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MEDIA
In penning this piece, my intention is not to advocate for or against medicinal cannabis. However, it is a legal form of medical treatment, and insurance schemes across the country need to recognise it as such, writes Greg Spinda.
While medicinal cannabis is now lawful in all Australian jurisdictions, its prescription and use are subject to a tightly regulated framework. Authorised medical practitioners must comply with defined approval pathways in order to access medicinal cannabis; though there are some questionable practices. The current body of evidence regarding the efficacy and use of medicinal cannabis remains constrained, with further studies continuing to inform its clinical application.
Medicinal cannabis mostly comes in the form of the two most recognised cannabinoids in the cannabis plant, being tetrahydrocannabinol (THC) or cannabidiol (CBD). In simple terms, THC is what makes people high, and CBD has no psychotropic effects but is the component most researched for the management of seizures and pain. Medicinal cannabis products vary according to whether they are pure THC, CBD, or a combination.
The Therapeutic Goods Administration (TGA) indicates that access to medicinal cannabis may be supported in certain cases, including: management of epilepsy, multiple sclerosis, chronic non-cancer pain, palliative care, and chemotherapy-induced nausea and vomiting. However, more research is needed and is ongoing.
In terms of the use of medicinal cannabis for people living with chronic pain, it would seem that there is a disconnect between the TGA, government, Faculty of Pain Medicine, individual pain specialists, and the personal experience of individuals living with pain. While the Faculty of Pain Medicine is not supportive of the general use of medicinal cannabis to manage pain outside of clinical trials, there was a study undertaken by Pain Australia in 2021 of 454 of its members, which identified 85 per cent supported the use of medicinal cannabis for pain management.
As for personal experiences, these are obviously not scientifically valid, but I do think they form part of the overall consideration. Over the last five years, I have seen a significant increase in the number of clients who are being prescribed medicinal cannabis. The overwhelming majority of those clients report improvement in their pain, reduction of the use of other medications (including opioids), improvement in their mood, sleep, and appetite. The evidence I have obtained from their general practitioners and pain specialists has overwhelmingly been the utility of medicinal cannabis as part of their treatment regimen.
Funding through compensation insurance schemes
The judicial consideration of funding for medicinal cannabis in various Queensland insurance schemes has been limited. These include:
The way the legal system across Australia deals with medicinal cannabis and insurance claims is that there is an acknowledgement of its place in rehabilitation, and therefore, in appropriate circumstances, it will be funded. The NSW state insurance regulatory authority, for example, provides a Better Practice Guide in medication management in the NSW personal injury schemes, which specifically mentions the funding of medicinal cannabis (considered a high-risk medication).
In the rather interesting decision of French v Harwood Slipway Pty Ltd & others, the NSW Personal Injury Commission carefully assessed the specific medical evidence as well as the general literature around the use of medicinal cannabis for pain. The commission accepted that it was reasonably necessary for Mr French to be funded medicinal cannabis in circumstances where both his evidence and various treating specialist evidence identified substantial benefit and utility of medicinal cannabis. The commission considered that any risks associated with addiction can be adequately managed by the treating team, who were aware that Mr French had a history of substance abuse. Further, the position paper of the Faculty of Pain Medicine of the Australian and New Zealand College of Anesthetists was not considered authoritative in circumstances where more recent research had been relied on in the case, together with the significant weight the commission gave to the benefit that medicinal cannabis provided to Mr French.
The NSW Workers Compensation Commission likewise has been willing to approve funding for medicinal cannabis where it has been demonstrated that it provides therapeutic benefits such as: reduction in other medications (especially opioids), improves sleep, assists in management of pain, and where there are no significant side effects.
WorkCover Queensland, in my experience, has taken a strict approach of not agreeing to fund medicinal cannabis. There is nothing in the legislation that supports this position. Even WorkCover’s website acknowledges that emerging forms of treatment and rehabilitation can (and possibly will) be considered for funding in certain, rather prescriptive, circumstances.
In the Queensland Compulsory Third Party (CTP) scheme, I have had multiple instances of medicinal cannabis being funded as a form of treatment. That is the correct approach given the broad interpretation of rehabilitation obligations of CTP insurers. CTP insurers require (reasonably so) cogent evidence that medicinal cannabis is reasonable and appropriate, other treatment forms have been attempted unsuccessfully, and then proof that the use of medicinal cannabis has actually led to tangible benefit for the injured person. That tangible benefit could include: reduction in other medications (often high-level opiates), an improvement in function or quality of life, and minimal side effects.
Stewart v MNHHS – does this change the landscape?
I think the High Court’s decision in this seminal case affirms the fundamental principles relating to the reasonableness of damages in personal injury claims. While the case dealt specifically with the reasonableness of care being provided in a home as opposed to an aged-care facility, it does reaffirm the fundamental concept of compensation law being that the award of damages must consider what is reasonably required to restore the position of the plaintiff had they not been injured. When dealing specifically with the use of particular treatment methodologies or medications, that would include improving or maintaining the individual’s function and/or quality of life. If medicinal cannabis is able to do so, there is no legal basis upon which an award of damages cannot be made for its use.
Driving and medicinal cannabis
As it currently stands in Queensland, there is no legal amount of THC permitted in a driver’s system. However, Queensland is currently reviewing this to potentially align with a proposal in NSW to exempt prescribed medicinal cannabis users from driving under a certain prescribed threshold. The issue here involves impairment versus testing. That is, medicinal cannabis users may show THC in their system through a roadside drug test but not actually be impaired, because THC can present on such testing for many days after last use when the person is no longer actually affected.
I understand part of WorkCover’s position on the funding of medicinal cannabis relates to the obligations of WorkCover under the legislation in Queensland to focus on returning injured workers to work. Perhaps if Queensland reviews the treatment of medicinal cannabis uses and driving laws, this would allay some of their concerns.
What will be even more interesting is when Queensland introduces fully automated vehicle operation on roads. Five years ago, this probably would have led to eye rolls and comments about how ridiculous a proposition I am making. Today, I think this is very much getting closer to reality and is a valid question. How would drink and drug driving laws interact with automated vehicle usage?
My intention here is not to advocate for or against medicinal cannabis. It is, however, a legal form of medical treatment, and Queensland insurance schemes need to acknowledge it as much. This conversation has to remove personal bias.
The question for an insurance scheme funding medicinal cannabis is not one of universal acceptance by the medical profession (such is as rare as a universal position on certain legal principles). The legal principles dealing with rehabilitation and damages in Queensland are very well established and are interpreted broadly. Therefore, they do encompass, in appropriate circumstances, the funding of medicinal cannabis for injured people.
Greg Spinda is a partner at Travis Schultz & Partners.
