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

I rise to speak to clauses 1 and 2 of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). I point out that although we have been discussing the whole accident compensation issue this evening, the amendment bill does not deal with injury prevention at all and neither does it deal with rehabilitation. Although we have talked about compensation, about changes to definitions of medical mishap and misadventure that the National Party supports, we believe that a bill should be titled in a way that truly reflects the nature of the legislation. I would like the Minister for ACC to take a call to explain the name of the bill, because it does not seem to reflect what is actually in the bill.

We are also looking at the changes to the commencement date. It is quite clear that this bill has been running late for the Government. Changes in the bill were to come into force on 1 April 2005; that date has now been shifted out to July. So we are seeing some delays, and I would like to hear the reasons for those delays.

Also, I would like the Minister to explain some extremely complex wording and changes. I know that we have already voted on her Supplementary Order Paper 365, which these changes are in, but they relate to clauses 1 and 2. I shall read out some of the amendments, because they do not seem to me to be at all clear.

If we look at the amendments to clause 2 on Supplementary Order Paper 365, we see—I shall skip the first amendment and quote from the second amendment onwards—“To omit the word ‘April’, and substitute the word ‘July’. To add to subclause (3) the words ‘; and 1 or more Orders in Council may be made appointing different dates for different provisions and different purposes, including different dates for different repeals set out in section 3(2)(a) to (t)’ ”. That seems to me to be legal gobbledygook. It is not very easy to understand. The word “different” is repeated many, many times. If the Minister can explain the impact of those changes and what they actually mean, I will be very impressed. If members will look at clause 2, they will see that the amendments are as clear as mud—appointing different dates for different provisions and different purposes, including different dates for different repeals as set out in section blah-blah-blah. That is not 100 percent clear to this side of the Committee, nor to members on the other side, I am sure.

This bill is one for which there has been a lot of support. National members are a bit unsure about the title, because there is nothing in the bill about injury prevention or rehabilitation. We agree with the changes in definitions that have been made. As many members who continue to do constituency work will know, to prove that medical misadventure or medical mishap occurred is quite a process—having to find fault, having to go through a process of, first, getting a medic to say that he or she has made a mistake, then of proving that—and in the meantime a lot of anxiety is caused, and there are lots and lots of delays. This bill allows treatment injury, as it is now called—which does make it a bit clearer—to fall into line with the rest of the accident compensation system, which is a no-fault system, and which I think has cross-party support in this House, and has done since 1974.

Of course, the key, defining issue is choice, and whether people are able to make a choice about how they get their insurance and where they get their insurance. We believe that the State is not the only organisation or group that is able to provide accident prevention education, injury prevention insurance, or accident insurance, and we think that is one of the aspects of this bill on which there is a very clear difference between National and Labour. We have heard tonight about a lot of the costs and concerns relating to cost blowouts.

When we are considering clauses 1 and 2 of this amendment bill, I, too, would like to ask the Minister for ACC to explain the confusion that may well exist amongst some members because of the repeated use of the word “different”, as read out by Katherine Rich. There may well be funding implications in amongst that confusing sentence in places, and that is something I have repeatedly outlined.

When we look at this bill we see there will be one or more Orders in Council. Obviously, the dates will be determined by the Accident Compensation Corporation, probably through the Department of Labour. It may be that some are held up for a while because funding has not quite been sorted out, or it may be that they are rushed through. Despite my request to the Minister, and that of some other members, particularly Peter Brown from New Zealand First, we never had an explanation from her about new clauses 26A, 28A, and 29A—on Supplementary Order Paper 365—in regard to the employers account, the residual claims account, and the self-employed work account. When we look at Orders in Council being used for the appointing of different dates for different provisions and different purposes, including different dates for different repeals, as set out in clause 3(2)(a) to (t), we see that that does leave us with a great unknown as to exactly what it means.

As for clause 1, “Title”, the National Party member was quite right when she said the bill is about compensation but does not deal at all with injury prevention or rehabilitation. We in the ACT party would agree that it is very important to have a clear title so that when those who do not have a legal background read the legislation they do, in fact, have a reasonable idea and expectation of what they might find in the bill or the Act that they reading. So the bill probably is not aptly named, despite the fact that it is amending original legislation of that name. We do like to see some clarity in those things.

It is worth reiterating why ACT is opposing this bill. I have mentioned the funding issues, and the confusion that may exist with the provision in clause 2 for Orders in Council. We will be opposing that clause. The funding issues are a great unknown, and we raise an objection to competition being ruled out completely from the accident compensation regime. The National Party members have also outlined, as has New Zealand First, that they would like to see competition existing within the sector, but unfortunately they do not feel quite strongly enough about it to oppose the bill. That is a great shame. To have the courage of one’s convictions is a great thing. It seems that the ACT party is alone in making a stand about this issue tonight as we go through the Committee stage of this bill.

Some clarity about the title would have been welcome, as would an explanation from the Minister about the gobbledygook of the wording of those amendments to clause 2 on the Supplementary Order Paper. Some competition and choice within accident compensation would also have been very welcome, but obviously that is not to be. However, ACT will be registering very strongly in future votes its opposition to that.

Thank you, Mr Chair, for the opportunity to speak on the title and commencement of the Injury Prevention, Rehabilitation and Compensation Amendment Bill (No 3). I want to reiterate the reasons why the National Party has, indeed, supported this bill, which resulted from the review of medical error and medical mishap that has occurred over the last 2 years. The review identified the core problems that medical mishap criteria are arbitrary, and often bear little relationship to the circumstances of the patient, which results in claimants unfairly missing out on cover; and, secondly, that medical error criteria require establishing that an individual practitioner or organisation is at fault, which is at odds with a no-fault system, and hinders the medical misadventure claim process. There is no doubt that those are very unfortunate aspects, and that they have gone on for a long time. They need addressing, and have been addressed by this bill.

I guess it is the other aspects of this bill, however, that worry us. Firstly, I want to comment again on the excellent attempt by my colleague Pansy Wong to bring in a fairer solution to the problem concerning acupuncturists, which the Labour Government and the Minister for ACC have failed to address. Surely, after 5 years, they should have managed to sort out a solution for acupuncturists. Instead, they have caused the exclusion of a group whose members come from China and are of Chinese origin, and who perhaps have not been as powerful advocates as the two traditional acupuncture groups that the Minister has included. I think it was a great pity that United Future was the only other party—there was the Progressives too, but we do not count them—that did not support Pansy Wong’s excellent amendment, which would have, at least, given the Minister a chance to address the anomaly concerning acupuncturists.

I come back to the title: “Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3)”. I think Katherine Rich was quite right; the title does not reflect what this bill is about. This Government, after 5 years of saying it wants to focus on prevention, has a dismal record on it, despite having spent $40 million a year—it is coming up to that—and increasing. We know that the statistics show there are more moderate and severe accidents every year in New Zealand than there were in prior years. So the Government gets a “fail” for that. As to rehabilitation, there is a clause in this bill where the Government says it is going to stop rehabilitation. If we think back over the 5 years, we realise we have seen some very curious and odd aspects of its rehabilitation methods. I think back to nasal lavage, which was carried out in the Waikato under this Minister’s watch. Even worse, down in the South Island, near Oamaru, the Government had Accident Compensation Corporation rehabilitation people writing their own epitaphs. That was a most extraordinary phenomenon, and it occurred under Minister Dyson’s watch.

Finally, we have compensation. Indeed, constituency MPs have all sorts of difficulties with the interpretation by this Government of what is fair compensation. Anomalies do arise from time to time, and, unfortunately, we have a Minister who is particularly slow to address those anomalies. One of the other outstanding things about this bill is the Government’s reckless attitude towards how much it is going to cost. The Minister has not at any stage addressed that aspect.

On behalf of New Zealand First I rise to support clauses 1 and 2. When we look at the title of a bill it should be very short, it should be specific, it should be clear, and it should also leave the reader in no doubt as to what the legislation is about. In this instance, the title is a little more difficult to decipher. It does not quite meet that test. We know that this is the third bill to implement reforms to accident compensation, and this is one bill that we are particularly pleased to see. New Zealand First is of the opinion that claims and compensation for medical misadventure need to be monitored, to ensure that claimants are treated fairly. We hope that this comes about with this bill.

We, like other MPs, have received many complaints from constituents about medical misadventure so we are very happy to agree to the changes in the definitions contained within this bill. The processes in place prior to this bill definitely needed to be more streamlined, more fair, and more equitable for claimants. The rules and regulations governing accident compensation claimants need to be very clearly understood and very clearly applied, and this will occur with this bill.

In the past the punitive environment that was part of accident compensation was extremely short-sighted, and we particularly like to see the attempt to implement a programme in the “no blame” system that has been put in place under this bill, to improve the medical safety cultures of health professionals and their knowledge. That is really great. The biggest gains, hopefully, will be that there will be fewer claims for medical misadventure, because medical professionals, like everybody else, can learn from their mistakes.

Like other Opposition parties, too, we are concerned about the increased costs that may arise in relation to this bill, particularly when the Department of Labour has calculated that costs will increase by $8.69 million annually and there will be a one-off transitional cost of $12 million. That is quite considerable, particularly in light of the fact that the department commented that it had been very difficult to obtain data upon which to base claim number predictions and costings. We hope these costings are relatively accurate.

Like the other Opposition parties, we also want to see the anomalies concerning acupuncturists resolved very promptly. They have been ongoing for a lengthy time. We would like to see an end to this acupuncture debate, and for acupuncturists to come under the Health Practitioners Competence Assurance Act. I see that the Minister agrees as well. So New Zealand First will be supporting clauses 1 and 2, and we look forward to their implementation.

The point has been made—and I will repeat it because it is a good point—that when we have bills like this, or any bills, they should have a title that clearly shows where to look to find a particular piece of law. In this Parliament all we do is create law, and it is very important from an access to justice point of view that the name of a bill reflects fairly what is in it. Frankly, the title Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3) does not cut the mustard.

There is one issue I would like to speak about, and it concerns treatment. It concerns me somewhat in these final phases of the Committee stage. When we look at what is now to be defined as “treatment” in terms of what we used to call “medical misadventure” but we will now call “treatment injury”—which takes away any concept at all that anyone might be to blame for anything—there is provision under section 33(1)(f), inserted by clause 13, for the provision of prophylaxis. One of the great things about having a doctor in the House is that I quickly looked at this and said to my colleague Dr Paul Hutchison: “Paul, doesn’t this include condoms?”, and he said: “Well, yes it does, but it also includes antibiotics and other things that are used to prevent infection or other things from passing across.” The trouble is that it does not seem to me that there is sufficient definition to say that we are talking just about antibiotics and issues like that, because treatment by its nature, according to the definition, does seem to include the provision of condoms. I cannot for the life of me believe that that is what the Minister in the chair, Ruth Dyson, intends. Perhaps I am reading it wrong. I am hopeful that the Minister will take a short call to clarify the issue, because it does seem slightly bizarre.

In particular, I mention a comment that we made in our minority report about the cost of this. Whatever we do with these sorts of provisions, we need to be aware that someone pays a cost, and the someone happens to be the employer and the employee. Everything that is paid by the employer in terms of compliance costs means that employees end up with smaller wages. It is one of the reasons why people on the average wage can shift out of this country, go off to Australia, and get themselves $9,000 per year more than they can in New Zealand for the same job.

The Health Committee had some estimates from the Department of Labour, but, frankly, the stated cost of $8.6 million annually, with a one-off cost of $12 million, is a significant amount of extra compliance cost—and, of course, we do not know just how open-ended it will be. Some of us can remember that the domestic purposes benefit, when it was first being promoted, was going to cost a few million dollars a year, and now it is a massive drain on the finances of this country. Sometimes, with the best of intentions, we may think that things will cost only a certain amount. Unfortunately the Minister has not taken a call on this issue. I would like to give her that opportunity.