Department of Health has 15 working days from the receipt of the claim to complete its investigation on the cause and seriousness of injury, send a notification to the claimant and submit a report to the Ministry of Health (see Decree No. 104/2016/NĐ-CP, Article 16.4.b).
The decision of the Provincial Department of Health on whether to grant compensation is based on the determination on causality of a specialist body, the Expert Advisory Council (Harryandi, Bratadana and Sandyawan 2021, 244).
The standard of proof required by the Provincial Department of Health does not appear to be further specified in the Decree.
Appeals and the right to litigate
It is not known whether the right to litigate is affected by the existence of this NFCS.
There seems to be an external review system to review the decisions of the Provincial Department of Health, whereby a claimant may start judicial proceedings and file a lawsuit to challenge the decision of the Department (see Harryandi, Bratadana and Sandyawan 2021, 244).
Note that Article 20 of the Decree No. 104/2016/NĐ-CP also provides for a ‘reimbursement’ procedure, in which the Provincial Department of Health issues a ‘request for reimbursement’ to be sent to an ‘organization or individual at fault’. There does not seem to be a specific definition of ‘organization or individual at fault’ in the Decree.
Useful information and links
It is not known whether the scheme produces an annual report including data on claims & financial performance (claim numbers, payments, claim processing timeframes, administrative costs, etc).
Links to legislation:
Decree No. 104/2016/NĐ-CP: https://vanbanphapluat.co/decree-104-2016-nd-cp-on-vaccination (English Translation by LawSoft).
Alexander Harryandi, Made Diyosena Bratadana, Stanislaus Demokrasi Sandyawan (2021). ‘Government Liability to Adverse Event Following COVID-19 Vaccine Immunization in Indonesia The Right Form of Access to Justice?’, in Proceedings of the 2nd International Conference on Law and Human Rights 2021 (ICLHR 2021). DOI: 10.2991/assehr.k.211112.031. Available at: https://www.atlantis-press.com/proceedings/iclhr-21/125963806.
T. B. A. Nguyen, “No-Fault Versus Strict Liability Compensation Systems in Medical Malpractice Law Advances in Social Science, Education and Humanities Research, volume 592 in Vietnam in Comparison with Belgium, France, and England,” Asian Journal of Law and Economics, vol. 10, no. 1, pp. 1-15, 2019, doi: 10.1515/ajle-2018-000. Available at: https://www.degruyter.com/document/doi/10.1515/ajle-2018-0004/html.