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

I move, That the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3) be now read a third time. The bill builds on the framework provided by the existing legislation, and provides a fair, comprehensive, and equitable injury compensation scheme that is responsive to the needs of claimants while maintaining a responsible approach to fiscal and levy costs. The bill continues to progress towards making the scheme more responsive to claimants’ needs through simplifying cover and streamlining processes for medical misadventure claims, through making weekly compensation entitlements for newly self-employed people fairer, and through improving claimant access to more comprehensive social rehabilitation.

The primary purpose of this bill is to implement the results of the Government-initiated review of the medical misadventure provisions. The bill provides for a change to the cover and reporting provisions in the Injury Prevention, Rehabilitation, and Compensation Act of 2001. The changes to the medical misadventure provisions continue our Government’s commitment to a fair and sustainable accident compensation scheme for reducing the incidence and impact of personal injury. The bill replaces the existing medical misadventure provisions with a new category of “treatment injury”. The cover provisions no longer distinguish between medical error and medical mishap, but refer to treatment injuries. Claimants do not have to demonstrate error or show that their condition is rare and severe. Treatment injuries are simply injuries that result from the treatment. The removal of the fault-finding provisions captures information for the injury prevention purposes of the accident compensation scheme, and aligns the scheme’s no-fault nature, generally.

The bill also provides that the organisation involved in an adverse event examines how a treatment injury occurred. That fosters a learning environment for health providers and organisations, and will prevent adverse medical events in the future. The bill also provides a safety net by requiring the Accident Compensation Corporation (ACC) to report information to the relevant professional body if it considers there would be a risk of harm to the public.

Changes to the medical misadventure provisions expedite the claim process for claimants, and will support claimants to make claims. The changes provide for claimants to be advised of the role of the Health and Disability Commissioner under the Code of Health and Disability Services Consumers Rights.

The bill also provides fairer methods for calculating weekly compensation for people who have moved into self-employment. Income from other work undertaken during the income year will now be factored into the calculation. That accident compensation entitlements will be fair during that transition period will provide certainty for people moving into self-employment. In addition, the bill allows ACC the discretion to provide certain rehabilitation entitlements that were previously prohibited by the legislation. That will help seriously injured claimants to lead independent lives, by enabling greater individualised responses to their needs.

This bill is the result of one of the best examples of public policy development I have seen. I want to put on record my appreciation of the officials for their fantastic work, and of all the interested parties who contributed to the development of this legislation. I also take the opportunity to thank my friend and colleague Lianne Dalziel for her work in setting up the medical misadventure review, in the first place.

Finally, I thank the Health Committee and its officials for their work on this bill. It is a rather unusual situation in that all parties, bar one, will be supporting this legislation—it is not surprising that that one party is ACT—because the legislation is a very good example of a public policy development process that shows its success in the support it receives, justifiably, from this House.

The National Party will be voting for the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). We are supporting it for a number of reasons. For a long time we have agreed that the definitions of “medical mishap” and “medical error” have been unsatisfactory. They have caused undue anxiety for those people who have had those sorts of injuries and who have had to go through some overly burdensome processes to try to prove fault before they received the same cover as other New Zealanders who had more straightforward injuries. Many members in the House today will have in mind a number of constituents who have fought those sorts of administrative battles.

The Accident Compensation Corporation (ACC) has pretty much been hamstrung by the legislation and has been unable to have any discretion to deal with those sorts of cases. Unlike every other type of accident, those that have been caused as a result of treatment have had to be fault-determined before cover was given. So it was not like falling off a ladder or being involved in a car accident, where it is quite clear what the accident has been. Fault is not an issue there, but if a doctor makes a wrong diagnosis, if the treatment was the wrong treatment or was delayed, or if something went wrong during surgery, then New Zealanders who were in that unfortunate situation had to jump through a greater number of hoops before they were able to have the same cover as others who had suffered more clear-cut injuries. So we agree with the removal of faultfinding, because if one is to provide a fair system for all New Zealanders, one has to have them all facing the same circumstances.

We do agree that there should be a fair method of providing accident insurance in this country. We believe that there should be a stable opportunity for people to have accident insurance, and we believe that it should be equitable and, also, cost-effective. But where we do disagree with Labour is in the area of choice. We do not think that the State should be the only entity to provide accident cover. We do not believe that the State is the only organisation that is able to become involved in this area of insurance. The State does not need to have a monopoly. It does not have a monopoly on the provision of home and contents insurance, house insurance, or life insurance. Accident insurance is no different from other things that happen in our lives that we want to insure against.

So we need a system where there is stable cover for accidents that happen in the workplace or, indeed, outside the workplace, but we believe that there is an opportunity for other organisations to provide that level of cover so that New Zealanders are able to be compensated in the event that they suffer a work injury or some other kind of injury. Who says that the State is the only entity that is in a position to be able to provide that cover? We need to remember that Labour, when it first came into power, undid a lot of the good reforms in accident compensation in the late 1990s. Many, many businesses came into New Zealand and invested in the accident insurance area in good faith. People set up their businesses and established relationships with their client employers, and were quite a long way down the track towards establishing good rehabilitation programmes for those New Zealanders who had faced workplace accidents during the time of their cover. What Labour did was to bowl into that market and say: “You can’t provide this service any more. We are going to take over your business. We are going to kick you out of the business.” Like a South American dictatorship, it decided it would nationalise that part of the insurance sector.

So there was no fairness. Businesses had entered the market in good faith. The premiums were coming down and the rehabilitation rates were going up, and although the competitive situation had been in place for only a small number of months—I think it was 8 or 9—the indications were very good. The indications and the results, even though they were in the very initial stages, were proving to be very positive. But no, the Labour Government said that that had to be totally undone, and those organisations that had entered the market in good faith found they had to exit. In terms of nationalising businesses, it was just the same as the sorts of decisions we would see in a very unstable economy where Governments go in and out of markets at whim.

There are some quite reasonable changes in the bill. I think that it will be interesting to see how this legislation will be interpreted by the courts. There are still some concerns that the State may end up being responsible for a wide range of injuries that were not intended to be covered in the first instance. We still have a concern that as a result of delays on hospital waiting lists, resulting in treatment being delayed and thus not available to people in a timely manner, those people might not be able to call on accident compensation. Although the costings that have been done are very preliminary—I understand that the Department of Labour has looked at the costings and estimates that the changes being made will cost the State about $8.6 million—we on this side of the House believe that the Government’s evaluations are on the light side, because we do think that there may be some unintended consequences.

But it is important to support this bill, because it does go some way towards making it a bit easier for those New Zealanders who are caught with injuries as a result of medical intervention or, indeed, a lack of medical intervention. So I think that for those people who face injuries from this point onwards, this bill will be a good thing in terms of providing cover where New Zealanders face injuries that are not necessarily as clear-cut as some other injuries. I can think of a couple of examples from my own town, particularly as a result of treatment in accident and emergency situations. We know that those are high pressure situations. Sometimes split-second decisions need to be made, and junior doctors do not necessarily consult all the time—although they should—with their seniors. There have been cases where decisions have resulted in injuries and conditions that have disallowed New Zealanders from continuing to work. Those people and their families have gone on to face very difficult battles with ACC to get cover, even when it is very clear that as a result of their injuries those New Zealanders are not able to work at the level at which they could prior to the treatment injury.

So this bill puts on a more level playing field all accidents that people face within New Zealand. It puts on a level playing field the treatment of all New Zealanders so that regardless of the sort of injury they might face, there will be no fault, their cover will be immediate once it is determined that an injury has taken place, and they will not be caught in the middle of these ongoing administrative battles that cause huge amounts of anxiety for many people and their families.

Time will tell how the courts will interpret this law. We know that ACC spends a lot of time in court, for good reasons and bad. But at this stage we think the changes that have been made so that New Zealanders who face treatment injuries—as opposed to the old definitions of “medical misadventure” and “medical mishap”—will receive fair treatment from ACC when they front up for cover.

I am very pleased to take a short call to support the third reading of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). One of the reasons why I am pleased to take a call is that this is yet another piece of legislation in the area of cover for those who have workplace injuries. The Labour-Progressive Government has made a huge difference in its term of office in making sure we have a fair and comprehensive scheme. Rather than rush to do all of that in one approach, we have been very careful to go out and consult, to find models that work, and to make sure we can give comprehensive cover to all New Zealanders.

I was interested to hear Mrs Rich, the current accident compensation spokesperson for the National Party, refer back to National’s 1990s policy, and signal to the House the direction in which National would take policy in this area. That is as close, I think, as we can get to a policy statement from the Opposition these days. I think we need to remind ourselves that one of the key points about the accident compensation scheme is its comprehensive nature. The member tried to argue for private schemes like the one advocated by her very close friend and bench mate, Murray McCully, when he was the accident compensation Minister. Of course, he was advised by HIH in Australia, a firm that was doing so well that it went belly up and no longer exists today. So National would have been very pure in terms of ideology, but it certainly would not have extended cover to New Zealand workers, if it had continued to follow that approach.

The Labour-Progressive Government is very pleased to take another positive step forward in injury prevention, rehabilitation, and compensation. This bill delivers that. A very good job was done by the Health Committee and by the Minister, the Hon Ruth Dyson. I commend the bill to the House for its third reading.

The young member did not take a long call, and, as usual, he got most of it wrong.

💬 Clayton Cosgrove: Oh grandad!

I am a grandad, and I am proud of it. If that member carries on the way he is going, he will not live long enough to become one. I want to correct the member who has just resumed his seat: HIH in Australia did run into big trouble, but my understanding is that the business it operated here was purchased, and that there has not been a single problem. So for the member to imply that HIH’s problems in Australia affected New Zealanders—

💬 Darren Hughes: It was only going for 6 months.

I know it was going for only 6 months. The member stood up and said that HIH had big problems, but it did not run into problems in New Zealand. That is my understanding, and I will willingly apologise if the member proves me wrong. Will that member apologise if I prove him wrong? No, he will not.

💬 Darren Hughes: Wait until I make a mistake, and then say “Tut, tut!”.

The arrogance of the Government member is beyond belief. This legislation should have come in in 2000, when the Government turned accident compensation back into a monopoly.

💬 Hon Ruth Dyson: We were busy.

That member was not busy. I met with that member and Lianne Dalziel in that member’s office, and she turned me down absolutely flat.

💬 Darren Hughes: What about the ACC bill?

She turned me down on that, as well. I should stop—I am ruining my reputation! This is a serious bill—never mind the hilarity on the Government side. This legislation should have come in years ago. How does one justify a person who is in many respects fit and well going into hospital to have an operation, and coming out—

💬 Clayton Cosgrove: Ha, ha!

The member laughs, but in some cases such people are stuffed for life. Some of these people have come to talk to me.

💬 Clayton Cosgrove: Name them.

I would name them. I am prepared to name one in particular privately to the member if he so desires, but I am not prepared to name them in public. They do not deserve that treatment on top of the way the Government has treated them.

This sort of legislation should have been addressed a few years ago—6 years ago. The Government honoured the promise, I suppose—if that is the way to see it—of turning accident compensation workplace insurance back into a monopoly. It should have embraced medical misadventure—people who suffer from a doctor’s muck-up, or for some other reason, when they go for treatment. One should note that people who work in hospitals—nurses, doctors, cleaners, and catering people—are covered by workplace insurance. Why are the patients not covered? Well, they will be when this bill is passed. It has taken the Minister and the Government 5 years to address that issue.

I have to say that although New Zealand First is supporting this bill, we are disappointed on a number of counts. I want to raise one in particular. My colleague Barbara Stewart raised it, I think, at the select committee, and raised it further in the House here, and to her credit the Greens picked it up—

💬 Sue Kedgley: We picked it up from the beginning.

Oh, is that right? Well, Barbara Stewart was the first to mention it to me, and I have to give her credit, but I do not want to take anything away from the member if she picked it up. She did show the initiative to produce a clause that would have addressed the issue.

Do members believe it is fair that if a person who needs hospital treatment or medical treatment is told: “Sorry, you’re not going to get it, because we haven’t got enough money.”, and, as a result, gets a lot worse, there is no compensation under this legislation? I know that United Future will say that that is not an injury. Well, excuse me, I think it is pretty much an injury if one goes from being moderately sick, moderately injured, or moderately whatever, to being a darn sight worse, because one does not get treatment, owing to there being no money. I would say that that is very much an injury. I regret that nobody, apart from New Zealand First, supported the Greens’ amendment, which would have addressed that issue. ACT and National were honest enough to say they did not support it because it would cost too much. United Future—well, I cannot work out those members.

I cannot work them out on another issue. United Future MP Judy Turner raised the concern about acupuncturists. Pansy Wong presented a solution, and United Future voted against it.

💬 Judy Turner: It was not a solution.

I cannot work that out. The Minister said that the Government voted it down because it agreed with Judy Turner of United Future. But United Future voted it down because the Government said: “We want you to vote it down.”

💬 Judy Turner: No.

It is all part of the supply and confidence carry-on that goes on in the smokeless rooms behind the scenes.

💬 Judy Turner: Get on with your reasoning.

My reasoning? I am glad the member has brought that up. I am trying to work out where United Future stands on these sorts of issues, because its members make plenty of noise outside the House but nothing in here. It is “Roll over, Rover!” when it comes to doing something in this House. That is a disappointment because we thought the Pansy Wong solution addressed the problem very, very well. It was only United Future’s vote that stopped it from going through; it would have been a positive move in the right direction.

Since the Government has been in power it has mucked around with accident compensation legislation. I think this bill is the third attempt; it is called the No. 3 bill, so logically it is the third attempt. But still the Government has not got it right. [Interruption] I can see that the member over there is very interested. The Government still has not addressed the problem of a person who is injured while working as a casual employee. He or she gets peanuts. The person might well be a student who had a great career ahead of him or her, but that person gets peanuts for the rest of his or her life. But if the employer says: “Look, I’m employing students, young people who have a future in this country”—

💬 Judy Turner: Read the bill.

I have read the bill. Why does the member not listen for a little while? She might learn something. If the employer says: “I want fixed-income insurance; in other words, I want to insure these people …”—because that is what we are talking about; nobody uses the term “insurance” now, as it is not politically correct.

💬 Heather Roy: We do.

Yes, that member does, but that member is not very politically correct, is she? So nobody uses that term if they are politically correct. This bill is an insurance bill. If an employer says: “Look, I want to insure my people—fixed-income insurance. Should there be an accident, I want them to know exactly what they are going to get in the future.”, what does the Accident Compensation Corporation tell them? “Go and talk to the private insurers.” That is what the corporation tells those employers. It does not take on that sort of risk. It deals with casual workers by using some convoluted sort of formula in this bill, which Judy Turner was talking about, but the corporation will not take on fixed-income insurance, no matter what. The corporation will not even consider it. It demands a monopoly, and the Government gives it a monopoly, but it will not take the risk of doing what the employers or the organisations want. That is unfair.

What is the answer? Well, the answer is to read New Zealand First’s accident compensation policy. Accident compensation needs a dose of competition in its ranks. That does not mean we want to carve it up, as possibly our National Party colleagues want to do, and as they did before, and have six or seven private insurers in the field. It does not mean that, at all.

💬 Hon Taito Phillip Field: You were part of that.

No, we were not part of that. I cannot give members a history lesson. We were not part of that. It did not go ahead with us. We voted against it, because we thought it was too rushed and done too quickly. [Interruption] I agreed with having a degree of competition. I have only 2 minutes left, but let me tell the members over there that the people who came to the select committee who had been insured by private insurers said, almost without exception, how well that system had worked.

💬 Clayton Cosgrove: You agreed with that.

We agree that there has to be a degree of competition in workplace insurance, and if the member cares to read our accident compensation policy he will learn a lot. Mind you, when one starts with an empty barrow it does not take much to fill it.

💬 Darren Hughes: The premiums are lower now, under this scheme. Does the member oppose that?

If it was opened up a little bit for competition, and an employer was allowed to say: “Look, I want to use a certain insurance company, and I want to offer my people workplace insurance and health insurance as well.”, the private insurers would take it on. If they do not, there will not be a market for it.

ACT New Zealand is opposing the passage of this bill for a number of reasons. Firstly, we are very concerned about the costs we think will result from the implementation of this bill. Secondly, we are very concerned that it goes no way towards rectifying the inequality that results where people who suffer an injury, and people who suffer an illness, despite the fact they may end up with the same condition, are treated financially very differently. Other parties have said they would like to see some choice in competition in premiums, and so would we. Thirdly, we are very concerned about the continuing trend of this Labour Government to introduce amendments in the Committee stage in the form of Supplementary Order Papers. They often contain quite significant amendments, and, of course, they have not had the ability to be scrutinised by a select committee or have public submissions. We certainly oppose that practice.

Several clauses in the Minister’s Supplementary Order Paper 365 seem to be ambiguous. Many of the members who spoke in the Committee stage were unsure about the implications of new clauses 26A, 28A, and 29A. Despite repeated requests of the Minister to address the questions, she did not take a call. All of that would indicate perhaps that she had something to hide. Certainly, the intent of those amendments is not clear. So ACT opposes those clauses for that reason alone.

I think it is a worrying trend. It tries to shortcut the democratic process in this country—a very robust system, if followed. We are very reluctant always to see these things happen, and we voice that objection for the future.

Our objections have not changed significantly, following the Committee stage. The minority view that ACT put forward in the Health Committee and in the report back still stands, and we will be opposing the third reading with those objections in mind.

We are very concerned about the increased cost that we think will result from the removal of the rarity and severity definitions in relation to medical misadventure. At the moment the levies come from the earners account and non-earners account, roughly on a fifty-fifty ratio. We asked officials from the Department of Labour to try to outline for us the costs they thought would result from the implementation of the bill. We also asked the Minister for a regulatory impact statement, and although we were told on several occasions that this would come—

💬 Hon Member: Should have it.

That is right. The legislation has to have it, but we are still waiting for the regulatory impact statement, despite the fact we are now at the third reading. Again, the Minister was very reluctant to address this issue and did not seek a call in the Committee stage, even though she was asked repeatedly to do that.

The Department of Labour, as I said, has undertaken to look at what the additional costs will be. The Accident Compensation Corporation (ACC) actuaries looked at the legislation and determined that possibly another 1,000 additional treatment injury claims could be expected each year, and they estimated they would cost on average $9,000 per claim. The officials totted that up and said we could expect an annual cost increase of $8.69 million and a one-off transitional cost of $12 million. But when asked how confident they were that these figures were accurate they said that it was very difficult to obtain data upon which to base claim number predictions and costings. So the answer, I guess, when we summarise it, is they are really not sure what the additional costs will be. That is, or should be, a great worry to the taxpayer.

Many health professionals contacted me over this bill, particularly people who are responsible for assessing for ACC—such as medical practitioners—saying they were very worried about the explosion of costs they believed would happen. They felt there would be a proliferation of claims. Claims are allowed retrospectively, as well as from the date on which the legislation takes effect. They were worried that the estimate of the number of claims that would come forward was very light, and the estimate of the cost per claim was also very light. These people work at the coalface and deal, day to day, with claimants for assessment, and see the end result. I think they are in a very good position to try to predict what will happen with the implementation of this legislation.

We believe that claims will be made for conditions that are not foreseeable, and the bill certainly does not prevent this. These claims may not be the fault of any party involved, but rather the unintended but statistically predictable consequence of normal treatment. I do not think we want to be going down this road. We have to accept that there are consequences, unintended or not, of normal treatment and often they are not foreseeable. If they are not the fault of any one party, I think there is being built up in this country an expectation that somebody will pay when something goes wrong, whereas previously people did undertake and accept a certain degree of risk.

ACT in opposing this bill is not arguing that ACC coverage should depend on fault. In fact, we believe that in theory there is some merit to the changes to the medical misadventure provisions, but on balance our objections outweigh the positive aspects of the bill. So that is the reason we have decided to oppose it.

I mentioned previously that the scheme operates at the boundary between sickness and accident, and this makes it very vulnerable. In fact, many patients talk of the unfairness that exists. They make claims believing they are valid, but miss out when the ACC assesses their condition and says they do not qualify because an accident or an injury cannot be proven. This often causes a lot of tension between a patient and practitioner, and we believe that this tension may well be exacerbated by this bill.

It will be in the interests of patients and health providers to classify complaints as treatment injury with those new provisions. Although I do not believe that anybody sets out to collude or to try to circumvent the system to everybody’s benefit, I think it is just human nature often to allow this to happen. So things may well now be classified as a treatment injury, whereas previously, a patient would have to make a complaint about the health practitioner before the issue was looked at. The removal of the disciplines could mean that that boundary between illness and injury will, in practice, depend on highly subjective decisions, with a loss of the integrity of the scheme that, at the moment, I do not think it really has.

Although the intention of the bill is to remove the necessity to prove fault, it is possible that those changes may result in a proliferation of complaints against medical professionals for reasonable, but unintended, consequences of treatment, and that would be a great shame.

Just to conclude, I would like to say that ACT, like the National Party, and as the New Zealand First Party also indicated, believes that choice of insurer for both individuals and employers is essential. We would like to see a return to the choice that existed for that very brief period in 1999. We think the indications were of a very good system, but, obviously, the very short period of time the competition was allowed to exist for meant that teething problems highlighted some of the initial difficulties. If those teething problems had been given an opportunity to be ironed out, we believe that in the long term cheaper premiums and lower accident rates would have been achieved. That would have been of great benefit to everybody. Choice and competition with insurers, private insurance involved, and competing with public insurers, would be ideal. We certainly believe that the private industry has a right to compete for that insurance cover.

I rise on behalf of United Future to speak to the third reading of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). Removing the necessity for an accident victim to find fault with a doctor in order to obtain cover for his or her treatment and rehabilitation is a good, sensible development. I remind the House that this amendment bill is related to accident compensation—that is to say, preventing, treating, and compensating health concerns that are the result of an unintended or unexpected event.

It seemed to me, during the Committee stage, that some members were keen to see the Accident Compensation Corporation (ACC) become responsible for all health issues, even those that were better described as illnesses, rather than injuries. We had the deterioration of a condition potentially redefined as an injury. Some very open-ended amendments were put forward, suggesting, for instance, that resource allocation issues could have seen even parents who took too long to decide whether to take their ill child to a doctor as having then given the child an injury, rather than an illness, status. In relation to the amendment proposed by Ms Kedgley, I certainly believe her intention was noble. However, when one reads what she proposed, one finds it was so open-ended as to what it meant to withhold resources of some kind that it could have applied to absolutely anybody, and not just to the Government, a district health board, or a hospital. Anybody could be perceived as withholding resourcing—and that could include a parent of a child—and Sue Kedgley’s amendment would have then changed the definition of what the child was suffering from an illness to an injury, and that just becomes a nonsense.

The key to this amendment bill is the new definition of “treatment injury”, which replaces the previous medical error and medical mishap provisions, and the culture of naming and blaming that has created a lengthy process for claimants to date. Allowing professional competency issues to be pursued as a measure separate from the approval of funding for treatment and rehabilitation is just sensible. The support for this bill by most parties is indicative of the improvements that will be delivered. The only issues that seemed to bring about controversy were those relating to the inclusion of groups of acupuncturists additional to those currently registered with the ACC. There were some concerns as to whether the $8.6 million or $9 million that the Department of Labour told us this legislation would cost was accurate, and whether what was proposed by this legislation was affordable. There were some concerns as to whether conditions that worsen, solely due to resourcing issues, should be reclassified from an illness to an injury. Despite those issues, most parties can support the intention and direction of the legislation.

I mention Pansy Wong from National, who sought to rectify the concerns of traditional Chinese acupuncturists. Although United Future did not support her amendment, we did agree with her concerns. However, we did not agree with the legal mechanism that she was suggesting. I have since given the issue some ongoing consideration, in terms of the Minister’s assurances that acupuncturists are on the verge of reaching an agreement that will see them become registered under the Health Practitioners Competence Assurance Act. If those assurances are not realised, then I feel the Minister of Health, under the Health Practitioners Competence Assurance Act—not under this accident compensation bill, which has quite a different intention—should be able to identify a profession such as acupuncturists that has worked extremely hard to become registered under the legislation, but has often been held up by the uncooperative, possibly even vexatious, actions of smaller groups that want to claim the status of acupuncturists. I think the Minister of Health could step in to that situation, having identified that that group was being held back unnecessarily, and disallow the vexatious groups, so that the group could move forward. Quite honestly, if the Minister is wrong and acupuncturists are not able to sort that matter out in a very short time, I would encourage her—the Minister of Health, not the Minister for ACC as Pansy Wong was suggesting in her amendment—to step in under the Health Practitioners Competence Assurance Act, act as an advocate, and make some decisions on behalf of a group that has gone through the kinds of trials and tribulations that acupuncturists certainly have.

Mention was also made of seasonal workers. This legislation allows one’s previous 52 weeks of income, even if it has been from different employers, to be taken into consideration when calculating the financial support that may be needed. That is particularly good news for newly self-employed people. They are often working in a new business where the income is not exciting, although they are working their way through that situation and expect the business to become extremely profitable. If they have an accident in the middle of the start-up process, under the old system they would have been entitled to very, very low coverage from the ACC. This legislation counters that. We received some assurances from the Minister that she would get her staff—and I think the report back on the inquiry was due at the end of March this year—to double-check that there were no ongoing concerns or inequity in terms of the ability of seasonal workers to claim proper compensation and support after an injury. It will be interesting to see what that report states.

United Future is pleased to join most of the other parties in the House in supporting the third reading of this legislation.

As the Green Party has said on a number of occasions recently in this debate, we too are delighted with most of the elements of this legislation. In particular, we are delighted with the elimination of the requirement to prove fault before getting a medical misadventure claim accepted—to prove that the medical profession was at fault—or to prove that what had happened was rare, severe, and had happened in no more than 1 percent of cases. Those were quite ridiculous provisions. How could one prove that something happened in 1 percent of cases? That was quite ridiculous and could not be proven. The whole business of trying to prove fault on the part of the medical profession meant lengthy, stressful processes. The medical profession was often very defensive because it was fearful it would have claims against it, which created all sorts of tensions. Basically, doctors saw every claim as a potential threat to their professional practice. So the system was very much in need of modernising and bringing into the 21st century, and this legislation certainly does that.

It is interesting to note, when we talk about medical misadventure, that what that is, as the member from New Zealand First said, is a euphemism for becoming ill as a result of going into hospital or going to a doctor. It is a terrible thing that some people have become ill or disabled, and that some have died, because they have sought treatment in the hospital service, or by a doctor or a health professional. It is interesting that in the United States it is estimated that medical misadventure, or illness caused as a result of treatment in the health professions, is the fourth leading cause of illness and medical injury. That is extraordinary.

It was extraordinary that a person who had been victimised by the health system, in the sense that he or she had gone in to receive treatment but had become unwell or ill, often as a result of picking up methicillin-resistant Staphylococcus aureus or something like that, could not get compensation and had to go through a lengthy process of trying to argue that the doctor was at fault and the injury was so rare that it happened in only 1 percent of cases. How unjust was it that someone made ill by the system could not get compensation? It seems to me that of all the people who become injured and deserve accident compensation, those who have become ill as a result of being treated in the health profession have a greater case than almost any other person. Thank goodness we are now changing that inequity and making these long-needed changes in the way the Accident Compensation Corporation (ACC) deals with medical misadventure. It will be treated in the same way as other injuries, and we welcome that very, very much.

We are very disappointed that our amendment in relation to treatment failure that is solely attributable to resource allocation decisions was defeated in the Committee of the whole House. We believe that the failure to treat a person for whatever reason should be considered to be a treatment injury and should be covered by ACC. It seems blatantly unfair and inequitable to us that if people develop an injury because they have not been treated properly by the medical profession they will be covered by accident compensation, but if they become ill because their treatment is delayed because of resource shortages they will not be covered and will be excluded from compensation under the Act. That is yet another rather arbitrary and unfair provision. We regret it, and we believe that in time it will be one of those issues that will need to be revisited. Just to give the House an example, a patient who developed cancer because of treatment delays caused by the failure to diagnose his or her cancer would be covered by the legislation, but if a patient developed cancer because appropriate treatment was unavailable because of, for example, a shortage of radiation therapists, he or she would not be covered. That is blatantly unfair.

The other thing that we believe remains unfair is the lump-sum compensation eligibility provisions. They sound very good. Under those provisions if people have an injury after 1 April 2002 they will be covered, but, in fact, the fine print states that if the causative event, the cause of the injury, occurred before 1 April 2002, they will not be covered. How ridiculous is that? If a person was, for example, diagnosed with asbestosis after 1 April 2002 and it could be argued that it was caused 20 years ago—as it always will be with regard to those long-service injuries, which take decades to develop—he or she would be excluded from treatment. Frankly, one of the great inequities that remains in the accident compensation legislation is the fact that people who have what are called long-service injuries—injuries such as asbestosis, etc. that develop over long periods of time through poisoning in the workplace—are discriminated against. This bill is a step in the right direction, but that simple little provision is totally inequitable, and the people who have those long-service injuries are still hugely discriminated against under it. It is a shame that this bill does not alleviate that anomaly, as well as other anomalies.

Let me return to the subject of acupuncture. At least we have been having, during the debate on this bill, a serious discussion about acupuncture. It is interesting that the World Health Organization recognises acupuncture as a successful treatment for about 40 different medical conditions, yet in New Zealand it is not properly recognised. It does not have statutory recognition and regulation under the Health Practitioners Competence Assurance Act. That is extraordinary. I heard Judy Turner from United Future say that if acupuncturists cannot get recognition soon, the Minister should consider intervening. But, frankly, what we ought to have done, and what the Green Party sought to do, was to get acupuncturists regulated under the Health Practitioners Competence Assurance Act. Yes, there were disputes within the acupuncture profession. So, too, were there disputes within the osteopathy profession, but osteopaths were regulated under the Health Practitioners Competence Assurance Act, and a mechanism was set up to sort out their differences. The very same thing should have happened with regard to acupuncturists, and it did not.

The Greens were very concerned about the rather odd way that acupuncture was being redefined in the middle of the debate on an accident compensation bill and that that could have had the effect of further delaying the desire of acupuncturists to become regulated, to be given statutory recognition, and to have a scope of practice—that it could, in fact, have resulted in two scopes of practice. However, I am delighted that the chair of the Health Committee, Steve Chadwick, whom I praise for her chairing when the committee was considering this bill, has assured me that acupuncturists are close to resolving the disputes that have plagued their profession—disputes that, I say, appalled the Health Committee. We were incredulous that such deep divisions were apparent in a profession that should be working together. Acupuncture is, in our view, a wonderful form of treatment, and we would like to see it recognised. We are delighted that, apparently, acupuncturists are coming to some consensus and that they will finally be able to get one scope of practice and be recognised under the Health Practitioners Competence Assurance Act. That is one positive aspect that has emerged from the bill, when during the select committee process it seemed to be something that was going backwards, rather than forwards. We are very pleased about that.

Despite the Greens’ concerns about the two issues I have talked about, which are really significant flaws in the bill—the fact that injury caused by a resource allocation decision is not covered, and the fact that the eligibility criteria for lump-sum compensation are discriminatory to those who have long-service injuries that were caused before 1 April 2002—we are so pleased with the changes made to the medical misadventure provisions that we are very happy to support this bill.

I think this is a fantastic day for this Government. This is the third bill on accident compensation that has come before the House since Labour came into Government in 1999. This Government knew, from years of dysfunctional management and law behind those who managed the Accident Compensation Corporation (ACC), what needed to happen to get accident compensation back to the Woodhouse principles. The very name of this bill—Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3)—suggests that we are now back on track to what was originally proposed by Woodhouse. I congratulate the Minister, Ruth Dyson, who has just walked in the door, on her fantastic efforts. She understands accident compensation. She is always chomping at the bit and wanting to do something. She has got on, and we have had our third bill before the House in 5 years.

It has tidied up so many aspects of accident compensation that frustrated staff but, above all, really did impede the processes for patients trying to prove that while they were undergoing treatment—whether as an outpatient, out in the community, or in a hospital setting—they had sustained an injury. Patients had a very, very difficult threshold to cross to prove that an injury was a result of treatment. They had to get doctors behind them, and get lab reports, X-ray reports, and theatre reports to prove that they had actually sustained an injury. Gone, now—thank goodness—is medical misadventure. Gone is medical error and medical mishap. Thank goodness they are gone. That threshold was so complex and so bureaucratic that few people got through it to receive fair and reasonable compensation for any injury they sustained. That is the great aspect of this bill.

I will mention a concern proposed by National that now that we have this new “treatment injury” provision, things will not be adequately reported. That is quite wrong—absolutely wrong. Medical practitioners, and all practitioners, are saying that at last they will be practising in an environment that is open, inclusive, and examines the issues and systems in which they work. This is a wonderful bill. It has resulted from great consultation with those very practitioners and managers in the health environment who were frustrated before when they tried to investigate complaints to decide whether there was a just case to go to ACC. They could not even get practitioners to turn up to talk about what had happened and what had gone wrong. Practitioners used to think that they had to bring legal counsel. They used to go to their indemnity insurers to ask whether they should admit any liability or fault. That was a sad environment.

Now we have an environment that builds on valuing our practitioners in the health sector. It also brings the role of the Health and Disability Commissioner into the loop. That is a big thing, because the commissioner used to stand alone and outside of ACC. Now ACC must report to the Health and Disability Commissioner and to the professional body that is related to the treatment injury provision. That is a very good environment for making sure complaints are properly processed and reported back, so that systems are corrected to prevent any further error.

This is a great day for the Minister, and for the Government. I am sure the Minister is already wondering what the next thing is that she can tackle with accident compensation that will exhaust the Health Committee. I would like to thank those on the Health Committee who worked with us. We worked well on this bill and found it very simple—except for the issue of the acupuncturists—because of the consultation that went on beforehand. I thank my colleagues and the committee clerk for the way we worked on this bill. I look forward to the Minister’s next bill.

That was so boring. That was the most boring election speech, from someone who is trying desperately to get into Cabinet because the Cabinet Ministers surrounding her are falling by the wayside. That would have to be the most grovelling speech I have heard. I noticed the way Steve Chadwick did not bother to thank the rest of us on the Health Committee.

She went on to say that this is the third amendment bill on this issue in the 5 years of this Government, and that is, apparently, a good thing. Third time lucky!

💬 Steve Chadwick: It was such a mess.

The Government could not get it right the first time, or the second time, and now it is having a third go. And it has not got it right today, unfortunately.

What is really annoying is that today United Future has said that it really did quite like what Pansy Wong was saying. What a shame it did not put its money where its mouth is when it had the opportunity to support a united front of National, New Zealand First, the Greens, and ACT! We were all working together. Mrs Turner from United Future knows that Pansy Wong’s amendment should have gone through, but unfortunately she takes her orders from the Labour Party. Unfortunately, that poor old party, United Future, has done itself no good by stopping the opportunity to resolve the acupuncture issue.

Despite what Mrs Chadwick says, we do not believe that things will all be fine and happy in the land of acupuncture. It has shown no signs of being fine and happy before, and we do not necessarily believe that that will happen now. And if it is all fine and happy, why not allow the other organisations to be in this bill? Why have in this bill only two organisations that acupuncturists can belong to? Acupuncturists do not have the ability to argue about it; they have to belong to those organisations. Yet those organisations are set up as private organisations, and have no statutory authority except under this bill. That is ridiculous. Pansy Wong put up a very good amendment, but the Government talked to Mrs Turner and she did as she was told, so we could not have the amendment.

Another area that I am concerned about, apart from the loss of Pansy Wong’s very excellent amendment, is the issue of “treatment” including “the provision of prophylaxis:”. I raised this issue last night. I thought the Minister for ACC might go away and think about it, to make sure that we were not putting into law something that could have some quite unintended consequences. New section 33(1)(f), in clause 13, states that “treatment” includes “the provision of prophylaxis:”.

💬 Steve Chadwick: This is the third reading.

I notice that the member for Rotorua, Mrs Chadwick, keeps calling out that this is the third reading. Well, the member should have dealt with some of the issues that were raised before, and that I raised last night, but she did not, and, consequently, I am raising them now.

We have in this country hepatitis C sufferers who are the victims of bad blood that they received in the late 1980s, when Labour was in power and when Helen Clark was the Minister of Health, and those people are not getting the settlements that they should. This bill would enable them, if they were to get sick in that situation now, to get payment from the Accident Compensation Corporation. That is a good thing and is one of the reasons National is supporting the bill. But, unfortunately, this bill states that prophylaxis can be a treatment. I have discussed this with Dr Paul Hutchison, who is a medical doctor and understands this issue, and he has confirmed for me that, normally, prophylaxis in this instance would mean antibiotics to stop infections, and things like that. But the term also means condoms, because of their use to stop the passing of infection—[Interruption] It may well be, I say to Mrs Chadwick, but under the definition of “treatment”, in new section 33, “treatment” can include just the provision of prophylaxis. It does not say that that is on the basis that it is in itself a treatment; it is saying that treatment equals prophylaxis, not that only prophylactics that are used in the course of treatment would be covered.

I think that is something we need to look at. The Minister shakes her head to say that she is right. I imagine we will have a fourth bill being brought in soon.

💬 Steve Chadwick: What could be the injury?

The injury could well be the passing on of hepatitis C, of AIDS, or of all sorts of other diseases. I think it is an issue that should have been sorted out. I know that we are in the third reading, but the Minister did not deal with this issue last night, and I am taking this last opportunity to put my concerns on record. This is something that should have been looked at. This House already knows that National members are very concerned about just how much work has been taken into account in terms of the costings of this measure, but we are also not sure that it has been done properly. We have raised concerns about that. Obviously, we do not want people suffering from bad treatments, then going on to suffer for years and years with nobody listening, like the poor old hepatitis C sufferers, who are still waiting for their settlement, despite the fact that Annette King, when she was the Opposition spokesperson on health, said that Labour would get it sorted out when it got into Government.

💬 Heather Roy: She said that a lot.

She certainly did. Five years later, those people are still waiting. Nobody believes for a moment that anyone tried to get those people to have hepatitis C. But the fact is they did get hepatitis C. Their livers have been damaged, and their whole lives have been damaged, and shortened even more than they were before. Yet we are still waiting for a resolution. It is just like with the Berrymans and it is just like with Agent Orange. When members opposite were in Opposition, they ran around saying what they were going to do. As soon as they are in Government, they are too busy doing their own thing for their own voters, and they leave those poor people alone. [Interruption] I say to Mrs Pettis that it happened in late 1989; National came into power only at the end of 1990. It happened because of the bad blood case, when Helen Clark was the Minister of Health. I say to Mrs Pettis that she should know her facts, because I have checked it out. Where is Helen Clark on this issue? She is running away and saying it was not her, just as she is so sure of what she said to the Sunday Star-Times five times.

This Minister is being told there is a concern here and it should be checked out, but she has decided not to. She is saying that the Government will just go along with it, because this bill is its third amendment bill in 5 years. The Government could not get it right once, it could not get it right a second time, and it certainly has not got it right a third time.