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

The National Party has indicated that it will be very supportive during the Committee stage, but looking at the Supplementary Order Paper that the Minister has provided for this process, we continue to have a number of questions about this legislation.

Part 1 basically involves substantive amendments to the principal Act. The first question that the National Party has is why has the Minister gone to the trouble of putting a Supplementary Order Paper out, when changing clause 3, “Interpretation”, is basically rewriting section 6(1) of the principal Act and restating a lot of the original information that was already in the legislation? If one looks at it, the two clauses are more or less identical word for word. I would like the Minister to take a call and explain why there is basically no substantive difference, but Parliament has gone to the trouble and additional cost of introducing more paper into this process when, in fact, it may not be necessary.

We also have a suggestion when it comes to clause 6, in which new section 19, “Key terms in this Part”, is substituted. We think it is better to clarify that in this part of the bill we are talking about the principal Act. Although it is stated under new section 19, we believe that under the heading, “Key terms in this Part”, when the bill refers to changes to sections 25 and 27 it should be clarified that those are, of course, sections in the original Act and are not part of this bill.

But probably more interesting to listeners in the discussion on Part 1, and I suppose it comes back to one of the aims of this bill, is the provision to redefine medical misadventure and medical mishap and to start to talk about treatment injuries. One of the problems that many New Zealanders had, if they had a wrong diagnosis or some kind of treatment went wrong, is that they had to prove fault on behalf of the medic and go through quite an extensive process before they were able to get accident compensation.

This bill brings medical misadventure and personal injury caused by medical mishap in line with other injuries, such as falling off a ladder and other basic injuries that New Zealanders might face, so that they do not have to prove fault before they can get that sort of cover. But if one looks at the definition of treatment, it can be the giving of treatment, the diagnosis of a person’s medical condition, or a decision on the treatment to be provided, including a decision not to provide treatment. I would like the Minister to take a call to explain to us whether, in the decision on treatment or lack of treatment, we are talking about the medics or, in fact, the individual. We have had some high profile cases in the past where some individuals have opted not to have treatment in certain circumstances, and that has led to a deterioration of their condition. So I am unsure whether it is the doctor making that decision or, in fact, if an individual takes that decision, whether he or she would still be covered.

Clause 33(1)(d) states that a treatment injury can be the result of “a failure to provide treatment, or to provide treatment in a timely manner:”. I would like the Minister to explain what happens to a New Zealander who has been on a waiting list for cancer treatment, or any other kind of treatment, and while that person has been waiting on a hospital waiting list there has been a deterioration in his or her condition, whether we will see the State further in the gun for keeping people on waiting lists when that person’s condition can deteriorate. I do not believe that significant costings have been done on this bill. The Minister might like to take a call to talk about what costings have been done. If one looks at clause 33(1)(d), “failure to provide treatment, or to provide treatment in a timely manner:”, the State might run into real difficulty if, in fact, the waiting lists are not addressed. I suppose the Government is on notice to try to make huge improvements there.

I want to raise some very serious issues, and I hope that the Minister in the chair, the Hon Taito Phillip Field, will take a call with regard to the recognition of another acupuncture treatment provider. When this bill is passed by Parliament, the New Zealand Acupuncture Standards Authority Inc. will be recognised as a treatment provider for claims by the Accident Compensation Corporation (ACC) alongside the New Zealand Register of Acupuncturists, the first to be recognised as a treatment provider before the 1990s. A High Court case challenging the process of the authority being recognised as a treatment provider was mounted, but a decision was made to drop the case because Parliament was going to pass this bill to recognise it anyway. So I would like the Minister in the chair to take a call to explain why, when there was a High Court challenge to the process, the Government insisted on debating and passing this bill to recognise the authority as an acupuncture provider.

But there is a more serious issue. Two other groups have been challenging the process whereby acupuncturist organisations are recognised by ACC as having treatment provider status. They are the New Zealand Traditional Chinese Medical Practitioners group and the New Zealand Chinese Acupuncture Association and Register Inc.

Before 1990 ACC decided to recognise the New Zealand Register of Acupuncturists Inc. as a treatment provider. The two other groups came before the Regulations Review Committee in 1990 and asked the corporation to publicise the process of recognising those treatment providers, but nothing has happened, even though the select committee concurred. Then 7 years ago, in 1998, the same groups had to again complain to the Regulations Review Committee, of which I am a member. Once again, the select committee found the ACC process wanting in recognising those treatment providers.

In 2003 the Minister, the Hon Ruth Dyson, wrote to the groups and said that it was inappropriate and a waste of time for those groups to apply to become treatment providers. At the same time the corporation was considering the recognition of the New Zealand Acupuncture Standards Authority Inc. I must say I become quite cynical in wondering whether the reason the two acupuncturist groups still have the doors closed on them is that they happen to be headed by New Zealand Chinese whose efforts in those processes have been frustrated. [Interruption]

The Labour member may find the whole thing funny, and laugh during this debate, but I am talking about a very serious issue. The two groups have been trying to get recognition as treatment providers since 1990, and I am wondering whether the fact that they are Chinese New Zealanders is the reason that the process has been frustrated for so long.

The Minister in her latest letter to the groups in July 2004 said that this bill would make an amendment to the process of recognising future treatment providers, and that the process would be by regulation rather than having to go through legislation, which invariably takes a long time. However, I read through the legislation quickly and did not quite see how that process is being incorporated in it. I therefore am taking no risk, and have tabled an amendment to the definition.

I just want to take a brief call in relation to a point raised by the honourable member Katherine Rich, which I think is quite important to be clarified. It relates to the amendment to clause 3. The reason for that amendment is that it is to allow movement of definitions alone or in groups, because whereas some groups are statutorily recognised, others are not. So this amendment provides for administration efficiency in the movement of definitions to regulations, and I hope that clarifies what I think is a very good point raised by that member.

I rise in support of Part 1. Yesterday New Zealand First indicated that we would be supporting this. When we had a look at the term “treatment injury”, we were very pleased to see that it had been simplified in this bill. Previously, the definitions in section 32 of the Act were very complicated and extremely difficult for claimants to negotiate their way around. Many could not, and consequently they did not even bother to.

We were pleased to see, too, that the treatment has now been defined as clearly as possible. We are also pleased to see in this bill that section 32(6), in clause 13, includes trials. We know that there are many advances in medicine today, and notice has to be taken of people who willingly undergo trials so that the rest of our people can be cured of some disease by some new medicine or treatment that has been developed. Quite often people innocently go along to these trials, and have very high hopes, but sometimes the outcome is not exactly what they wanted. So it is really good to see that in there.

New Zealand First will be very interested in the interpretation of section 33, “Treatment”, in clause 13. Subsection (1)(d) states that treatment includes “a failure to provide treatment, or to provide treatment in a timely manner:”. We know that the provision of treatment in a timely manner is becoming more and more of a challenge in today’s hospital system. I am sure we have all read the article in today’s New Zealand Herald: “Just how sick do you have to be to get a hospital bed?”. We know that people have problems that have a significant effect on their daily lives, and they cannot get the required treatment in a timely manner. So of course we are very interested in this provision.

We are aware that new section 32(2)(c) excludes “personal injury that is solely attributable to a resource allocation decision:”. We want to see the Government taking the next step to investigate how it can remove this unfair resource exemption clause, as that does need to occur. We believe that any injury caused by a failure of resources should be considered to be in the same category as a treatment injury and should also be covered under this legislation. There was a suggestion yesterday from the Green member Sue Kedgley that her party would move an amendment to cover this concern that we have. I am waiting to see the amendment appear on the Table; yesterday we indicated we would support it, and we are looking forward to doing that.

We were pleased yesterday that the Minister reassured members that the acupuncture profession is working together to have one scope of practice under the Health Practitioners Competence Assurance Act. We look forward to seeing that occur, because we cannot afford to have one group, the acupuncturists, with two different scopes of practice. That cannot be allowed to occur. We look forward to having a result there, and will be following that very carefully. There was a suggestion from a submitter to the select committee that a time limit be provided on the resource allocation clause, so that the health system could gear itself up to meet the resource standards recommended by the experts as being reasonable. We look forward to some action on that area later in the debate, or we invite the Minister to comment.

We were most interested to see that under new section 33(1)(e) the consent of a person to undergo treatment is required. Given the debate currently raging about electroconvulsive therapy, and the significant number of people who did not consent to that form of treatment who experienced significant difficulties afterwards, we wonder whether they will be able to undergo some of the processes for compensation provided in this bill.

I would like to pick up on a point made by my very excellent colleague Katherine Rich in regard to costs. National has some concerns around the cost implications of this bill, and Business New Zealand in its submission pointed out the omission from the explanatory note of any statement of likely cost increases arising from compliance in regard to increased administration and levy costs and any other expenses that may become payable.

When we look “at any other expenses that may become payable”, we need to look at section 32, “Treatment injury” inserted by clause 13. That provision has been alluded to by other speakers. Section 33, “Treatment” states: “(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—”. I will skip paragraphs (a) to (f). Paragraph (g) states: “the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis …”. Some people make a conscious decision to change their physical appearance, and when they make that conscious decision they are fully aware of the risks associated with it. They may decide they want a breast implant, so they are fully aware of the risks associated with having a breast implant. Paragraph (g) further states: “(except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear),”. In the terms of a breast, one would ask the question what is fair wear and tear?

💬 Darren Hughes: You would know!

That might be more in the member’s expertise. Paragraph (g) continues, after it talks about an intervening act or by fair wear and tear: “whether at the time of giving treatment or subsequently:” People need to give some thought to that.

So a person actually makes a decision to have a breast implant, to change the physical appearance. But, of course, it could be a male wanting an implant to enhance his pecs. One would ask what would be fair wear and tear and whether he should be compensated for failure of those pecs to perform. So people who have consciously decided to have implants, being aware of the liabilities and risks involved, will be provided with accident compensation cover for failure of those implants to perform. Why would we do that? Think of the costs associated!

Business New Zealand quite rightly pointed out that the work on understanding the full cost implications of what is being promoted in the bill has not necessarily been done. Why would we give accident compensation cover to people who have consciously made decisions to change their appearance, then expect the Government to compensate them for the failure of any body enhancements that have been sought? Tattooing is another example. There can be downsides to that. There are risks associated with that.

💬 Katherine Rich: Botox.

Yes, Botox. There is a full range—

💬 Katherine Rich: Sex change operations.

Yes, that is another one. Are we to start covering people who have made conscious decisions for any failure in association with those decisions? Those costs would be significant, I expect, particularly in the case of a breast implant failure. I understand that some of those failures have lifelong adverse effects, and that they incur a substantial cost.

If we refer back to subsection (1), we see that the term “treatment” includes the giving of treatment and a diagnosis of a person’s medical condition. Just failure to properly diagnose a condition means that that person may be liable for some accident compensation cover. How far does that go? It includes a decision on the treatment to be provided. If there is an error in that, will that be able to be claimed for, as well?

I would like to carry on from where the National Party member finished. The costs are a grave worry, and I highlighted that point in the first reading debate and also in the second reading debate yesterday. It is becoming quite a pattern that every time we arrive at the Committee stage of any Government bill we seem to have a Supplementary Order Paper that introduces all sorts of new things. There is no opportunity for public scrutiny or ability for the select committee to look carefully through the new amendments that might arise, and goodness knows what they might be.

Supplementary Order Paper 348 inserts a proposed new clause 26A, adding subsection (4) to section 167 of the principal Act. The subsection states: “The funds in the Employers’ Account must also be applied to meet the costs of entitlements …”. The Supplementary Order Paper also inserts a new clause 28A. It adds subsection (6) to section 197, which states: The funds in the Residual Claims Account must also be applied to meet the costs of entitlements for personal injury …”. Further, new clause 29A adds subsection (4) to section 201, which states: “The funds in the Self-Employed Work Account must also be applied to meet the costs of entitlements for personal injury …”. The Health Committee should have been given the opportunity to scrutinise those amendments to consider their implications. Instead, they will be rushed through tonight. I certainly will be opposing them on behalf of the ACT party, purely on principle, because we have not been able to scrutinise them properly. Also, the public has not been given the opportunity to see them.

The costs of this bill are a big unknown. There is a big question mark over what they will be. There is likely to be an increase in the costs of the scheme. In fact, we were given information from the Department of Labour estimating a transitional cost of $12 million and an annual cost increase of $8.60 million. The department broke that figure down. Accident Compensation Corporation (ACC) actuaries estimated that the corporation would accept around 1,000 additional treatment injury claims each year, with an average fully funded cost of approximately $9,000 per claim. That was in the evidence they gave us. But we see when we look a bit further down the page that the Department of Labour background report had outlined the fact that it was very difficult to obtain data upon which to base claim number predictions and their costings. So they are saying on the one hand that we will have this many extra claims and it will cost X amount of dollars with a total cost of $8.7 million a year, and on the other hand that really they have no idea and that this is in fact guesswork. This is something we should be very worried about.

So the shortage of information about costs should be noted. It is also noted that the scheme is not funded in entirely the same way as other ACC accounts. That is where I am quite concerned about proposed new clauses 26A, 28A, and 29A on the Supplementary Order Paper. At the moment medical misadventure is dependent on levy income from the earners account, with just under half coming from the non-earners account—that is, Parliament’s appropriation. There are likely to be calls to reform the funding arrangements in the future, and I think that those should be highlighted, too. If the treatment injury fund is to become more closely aligned with other accounts in terms of funding—and I think the indications might well be there on the Supplementary Order Paper, but they are something that none of us has had the opportunity to look at and investigate properly—then we should expect levies on health professionals to increase in the future. I think that is most likely to happen, despite the fact that the Minister has said on many occasions that there was absolutely no intention to levy health professionals more to cover the increased costs. The Minister also said that the earner and non-earner accounts will be increased to cover the costs.

So quite where the money—that unknown figure—will come from we do not know. We are really having a great deal of difficulty estimating how this whole thing will be funded. The taxpayer should be very concerned about that. We are just expected to take the Minister’s word for it that none of those things will happen. The bill is also quiet on compliance costs, and several times during the process many of us on this side of the Chamber asked for a regulatory impact statement. The Minister said it would be coming. We have asked for it, but we still have not seen it. We are expected to just pass this bill without having access to any of that very important information one would expect to have with any bill that will see an increase of costs because of taxpayer funding. Either the regulatory impact statement has been done, and it is too scary to show anybody, or it has not been done.

At this stage I want to talk about the clause that has been mentioned by previous speakers with regard to resource allocation, or the lack of resource allocation, and the fact that such problems cannot be used as part of the definition of an injury caused by treatment. I want to clarify that matter, because there are some important aspects to it. The Accident Compensation Corporation (ACC) covers unexpected consequences. It does not cover consequences that are the result of deliberate delays. Therefore, ACC is saying that it is not responsible for the health funding and treatment priorities of the Government of the day.

However, that does not leave patients with no redress. The question was asked as to whether it left health providers—and in most cases they would probably be district health boards—open to litigation. It certainly seems clear that where claims for personal injury caused by treatment, as proposed in the bill, are not covered because the personal injury is solely due—and the key words here are “solely due”—to a resource allocation decision, the maker of that decision is potentially exposed to litigation in respect of that decision. That may well include district health boards. So I guess the point I am making here is that that provision does not leave clients, or patients, with no redress if they can prove that their condition has deteriorated because of a resource allocation issue. It just means that the accident compensation legislation is not the mechanism that they are able to use.

I want to reiterate the point I made earlier that the word “solely” is very important in that context. If an injury is caused by both a resource allocation issue and a clinical action together, then a patient may have a case to make with the ACC. An example we were given was of a patient, for instance, being mistakenly assessed as having 15 points on a waiting list, instead of 50 points in a booking system, and as a result being given the wrong priority for treatment. Because of the clinical error that goes along with that priority, that patient may well be able to make a case to the ACC for his or her costs to be covered. However, the availability of resources is not always reliant completely on policy. For instance, we have known of staffing shortages that have been beyond even the control of the Government of the day. Sometimes there are worldwide shortages in particular specialities. Even if the funding is available, the ability to procure the appropriate specialist to treat somebody is just impossible. Under those circumstances, the corporation does not want to be held accountable for those kinds of things. I guess a case could be made that poor planning within the nation over a long period of time might have contributed to the shortage, but it is a predictable delay.

I want to make that point very clear, because I think that we have been working under the mistaken belief that people who suffer injury through a resource allocation problem have no recourse at all, and that is definitely not true. They certainly have recourse, although it is not under this legislation.

I shall give a brief speech to introduce two amendments the Green Party has tabled. As we said in our second reading speech, in general we support this bill and we are very pleased with its provisions. There are just two issues that we would like to see amended.

We have an amendment to section 32(2)(c), in clause 13, which at present excludes “personal injury that is solely attributable to a resource allocation decision:” from the definition of “treatment injury” and, therefore, from cover and compensation under the Act. Our amendment will allow an injury caused by failure to treat a person, for whatever reason—including the lack of a resource to treat the person—to be considered as a treatment injury and be covered by accident compensation. We believe that injury caused by the failure to treat a person, for whatever reason, should be considered as a treatment injury and be covered by the scheme. We think it is unfair and, indeed, inequitable that someone who develops an injury because he or she has not been treated properly by a medical professional is covered by the bill, but someone who becomes ill because his or her treatment has been delayed because of resource shortages is not. That seems to us to be unfair.

To give an example of what that could mean, a person who developed cancer because of treatment delays caused by the failure to diagnose a primary cancer would be covered under the bill, but a patient who developed cancer because appropriate treatment was unavailable due to a shortage, for example, of radiation therapists would not be covered. Similarly, a person who became ill in an isolated rural area and developed serious complications may have accident compensation cover if the air ambulance was not able to locate that person. However, if the complications developed solely because of delays in despatching an air ambulance because none were available, then that person would be denied that cover. That seems to us to be unfair and inequitable. Because we are making progress in this legislation in making medical misadventure claims fair and able to be accessed by all, we want to see that particular injustice also eliminated from the bill.

We have another amendment, a new clause 13A, that addresses the discrepancies in the bill relating to lump-sum compensation. Under the current principal Act, claimants who have cover for mental injury, for work-related gradual process, disease, or infection injury, or for medical misadventure injury, are excluded from lump-sum compensation eligibility if the last causative event—as it is called—for their injury occurred before 1 April 2002, even if their date of injury is after 1 April 2002. That excludes applicants who have injuries with significant latency periods from eligibility for lump-sum compensation. Our amendment seeks to provide consistency and fairness to the lump-sum eligibility provisions, so that all claimants whose date of injury is on or after 1 April 2002 are eligible to receive lump-sum compensation, provided that they meet the impairment threshold set out in the principal Act.

Frankly, we think it is unfair that anyone is excluded simply because his or her injury happened before a particular, and, indeed, arbitrary, date. Anyone who was injured before 2002 is excluded under this bill. That seems to us to be utterly unfair. But that is a minor amendment, which simply clarifies the situation for people who suffered injuries after 1 April 2002.

As I have already said, we will not be putting up an amendment, as we had intended to do, about the acupuncture provisions in the bill, because we were assured by the Minister yesterday that there is agreement amongst acupuncturists now. Apparently, they have reached agreement about a scope of practice.

Thank you, Mr Chairman, for the opportunity to speak on Part 1 of this Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). The National Party is supporting this bill because of the gross unfairness and problems that occur with medical mishap and error. The situation was a little bit like a lottery in that the “rare and severe” provisions relate to injuries that occur on less than 1 percent of occasions, according to literature around the world. It varied quite a lot, and resulted in individuals having to prove that there was a problem. That is, obviously, inconsistent with the no-fault system that parties in New Zealand generally have accepted as being appropriate.

But, clearly, what we in the National Party are worried about is the absolute dearth of concern by the Labour Government about costs. There was not even an impact statement, and when the Government did finally come out with it, it was just a stab. When one looks at clauses 10 and 13, one sees much evidence of why that abandonment by the Labour Government of the reality of the costs is absolutely relevant.

Firstly, let us look at section 32(7), inserted by clause 13, which states: “If a person (person A) suffers an infection that is a personal injury caused by treatment injury, cover for that personal injury extends to—(a) person A’s spouse, if person A has passed the infection on directly to the spouse: (b) person A’s child, if person A has passed the infection on directly to the child: (c) any other third party, if person A has passed the infection on directly to that third party:”. It looks almost like an infinite chain of events. Say a methicillin-resistant infection were passed on around the community; the cost of sorting that out could be immense, and certainly does not tie in, in any way, with the cost estimations by the Department of Labour, which has calculated that under the bill costs will increase by $8.69 million annually, and that there will be a one-off transitional cost of $12 million. Once again, it is a case of the Labour Government just not facing reality when it comes to true pricing.

We go on to new section 33(1), inserted by clause 13, which states: “For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—… (d) a failure to provide treatment, or to provide treatment in a timely manner:”. I think it was Barbara Stewart who pointed out that we saw this morning in the New Zealand Herald a damning indictment of this Labour Government, headed “Just how sick do you have to be to get a hospital bed?”. We heard Labour talk throughout the 1990s of blitzing the waiting lists, of transparency and accountability. Yet what did it do in 2003? It took 25,000 people off the waiting list. What did it do on 1 April this year?

💬 Darren Hughes: 40 percent more funding.

It took 2,000 people off the waiting list at the Counties Manukau District Health Board and sent them back to the care of their general practitioner, to live a life of uncertainty, in pain. I heard Darren Hughes say “40 percent more funding.” That is the problem. The Government puts all this extra money in, but with no result. There is no increase in outcomes whatsoever. In fact, it is even worse than that. That is the very nub of the problem. The Department of Labour and the Government have estimated the cost of this bill at $8.69 million annually, and that just is not realistic. I would like the Minister in the chair, David Cunliffe, to give us a true reality check of what is realistic.

I am not sure whether I can persuade the Green member and the New Zealand First member to have less confidence in the assurance given by the Minister, the Hon Ruth Dyson, that the acupuncture sector will come together and start the self-regulatory process, without the Government making some specific commitment to ensure that an establishment council will be set up. It has gone down that path before, and has not come up with anything. In the meantime I would like the Government and all parties to consider accepting my Supplementary Order Paper, which states that any treatment providers that apply for that recognition after due process, with the final approval signed off by the Minister, can have their status recognised through regulation, rather than having to wait for another appropriate piece of legislation, which is taking a long time.

The reason I make that plea is that two of the potential applicants for recognition as treatment providers, the New Zealand Chinese Acupuncture Association and Register, and New Zealand Traditional Chinese Medical Practitioners Inc, have been waiting and fighting the battle for the last 15 years.

My confidence in the process is further lessened by reading this letter from the Hon Ruth Dyson to the New Zealand Chinese Acupuncture Association and Register, which raised the question about membership of the New Zealand Acupuncture Standards Authority, which this legislation seeks to recognise as the treatment provider. The question was whether their membership did cover 60 percent of the New Zealand acupuncture community. The Minister’s reply suggested that the questioner approach the New Zealand Acupuncture Standards Authority directly and request that it publish its membership.

One would think that if due process had been completed it would be very simple for the Minister to reply, assuring the questioner that the applicant had membership that covered 60 percent of the New Zealand acupuncture community. I hope that it is not about one standard for the New Zealand - European dominated organisation, and a different standard that applies to an organisation that is dominated by Chinese - New Zealand acupuncturists. Otherwise, my confidence in the Minister would be shattered.

I hope the various political parties will look at my amendment and assure those two applicants that, after 15 years, if they are being treated fairly and going through due process, they can have recognition provided by regulation.

Sitting suspended from 6 p.m. to 7.30 p.m.

I am really pleased that the Hon Ruth Dyson is now in the chair, because I know that the Minister is of a mind that the future recognition of treatment providers who have gone through due process and assessment by the Accident Compensation Corporation can be recognised through regulation, rather than wait through a lengthy process for the appropriate legislation to accompany that.

I read in a letter that the Minister specified that she thought this bill would have accomplished that, but I have read through the bill and I could not get any indication that that may be the case. That is why I am setting out a Supplementary Order Paper—to ensure that that process can be achieved. It would be very reassuring if the Minister could take a call to assure me that this bill can do that, because I cannot see it. If the Minister can assure me of that, then I am sure that other political parties who have now indicated to me their support for this Supplementary Order Paper can take the appropriate action.

As I said, two acupuncturist organisations have been fighting the process for the last 15 years, and once they are allowed to go through a due diligence process, I hope that the recognition of them, if they are successful, will not be further delayed by a legislative process through Parliament. I await with interest the answer from the Minister as to whether the bill addresses this issue.

I will take a brief call in response to the National Party member Pansy Wong’s amendment.

I start by saying that I support her intention. I agree that acupuncturists—traditional Chinese acupuncturists, in particular—have had a very long journey in trying to get their professional qualifications recognised. Over the years—and this is a separate issue from this bill—they have been courted by smaller groups with lower standards of qualification who are, I guess, trying to heavy in on the scene. It has just caused delay after delay. However—and I have explained this to the member—United Future cannot support the amendment, purely because, although the intention is right, I believe the correct mechanism for resolving this is the Health Practitioners Competence Assurance Act.

I am hopeful that, as the Minister says, those groups are now close to a solution. If she is right, that is absolutely excellent. But I was concerned, again, at an attempt to bring about resolution through this legislation by recognising, outside of the Health Practitioners Competence Assurance Act, groups that had not submitted properly to the process that is available to them. I accept there has possibly been some real game-playing in that regard for some time, and I certainly understand the frustration that traditional Chinese acupuncturists, in particular, have had to put up with.

However, I think I mentioned at the second reading that if I had my way, we would use the motivation of finance to say that if a group cannot get registered under the Health Practitioners Competence Assurance Act, then it should not be entitled, as a profession, to Accident Compensation Corporation registration. I think if a time frame was put around that—if a group was given a period of time to get registered under the Health Practitioners Competence Assurance Act—we would find that acupuncturists would very quickly become motivated to sort out their little differences, settle on a scope of practice with all that that involves, and very quickly come forward with an application form. Then we could all move on as happy campers.

So United Future will not be supporting this amendment, although we absolutely share the concern about the issue that Pansy Wong is trying to amend. We will not support her amendment because we do not believe it is the right mechanism for what she is trying to achieve.

I would just like to carry on the issues that have been raised previously with regard to cost. Perhaps the Minister in the chair, Ruth Dyson, might like to take a call to explain some of the cost implications with regard to this bill, and, in particular, to clause 13.

Section 32(7), inserted by clause 13, states: “If a person (person A) suffers an infection …, cover for that personal injury extends to—(a) person A’s spouse, … (b) person A’s child, … (c) any other third party, …”, and any other person who might be infected. There are a whole raft of infections that that provision could relate to. I wonder how far it is meant to be extended, and what the range of infections is that it is meant to cover, or whether that is fairly unlimited. It brought to my mind the question of AIDS through immigration. In talking to some people in the AIDS Foundation—[Interruption] I do not know. What does this provision mean? It refers to people who suffer an infection. If they pass that infection on, all those infected persons become eligible for accident compensation. Perhaps the Minister would like to take a call to explain just how far that goes. Let us face facts. It is my understanding that the only real way to test immigrants is to do so not only when they come into the country but also after they have been in the country 3 months, particularly if they have spent any time in a refugee camp.

I note with concern that in section 33, “Treatment”, inserted by clause 13, there is no definition of “prophylaxis”. Perhaps that is an oversight. I have checked the Act and the bill, and I could see no definition for that word. Perhaps we need a definition in the bill. The Minister might like to take a call to explain whether she intends to make provision for that.

Certainly there is concern about the cost of some of the implications of these changes. Although National supports the bill—there are some real concerns that are trying to be addressed through it—the costs that will arise as a result of its provisions are substantial, particularly with regard to section 33(1)(d), inserted by clause 13, whereby: “a failure to provide treatment, or to provide treatment in a timely manner:” means someone has the opportunity to apply for accident compensation. When 2,000 people are being bumped off waiting lists, does that mean that if any of those 2,000 people become sicker or more debilitated as a result of waiting for treatment, they are then eligible for accident compensation? There are a whole raft of considerations. Perhaps the Minister might like to take a call, as the provision says: “a failure to provide treatment, or to provide treatment in a timely manner:”, and when people are being bumped off waiting lists, or made to wait on waiting lists, why would they not be eligible for accident compensation in that circumstance? Perhaps the Minister might like to take a call to give us an explanation for that, and to give us some idea as to whether a definition of “prophylaxis” will be put forward, seeing as there is not one in the Act or the bill. That is something that might need to be addressed. Certainly there is a concern around the suffering of individuals when they incur an infection and how far that might spread to others.

I reiterate the concerns expressed by Business New Zealand about the omission from the bill’s explanatory note of any statement of likely cost increases, both in respect of actual compliance with increased administration and levy costs, and in terms of the expense of covering the liability issues with regard to people being able to claim.

I also reiterate that section 33(1)(g), inserted by clause 13, refers to “the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis …”, whether it be an implant for breasts or implants for developing masculine pecs. What is the definition of “fair wear and tear”? How many times do those things have to be handled before they start to wear out?

I would like to take a brief call on Part 1 in order to specifically address an amendment raised by Pansy Wong. I want to address it specifically because I think that her intention is very genuine and I understand where she is headed with her amendment. I regret that I am not able to support it, for very similar reasons to those that Judy Turner from United Future has outlined.

I think the process that the Health Committee, and the warring parts of our acupuncturist sector, went through has made some progress, in terms of ensuring that when we fund services through the Accident Compensation Corporation (ACC) or the health system we can have some quality assurance. That is our primary consideration. We will not put taxpayers’ money provided through any system into a health service that we do not have some confidence in, so we have to have that standard. We also wanted to make sure that people had better choice in the type of acupuncture services that they were entitled to receive. The committee put a huge amount of effort into the issue of acupuncture. From the comments that I have heard back, it seemed to be the No. 1 issue. The progress that we have made in that area is, I believe, the right step at the moment. That does not rule out anything in the future, but I think we should just wait and see how far that progress enables us to go.

I also draw the attention of Pansy Wong and the rest of the Committee to clause 43, which outlines the procedure for defining and changing future health providers. That is where the accident compensation system has finally come entirely into line with the health system through the recently passed Health Practitioners Competence Assurance Act. That is the way that we should progress, so that regardless of the system that patients or claimants use to access health services, we can be assured of quality services.

It is with some regret that I do not feel able to recommend to my colleagues that we support Pansy Wong’s amendment. I think she has done it with a lot of understanding of the situation that acupuncture—

💬 Sandra Goudie: What about the failure to identify cost issues?

There is some noise coming from the other side of the House. It may be interference in the speaker system. Although I think that Pansy Wong has prepared the amendment with a genuine intention, I cannot support it at the moment. I hope she is able to support the process and encourage her colleagues in the wider acupuncture sector to use the processes available through the health legislation in order to progress their access to more claimant support.

I was hoping that when the Minister for ACC rose to take a call she would talk a little bit about Supplementary Order Paper 365, which is in her name, and in particular about the proposed clauses 28A, “Application and source of funds”, and 29A, “Application and source of funds”. Clause 28A refers to obligations that the Residual Claims Account has, and clause 29A refers to obligations that the Self-Employed Work Account has. It is late at night, I have had a hard day, and on top of that I am just a simple sailor, but I have tried to work out where the dickens 1 July 1999 comes from. There must be a reason for the inclusion of that date. I guarantee to the Minister that the Government members do not know.

💬 Hon Ruth Dyson: They do. They asked me.

Will the Minister take a call and explain these two clauses? I say that with a degree of jest, but I am also serious. I have read these clauses over and over again and I have tried to work out why 1 July 1999 is included. Why not the year 2000? Why July? August is a nice month, too—or September. Perhaps she could explain it.

💬 Darren Hughes: September will be very tough for that man.

I invite the member to read these clauses—paragraphs (a) and (b) of section 201(4), in clause 29A, in particular, because they seem to counteract one another. Perhaps the Minister could explain it. This Supplementary Order Paper has not gone to a select committee, there is no intention of it going to a select committee, and I believe that nobody fully understands it. If she will not do it, it is no good my asking her colleagues, because they do not have a clue what this Supplementary Order Paper is about.

💬 Hon Ruth Dyson: Why do you think they contradict each other?

To my mind they seem to do that. I will read paragraph (b): “the claimant was self-employed when performing that task or in that environment (regardless of whether the claimant was self-employed at the date on which the personal injury is regarded as having been suffered).” There must be simpler language to use to explain what I think that means. It sounds pretty damn complex to me. I guarantee that the average guy out in Kiwiland will say: “What the dickens is that telling me?”. It is not going to the select committee and nobody in the Chamber has spoken about it, so I ask the Minister—who is an expert when it comes to accident compensation matters and understands the legislation inside out and back to front—to please take the time to give the Committee an explanation.

In terms of the Greens’ amendments, New Zealand First is particularly pleased with their amendment to clause 13. They want to omit from section 32(2) paragraph (c)—“personal injury that is solely attributable to a resource allocation decision:”. If we are really to address medical misadventure, it seems to me that if a person goes to a hospital and is told that he or she cannot be treated because the hospital does not have the money to do so, and the person then gets worse, he or she is entitled to be compensated. My colleague Barbara Stewart raised that in the first instance, and the Greens took it up and came up with their amendment, which deletes that paragraph from the bill.

💬 Judy Turner: All illness is under ACC.

No, no, no. This is the case where a person who is ill and in need of treatment goes to a doctor, and is told that there is not enough money for the doctor to treat him or her right then. The amendment deletes a paragraph in the bill, to ensure that that person will be covered by medical misadventure. It is a legitimate concern. I know that ACT will not agree with it, because it will cost a bit of money. But it is a fair issue that needs tidying up.

💬 Judy Turner: Does an illness become an injury?

I am taking on the whole Committee here; it is like question time in reverse! It is medical misadventure in so far as it is embraced in the main legislation under medical misadventure provisions. The Government in its wisdom—[Interruption] The Government got it wrong? We are saying that the Government did get it wrong—

💬 Steve Chadwick: They have gone—medical misadventure.

But there is a provision in the bill that states those people will not be entitled to compensation, and that should be addressed.

I move, That the question be now put.

I am glad to see the real Minister, Ruth Dyson, in the chair rather than the stunt doubles we saw earlier. I would like to direct some of the questions that I raised earlier in the debate to the Minister. In particular, the Opposition was very concerned about the new definition of a treatment injury. We agree on the Opposition side of the Chamber that the definitions that we have had in the past for medical mishap and medical misadventure were unsatisfactory and caused unnecessary administrative delays and anxiety in the community, as a result of having to find fault before cover and support were given. However, we are unsure that the full implications of the new definition of treatment injuries have been thought through. For example, section 33(1)(b), inserted by clause 13, states that treatment includes “a diagnosis of a person’s medical condition”. As we know, making a medical diagnosis can be a very difficult process. Although medicine looks as though it is very scientific, we know that it is not an exact science, that sometimes medics will make mistakes, and that some conditions, diseases, and complaints are not necessarily easy to discern. So we would like the Minister to explain that new part of the definition.

We would also like the Minister to explain whether section 33(1)(c), which is inserted by clause 13 and states: “a decision on the treatment to be provided (including a decision not to provide treatment):”, just includes a doctor not providing treatment, or whether it also includes individuals deciding that they do not want to be treated. We have had some high-profile cases in which people have decided that they do not want any kind of treatment, and that has resulted in a deterioration of their condition.

I would also like the Minister to talk about whether she is confident about the costings that the Department of Labour has done on this bill. It has calculated that the costs will increase by $8.69 million annually, and that there will be a one-off transitional cost of $12 million. We did not really get into how that was determined. In view of the very extensive change to the definition of what constitutes a treatment injury, there was some concern that there could be a blowout of costs, because an increasing number of cases will now be able to be covered. We have not had a full discussion—although earlier in the debate a Minister in the chair attempted to explain this, I think, when I was out of the Chamber—on what happens if a deteriorating condition comes about as a result of being on a hospital waiting list, or as a result of somebody simply not being able to get in and be given care in a timely fashion. For example, if somebody has breast cancer and has not been able to get on a list to go in for radiation therapy or chemotherapy, what happens if that patient’s condition deteriorates? I know that breast cancer is an illness or disease in the first instance. But if things deteriorate as a result of not being able to get treatment, does that mean that the district health boards could be in a situation whereby they could be sued, or would all of those people be covered?

There are still some unanswered questions when it comes to the bill, and it is important that the Minister take some time to explain some of the changes. We would also like her to explain some aspects of Supplementary Order Paper 365 in her name, because some of the clauses look remarkably like some of the clauses in the bill. In fact, in the amendment to clause 3 the words are exactly the same, although there is a bit of a layout change. That amendment deals with the repealing of the definitions of various categories of health practitioners, from acupuncturists to audiologists to chiropractors. I wonder why that clause has been put in the Supplementary Order Paper, because there just seems to be a layout change. There does not seem to be anything different in the wording, and I wonder whether anything is hidden there. Certainly, I cannot discern a change, so I would like the Minister to explain that, as well as the other matters I have raised.

Finally, I would like the Minister to explain why she thinks there can be no choice in the sector.

I thank the Chair for the opportunity to take another call on Part 1 of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3), which is a major part. I hope the Chair will allow plenty of time for this part to be adequately discussed in the Committee stage, because undoubtedly it is the major part of this very important bill, and the changes are important.

Firstly, I would like to focus on the amendment of my excellent colleague Pansy Wong. I appreciate the Minister in the chair, Ruth Dyson, commenting on her amendment, but I really think that the Minister’s explanation was insufficient. After all, the definition that has been arrived at in this bill is extraordinarily arbitrary in many respects. The definition in clause 3(1) states: “acupuncturist means—(a) a member of the New Zealand Register of Acupuncturists Incorporated; or (b) a member of the New Zealand Acupuncture Standards Authority Incorporated who—(i) is a qualified health professional …”.

Clearly, the practice of acupuncture in New Zealand has evolved over several decades, and that definition excludes a significant number of people who have carried out acupuncture in good faith over time. I agree entirely that a definition or requirement of an acupuncturist in New Zealand must mean that the approval puts quality of provision foremost, and that the group’s ability to carry out quality-assurance exercises, peer review, and continuous quality improvement is all-important.

It seems curious that after 5 years of a Labour Government, the Minister in the chair, Ruth Dyson, has been unable to facilitate the various acupuncture groups in New Zealand to get their act together and agree on those fundamental principles. I acknowledge that at the Health Committee there was almost an expectation that the committee could do it. But this is a Government that said it would hold itself accountable, and here it is clear that it has failed miserably once again.

💬 Hon Ruth Dyson: That was never in the manifesto.

Now she is denying it! Well, that is a revelation. That is the Minister who in the 1990s went shrilly around with her colleagues Annette King and Helen Clark, saying that they would deliver, they would be transparent, and they would be accountable, yet they have failed in every single one of those promises. When the going gets tough, they say: “Whoops, no, no!”. We have had a revelation from the Minister for ACC, Ruth Dyson, that the Government—it has admitted it—will no longer be held accountable. I think the people of New Zealand should be aware of that crystal-clear admission from the Minister for ACC that this Government will no longer be held accountable for what it does. That is a huge worry.

As I was saying, Pansy Wong’s excellent amendment states that, thirdly, a very important group of acupuncturists in New Zealand should be given the opportunity to be defined as an acupuncturist under the bill. All she is asking is that the following provision be added after clause 3(1)(b): “(c) a member of any other entity that ACC, or a duly delegated authority, approves after due process subject to the Minister’s final approval.” Well, maybe the Minister is once again saying that the Minister cannot be accountable for it. She cannot trust her own judgment. I can understand that, particularly after this latest revelation.

But the vital thing about acupuncturists and their definition in the law is that they can demonstrate that what they are doing consistently treats patients effectively and has a scientific base behind it. I would like the Minister to take a call and assure the House, and acupuncturists in New Zealand, that she will be moving towards those standards.

I move, That the question be now put.

I was a member of the Health Committee, which laboured long and hard in relation to the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). It is not a massive bill—although it is certainly more massive than it needs to be—but it took an inordinate amount of time. In particular, it took a lot of time in relation to acupuncture. I would like to follow on from my excellent colleagues Dr Paul Hutchison, Katherine Rich, and Sandra Goudie, who have been speaking about that very issue tonight.

One of the concerns I have is about how the Minister came to decide on the two particular bodies that are to be the sole representatives of acupuncturists. It probably has not escaped the attention of members of the Committee that acupuncture was not invented in New Zealand. It was something that, I think, was brought to us from China at various stages. We have the particular bodies that were set up, and I think in particular of the group whose members are mostly doctors. The attitude was very much that they make up a very small group that does not have particular training organisations or anything else, but the members of that group seem to have the ear of this Government. As we have learnt from John Tamihere, this Government does have tentacles in all sorts of places, and some of them are incredibly unseemly. One of the things that Mr Tamihere told us was that there are friends whom the Government can rely on. I am very concerned that a group is being given the OK to OK people for acupuncture treatment, and also for accident compensation payments, because it is a very small group that obviously happens to have the ear of the Minister.

My colleague Pansy Wong has made a very sensible suggestion for an amendment to deal with the fact that the bodies that are being given credibility, in some way, for acupuncturists are bodies that have set themselves up. They are not bodies that have been set up by this Parliament. They are bodies that this Parliament is now being asked to approve of, really, in terms of funding for accident compensation, yet they have no particular statutory authority, as I recall the situation. For instance, they are not like the New Zealand Law Society, which has statutory authority in relation to the legal profession. Nor are they like the Medical Council. They are just groups that have grown up ad hoc.

Why are we in this Parliament legislating to give those bodies special powers, when we have had no assurance or any reason to believe that they—those groups, or associations—will necessarily continue, or that their rules will necessarily be rules that we in Parliament think are appropriate? We actually have no authority over those groups in any way at the moment, other than to bring in new legislation. So, unless things have changed since the select committee days on this bill, that is the situation. Here we are, giving those people a seal of approval when we have absolutely no reason whatsoever to do that, because we have had nothing to do with their set-up, with how they run themselves, or with their ethics. We in this Committee are being asked to go along with a bill that gives those groups not quite a monopoly right—but together they have a monopoly right—over who can be acupuncturists. So unless the practitioners of acupuncture who have come here from China belong to one of those groups, they will suddenly be told that they cannot be called acupuncturists in terms of this legislation. Frankly, that seems to be ridiculous.

So I support Pansy Wong’s suggestion that after the Minister’s final approval, the Accident Compensation Corporation (ACC)# or another delegated authority could in fact approve another entity, if any such entity should exist or come along in future to be approved. Just doing that would actually free up the Minister, and future Ministers and the ACC, to actually do the right thing, rather than to force current acupuncturists to have to belong to a group that they may have absolutely nothing in common with, other than the fact that they are acupuncturists. Acupuncturists may not agree with the way the two groups practise, with their ethics, with their rules, or with all sorts of things, like the fees they have to pay, but we are stating in this legislation that those two groups are the only two that we will ever look at. Well, why are we doing that? I really think that the Minister should look at the sensible suggestion from Pansy Wong, rather than just dismissing it out of hand because it did not come from the Government.

I move, That the question be now put.

I would like to take a short call. Before I get on to asking the Minister for ACC some questions, now that we do have her in the chair, I would like to say that I will be supporting Pansy Wong’s amendment. Given that the acupuncture groups are not covered by the Health Practitioners Competence Assurance Act, I think Judith Collins is quite right to ask why only two groups should have approval, when there may well be other groups out there that should be entitled to work, as long as they meet the required standard. In the absence of the groups being part of the Health Practitioners Competence Assurance Act at the moment—

💬 Judy Turner: The Minister?

—yes, the Minister—then they should be. So I will be supporting that amendment, on behalf of ACT.

💬 Judy Turner: It’s not her job.

Well, that is why we have the amendment—so that it will be her job.

I say to the Minister that I think there are a lot of questions being raised, and, given that it is her legislation, I myself would like to ask her some questions in addition to the ones being asked by other members on this side of the Chamber. I think Peter Brown raised some very good points on new clauses 28A and 29A on Supplementary Order Paper 365. I will just reiterate my concerns about that Supplementary Order Paper.

As has been the case with many other Government bills of late, it has come before us late in the process so that it is not able to be scrutinised by a select committee or by public submission. I think Mr Brown may have inadvertently missed out new clause 26A, which is another clause where funds—this time concerning the employers account—are allocated. I think it was on the other side of the page, I say to Mr Brown, and he probably did not see it. But I ask the Minister whether she could take a call and explain clauses 26A, 28A, and 29A and what implications they may have, because I think that is unclear.

Unlike Mr Brown, I did not read those clauses as including illness. I think we are probably still talking about just injury. But my concern is that funds from the employers account, the residual claims account, and the self-employed work account must “be applied to meet the costs of entitlements for personal injury caused by work-related gradual process, disease, or infection …”. Does that mean to say that the provisions are being broadened out so that funds no longer will come from only the earners account and non-earners account, or will the levies from those two accounts—where medical misadventure is currently paid out from—be broadened? What impact might that have? By putting these clauses forward, does the Minister have any intention that levies on health practitioners be included?

I ask the Minister to clarify the situation—particularly, for me, the distinction between illness and injury with regard to these clauses. I did not see them as including illness. In fact, that is one of ACT’s main objections to the whole accident compensation programme and to this bill—that unfairness does exist in that two people might have the same end product, but one person who suffered an illness receives no accident compensation, whereas the other person, who suffered an injury, does receive accident compensation. An insurance-based programme of some sort, preferably one open to competition, would get round that problem. If the Minister could perhaps address those things, that would be very good.

I move, That the question be now put.

I rise briefly in response to the debate that has emerged over the issue of acupuncturists and Pansy Wong’s amendment. It did seem to the Greens a very odd thing that, when we were in the middle of dealing with an accident compensation bill on injury prevention, rehabilitation, and compensation, suddenly a completely new definition of “acupuncturist” was introduced. It seemed to us to be quite a bizarre way of amending that definition. As the members of the Health Committee will know, the Green Party opposed it because we felt that it was being done in a rather odd and arbitrary way. It seemed odd that the Health Committee had to listen to all those acupuncturists, many of whom were in great contention with each other, and to try to work out whether this particular group, or any other group, should be included in what is now a new definition of “acupuncturist”.

As we were outvoted, and as the new and rather arbitrary definition is now in the legislation, the Green Party will be supporting Pansy Wong’s amendment, because it seems to us that it is quite arbitrary to recognise just two particular groups. I am not quite sure why we should do that, when there are several other groups seeking recognition. I know that some of the Chinese acupuncture groups have been trying for a very long time to get recognition. Some of their members are from China, and they probably have much more extensive qualifications, practice, and experience in acupuncture than many New Zealand - trained acupuncturists. It seems odd to us that we are recognising one particular group in this legislation. A lot of questions were asked in the Health Committee about why we were singling out that group, and amending the entire definition of “acupuncturist” in the middle of consideration of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3), and why we were giving favour to one group and excluding other groups.

I regret that the proposed amendment has been presented so late. I would have liked to have much greater consultation on it with members of the acupuncture profession. But, in general, because of the arbitrary nature of the new definition that has been parachuted into this Injury Prevention, Rehabilitation, and Compensation Bill (No 3), it seems to us that it would be preferable to have Pansy Wong’s amendment in place, rather than have the Health Committee try to define, in the middle of consideration of an accident compensation bill, which acupuncture groups should be eligible to come under the new definition of “acupuncturist”, and which should be excluded. Quite frankly, we in the Health Committee did not really have that sort of expertise and understanding. It was all so arbitrary, and this amendment does seem to us a preferable process. For this reason we will be supporting the amendment.

I move, That the question be now put.

Motion agreed to.

The question was put that the following amendment in the name of Pansy Wong to clause 3 be agreed to:

to insert, after paragraph (b) of the definition of acupuncturist, the following new paragraph:

(c) a member of any other entity that ACC, or a duly delegated authority, approves after due process subject to the Minister’s final approval.