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Posted 05 August 2004 - 06:01 PM

Injury Prevention, Rehabilitation and Compensation Amendment Bill (No 3)

First Reading - Thursday 5 August 2004 - Sue Bradford

ACC - Medical Misadventure - Acupuncturists

Mr Speaker,

The key component of this Bill constitutes a significant and positive reform in the way ACC deals with medical misadventure cases, and on that basis the Green Party will be voting for it to go to Select Committee today.

For many years there have been huge problems for anyone trying to make an ACC claim under the medical misadventure provisions, as thousands of injured people can testify. On top of all those people whose claims are turned down, there are, I believe, even more who have never filed a claim because of the evident hopelessness of getting anywhere given the stringent conditions which are applied.

The present system has also created tensions and difficulties within the practice of medicine, with people like doctors seeing every claim as a potential threat to their personal and professional future. This has not been useful at a time when the health system is finally beginning to learn that it would be better if the sector could learn honestly from mistakes and slippages made, rather than putting the emphasis on allocating blame and protecting individuals from legal action.

Before I go any further with the medical misadventure and other aspects of this Bill however, I would just like to deal with the potentially controversial question of acupuncturists. One important aspect of the legislation in front of us this afternoon is that it amends the definition of ‘acupuncturist’ in terms of who can treat people under ACC.

The proposal is to extend the definition of acupuncturist to include members of the NZ Acupuncture Standards Authority (NZASA) who have a health professional qualification and either a one-year full time postgraduate qualification in acupuncture or a Level 7 Diploma in Acupuncture.

At present, only members of the NZ Register of Acupuncturists (NZRA) are eligible for ACC treatment payments, and I understand NZRA are bringing legal action against the Government because of their moves to expand the pool of professional acupuncturists eligible for ACC payments. The Green Party intends to carry out its own further investigations into this issue, and our ongoing support for the Bill is dependent on working towards an outcome in this area which we hope will be satisfactory to all concerned.

Turning now to the medical misadventure provisions of this legislation, the Green Party is, as I said earlier, delighted to see that at last there will be an end to the anomaly in which medical misadventure was the exception to the otherwise ‘no fault’ nature of the ACC scheme.

Currently cover for medical misadventure is restricted by section 32 of the 2001 IPRC Act to what is defined as medical mishap, medical error and the transmission of infection caused originally by medical misadventure.

At the moment ‘medical mishap’ is seen as an adverse consequence of treatment that is severe and rare, and we believe that this has given rise situations of serious injustice over and over again.

There are many examples, but to give just two, in District Court cases in 1998 and 2000 the Court upheld decisions to decline cover for medical mishap in cases of the severe back condition arachnoiditis caused by a myelogram dye test. ACC had relied on the incidence of arachnoiditis not being a sufficiently rare outcome of the myelogram procedure to meet the test for medical mishap to deny claimants access to income compensation.

As a result of ACC’s declining cover, backed up by the Court, people whose lives had been ruined by a genuine medical mishap were denied ACC support, and of course on top of that, were only eligible for sickness or invalids’ benefits if they didn’t have a partner earning during the relevant period.

The use of the ‘severity’ and ‘rarity’ criteria have meant the application of arbitrary and unjust decisions to many claims and potential claims, and the sooner we can bring an end to this parlous situation the better.

The second subset of medical misadventure is ‘medical error’. This is currently defined, roughly speaking, as personal injury resulting from the failure of a registered health professional or organisation to provide treatment at a standard of care and skill which could be reasonably expected in the circumstances.

There are significant difficulties with this from the point of view of injured people. The principles behind this are totally at odds with the no fault basis for the rest of the ACC scheme. Health professionals are often reluctant to cooperate in determining claims because of the possibly significant and deleterious consequences to them personally.

This concept of ‘medical error’ is markedly out of step with a sensible and structural approach to solving problems within the health system. On top of this, these types of claims can often involve massive delays of up to 9 months or more for the unfortunate individual who is trying to get help at a time when they may well be suffering significant pain and incapacity.

The proposal in this Bill to replace cover for ‘personal injury caused by medical misadventure’ to ‘personal injury caused by treatment’ from the 1st of February next year will help address most of these anomalies, and the Green Party welcomes this change.

However, within this area we do have one or two concerns that we hope might be dealt with during the process of Select Committee consideration.

First of all, there is a proposition within the Bill that will exclude from cover ‘personal injury that is solely attributable to a resource allocation decision.’

To give one example of what this might mean, it could be applied to someone who is denied ACC cover where the recurrence of metastatic cancer that is caused by delays in provision of radiation therapy treatment for a primary cancer, occurs solely because there are not enough radiation therapists or equipment to carry out the treatment in a timely manner.

Unfortunately this is a very real kind of situation in New Zealand at present, and we would like to see the Bill amended to remove this exclusion, at least for injuries which are of such severity that they currently qualify as a medical mishap - for example, causing death, hospitalisation for more than 14 days or significant disability for more than 28 days.

Secondly, we have concerns about the time limit on making decisions on claims on medical misadventure. At the moment, the maximum time limit is 9 months for the Corporation to make a decision on a claim, and this is retained in the new Bill. This time limit has been a major concern for claimants, who are kept in limbo, often with no support, for lengthy periods, and the Green Party is keen to see the Bill amended so that there will be a shorter limit on the time allowed for ACC to process claims.

Moving now briefly to one or two other features of this Bill, we welcome the amendment to provide discretion for ACC to provide entitlements in areas where it is currently not liable to do so. Current legislative restrictions mean that the Corporation is actually prevented from granting discretionary entitlements even when it would clearly be beneficial to both the claimant and ACC to do so. Examples include the three year limit placed on vocational rehabilitation, and the 28 day limit on provision of attendant care outside New Zealand.

However and quite strangely, the new Bill takes away with the same hand that gives, with its proposal to exclude such discretionary decisions from the review and appeal process. The Green Party will oppose any of ACC’s decisions being ‘protected’ from an application for review or an appeal by a claimant, and this is especially important given there are already very limited rights of review in this area.

Finally, there are a number of other fairly minor reforms to ACC in this Bill that we do support, for example in amendments relating to cover for mental injury due to sexual abuse prior to 1 July 1992, in changes to the definition of earnings as an employee, and an amendment to the definition of ‘accident’ which corrects a rather strange anomaly resulting from certain court decisions.

This is a Bill whose overarching purpose is well overdue, and I hope the Select Committee process will allow us to improve it where it hasn’t quite got things right. I congratulate the Minister on her persistence in bringing about long needed changes to the way ACC deals with medical misadventure, and I do look forward to hearing what submitters have to say on all this.

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