Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill

Members, the House is in committee for further consideration of the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill. When we were last discussing this bill, the question was that Part 1 stand part. The Hon Michael Woodhouse has one minute remaining if he chooses to use it.

Thank you, Mr Chair. It might take me a little longer than a minute to get through the questions that I have for the Minister at the start, but, in any event, when we did adjourn I was talking about the impact of the changes to the law on both the treatment injury account and the earners account and the non-earners account. Currently, if a birthing parent suffers an injury—and that’s accepted by ACC; it’s considered a treatment injury, and that’s appropriate—the funding for that comes out of the account which is funded by the Crown. This change means that, as I understand it, all birthing injuries will now be allocated to either the earner account or the non-earner account, depending on the employment status of the mother at the time that the injury was sustained.

Now, this has a couple of impacts, because, firstly, there is a transfer of the cost from the treatment injury account to either of those other two accounts. Secondly, the changes that we are making are going to significantly increase the number of claims that are being made. The select committee, when considering a broadening of the definitions of birthing injury, were advised in the regulatory impact statement (RIS)—no, it wasn’t, I’m sorry; additional advice to the committee that as many as 85 percent of mums might have a valid claim for a first- or second-degree obstetric anal sphincter injury tear, and, further, 30 percent of first-time birthing parents could have an avulsion injury. So we’re now talking about, if there’s between 50,000 and 60,000 babies born every year—what’s that, over 40,000 potential extra claims.

So the question, really, is a pretty technical one, but we didn’t get the answers in the committee. I think this committee needs to know the impacts of these things. How much is currently being paid out of the treatment injury account for existing birthing injuries, and what will the overall cost of new claims under the amended legislation be, because in the RIS it was $25 million, and clearly that’s not going to be enough per year. That’s at 40,000-odd births; that’s only about $500 per claim.

Back to the issue of treatment injury, if there is a medical misadventure, under the old language, or an error, will any birthing injury ever be attributed to the treatment injury account? One of the things that the treatment injury account has done is shine a light on harm in hospitals, in treatment facilities. ACC has a much better understanding than it did perhaps 15 or 20 years ago, and that’s important in preventing injuries. Understanding the trend of injuries then gives ACC, its injury prevention team, a steer about what, perhaps, clinical practice or clinical guidelines could be issued in order to make sure that avoidable harm in the birthing process is actually followed through. So it is important to continue to understand the distinctions between a covered injury that is avoidable from one which is not, because at least then we’ll be able to prevent those avoidable ones.

Just recognising that parts of the question or questions were asked pre - lunch break so, hopefully, I’m able to cover off the questions that the member has asked. The first question was: what will be the extra costs of the expansion to the range of injuries as agreed by the select committee? The select committee’s refining of the list of maternal birth injuries to more accurately reflect the injuries suffered by birthing parents didn’t impact the estimated costing prepared by officials. That’s because the initial estimated costings were conservatively based on estimates of the prevalence of all maternal birth injuries in the general population and not costings of the specific injuries in the bill. So being more explicit about the injuries and which ones are covered doesn’t necessarily mean there was an expansion. Because of the gaps in national data sets recording birth injuries, officials based their costings on experts’ experience of birth injury prevalence and cross-checked to international studies. As with any change to ACC cover entitlements, there’s no way of being absolutely sure of the exact costs, given that numbers and severity of injuries can change. Once the new maternal birth injury provisions are implemented and operational, ACC will then be able to build an evidence base of the types of injuries suffered and their costs.

What the experts do agree on is that of the number of injuries that are experienced, about 5 percent are likely to be severe injuries, which is around 160 injuries per year, and those more severe injuries are the ones that are likely to have the longer-term implications and therefore are likely to prevent them from being able to return to work.

The other question that was asked by the member was what happens around funding for the claims that would have been treatment injuries. Treatment injuries, as the member has rightly pointed out, are already funded, but the plan is for all, obviously, maternal birth injuries to be covered. And the issue in the past is that it was only when there was a treatment issue would there be cover. Regardless of whether a claim is for a treatment injury or for a maternal birth injury, the funding source for the claim depends on whether the client was an earner or a non-earner. Treatment injuries are funded from earner levies, of course, and, as the member has pointed out, non-earners appropriation. Maternal birth injuries will also be funded from the earner levies or the non-earners appropriation, depending, as the member again pointed out, on the earner status of the injured person.

I thank the Minister for the answer, and it’s slightly concerning, actually. I didn’t think that the initial regulatory impact statement estimates of $25 million were conservative at all. In fact, I thought they were a bit low even then. I will agree to disagree whether or not there’s—you know, we’re talking about a prediction of the future so there’s no point arguing over projections, except to the extent that the 150 or 160 severe injuries—I think the Minister mentioned—representing 5 percent of accepted claims seem to be very low given the information the select committee was given. I hope they’re right, because the fewer severe injuries that we have, the better.

But as she was going through those numbers, I was having a flashback to 2002 or so when I was chief executive at Mercy Hospital and president of the Private Hospitals Association—vice-president then. We submitted on the bill that changed the scheme from medical misadventure to treatment injury. I submitted that the cost estimates for the expansion of treatment injury from medical misadventure were heroically low, and that was as it turned out. The estimates that were projected for costs of treatment injury are now manyfold more than the projections that were made in 2002-odd.

I hope we don’t have a repeat of an underestimation, not because of the money, but because what that represents is, perhaps—two things. Obviously more harm than we want. But also—I say this carefully—ACC’s actually really good at projecting things; I think they’re missing the boat on this one, as they did with medical misadventure. So I’ll leave it there.

I would just say also—and it could come up with Jan Logie’s intervention on her amendment around mental health, which I won’t support, I’m afraid, but I completely understand the issue that that the member has been raising in select committee, and will again, which is that the risk is that ACC becomes the default health provider in this country as we expand the scheme—and the default mental health provider. The obstetrics side of our health system actually needs to continue to be the place where we do the primary care for those early injuries.

I’ll make this last prediction, actually, and it’s been a big bugbear of mine ever since I’ve been involved with ACC—and that wasn’t yesterday. The public health acute services levy—which I think is this year appropriated at about half a billion dollars; a little under—I reckon is about half the cost of what it costs to do the acute stage of accepted accidents.

Now what I don’t understand—it could can be quite helpful to get a sense of how ACC is going to deal with this. So the person admitted to a birthing unit or a maternity hospital is actually being paid for from Vote Health. What happens when the primary care—the acute care for a birthing injury—is provided by that same facility and a claim is subsequently accepted for information purposes? How is ACC going to know what costs were expended on the acute care that was required in those birthing suites? Because they’re basically there under one admission.

If I get hit by a car and get admitted to hospital, it’s automatically admitted as an accident-related acute case and will be subject to the Public Health Acute Services levy calculation. But in the birthing process, you’re already there for another reason. Suffer harm: primary intervention might be these for suturing, blood transfusions, admission to a surgical ward, perhaps, and all the costs encumbered on that. That becomes ACC’s responsibility. How is ACC going to discharge that responsibility to the public hospital and pay its portion of that care?

Now I think there’s a much broader issue around the Public Health Acute Services levy and when I’m Minister of ACC again, the officials can be sure that we’ll be diving deep into the weeds of how we ensure that our public hospitals are not underfunded—the accident-related acute gear.

💬 Nicola Grigg: Next year. Next year.

Yes, just 12 short months away, Nicola Grigg. That’s right.

I think that’s some homework for officials to do about how they’re going to get maternal acute care separated from the other things that the public maternity facilities are providing.

There was a lot covered in that; I don’t know if it was all completely related to Part 1. However, that broader issue that the member was talking about—that certainly is a broader issue, and isn’t covered in the bill and isn’t something that we’re going to be able to resolve here. I will say that, as Minister for ACC, when developing this up and thinking this through and working with our officials and policy team, I’ve also been having those conversations with the other relevant Ministers, including the Minister for Women, and the Associate Minister of Health who has responsibility for the Maternity Action Plan. And so we have been working together and thinking about the pressures in the workforce at the same time. It is important that those things are considerations.

Thank you, Mr Chair. In this contribution, I rise to ask some questions and have some discussion about the decision to have a defined list of birth injuries, while, again, acknowledging the significant progress that was made in the Education and Workforce Committee to ensure that the list covers the intent, as articulated by the Minister, of all birth injuries being covered.

But we had quite a lot of discussion about this as an approach, as opposed to one of the recommendations that birth be included within the definition of “accident” within section 25 of the Act so that there be a general cover for all birth injuries and that the exclusions would still be covered around babies—which I disagree with, and I’ll talk about that later—but also the boundaries around mental health—which, again, I disagree with, but would have enabled that but had a general cover.

Points were raised by submitters, and I particularly want to point to the submission of Dr Simon Connell and Dr Dawn Duncan, who are legal academics at the University of Otago who have a particular focus around the ACC scheme, so they have extensive experience of analysing how the system is working and how the law could deliver on the intent of the scheme. Their recommendation was for that change of definition in section 25. They saw that there was no principled reason for excluding birth injuries from the scheme on that broad basis and had a concern that the specified list approach is creating a novel approach to birth injuries, inconsistent with every other provision within the legislation.

So we’ve got gradual process which is treated as something that’s separate. But even for gradual process, there is a provision in the Act—so that’s a specified list for gradual process—that enables the case to be made for things that are not on that list, that are gradual processes.

So their very strong argument, which was supported by the Human Rights Commission and a number of submitters, was that there should be general cover, not a specified list, and that a specified list brings us into more definitional debates, more problems over delay in diagnosis, as well as diagnostic debates.

We heard somebody speaking from their own experience of trying to access ACC, and I think the words they had were that from their personal experience, the consequential diagnostic barrier is inequitable, and the evidence shows us that for Māori in particular, in terms of there being discrimination in the system in terms of diagnosis and being referred for support. So when we go for a list-based approach we risk amplifying that existing problem in the system.

It also increases the administrative costs. I do want to point to some of the research that’s telling us that the total annual cost of administration and rationing tools across ACC at the moment is estimated to be between $1.5 billion and $3 billion. It’s a huge proportion of the scheme. And that’s Warren Forster’s research that was recently published. So a huge proportion of the scheme is going into these assessment and rationing processes.

My concern is that by a defined list approach without a general provision clause, we risk increasing the cost to ACC. That was actually a point raised by—slightly tangentially—the New Zealand Public Service Association Inc., where they said in their submission that they’re “concerned … our members working at ACC and their colleagues may not be properly resourced to implement changes resulting from the amendments.”, because it is going to be really onerous. We want this cover, but general provision with internal appropriately co-designed general provisions, the Greens believe, would have been a better approach.

Another point I want to make that was raised consistently through the submissions is that this is a very Eurocentric and deficit-based approach to ensuring—[Time expired]

Thanks to the member for raising the questions around why we are having a list. I certainly have been adamant, as the Minister, that we want to make sure that all birthing injuries are covered. What was compelling to me were the arguments around clarity, the clarity that can come with having a list. Where things are murky with any system, including with ACC, is that it can provide inconsistent approaches, it can mean that those receiving the services are unclear of what is covered and what is not covered, and it can lead to, in the case of ACC, unnecessary legal challenges because of the fact that there isn’t the clarity that we need. So that was compelling enough for me to actually see that having the list, a comprehensive list, as being of value to not only the medical profession but also the women that may have an injury that needs to be covered by this legislation. And so I was swayed to be in favour of actually having a comprehensive list.

What I was also very pleased with was the work of the select committee and the work they did to really flesh out what is on that list. The medical professionals themselves have largely agreed that the list that we’ve ended up with will provide the comprehensive cover that we are seeking. So that gives me relief and confidence that the list has been fleshed out to the extent that it could be and will provide the clarity and cover that we’re all seeking.

What we have done is to—you know, taking into consideration that science does evolve; we could end up with more information—put a review period in here for the list, and we can look at whether or not anything has changed over a three-year period. In saying that, if science was to give us information earlier than the three years and something compelling came up, there’s nothing to stop someone making an amendment to add to that list. So I’m confident that where we have landed, and by having the list in place, we are actually providing the comprehensive cover, the clarity, and the certainty that these women need if they do end up in a position where they have an injury.

Thank you, Mr Chair. I thank the Minister for that, and we heard those arguments around clarity within the committee, but we were also a people who were familiar with that argument, and I include Dr Simon Connell and Dawn Duncan amongst others who heard that argument and said that, actually, they didn’t think that that would necessarily provide more clarity and part of what we heard about was the diagnostic list. Then we still had DHBs, and different hospitals used different medical language, so there’s actually potential for confusion and barriers over those diagnostic tools, and it would have been entirely possible to come up with a kind of equivalent that could have been co-designed with community and put in place at an operational level and could have addressed those issues while providing the general provision in law without the requirement. And I commend the Minister for the three-year review and the work we all did in the select committee to get to this point of having expanded it. We tested really hard about what might be missing but also with the knowledge that there hasn’t been much research in this whole area. Medical science is an evolving thing, but the evolution is not going to finish in three years, right? And do we really want to be requiring legislative change at every single point when medical knowledge improves or clarifies injury? I would say no.

I did just want to speak and give voice to the point made a bit more by submitters around this being a problematic construct, particularly for Māori. The point too is partly the individualism, partly the requirement for the specific diagnoses and the privileging of the medical system in that process of getting support and treatment, which is—and we were told by the advisers to the committee that actually there is no need for a Te Tiriti clause in this and that it will be fine; it will just be done operationally. But the view from Māori submitters on the bill was that actually this is an inherently problematic approach. We are saying—and I’ll quote from one of the submissions—“The fact that the bill focuses only on the birthing woman, not more widely and holistically on whānau or any injury or trauma potentially caused to them does not acknowledge a Māori world view or provide for the collective responsibility that we share with hapū and iwi, noting the colonialism and institutionalisation of birth has systematically fragmented Māori women’s spiritual, spatial, and corporeal experiences of birth and have led to poor birth outcomes for women and babies, coupled with generations of women and whānau who have been denied access to whānau support, mātauranga Māori, rongoā tikanga pertaining to maternity and to lands and waters being used for healing.”

This, I know, has come up at the Mana Wāhine hearings, and yet here we are in legislation, while those hearings are going on, locking in a confirmation of that model that we know is causing harm. I hope that this will be mitigated, and I’d love to hear from the Minister any commitment to mitigating it in prevention work and what ACC may pick up around the prevention of birth injuries to help mitigate this, but acknowledging that it will just be a mitigation. There were submissions noting that they saw this as really—I guess that probably speaks to that point.

I move, That the question be now put.

Thank you, Mr Chair. As signposted by Michael Woodhouse earlier, I would love to take the opportunity to speak to the amendment around the extension around mental injury. I do want to start, because I’m sure the Minister will do it anyway, but I’ll just take the moment to say that in the bill, while it’s not clear for people, and initially it was unclear to me, in terms of the extent of cover for mental injury that is included in this—actually, whenever there is a physical injury on this list and there is a mental injury, then there will be cover for mental injury, as through treatment injuries. That’s really, I think, important for people to understand and know because we want them to be able to access that support.

The point I would like to speak to today, though, is actually where there aren’t injuries on that list and yet there is a mental injury. I acknowledge that this is not a point where we’re going to get agreement with the Government, because the Government’s position is maintaining the existing boundaries around mental injury that exist within the ACC scheme, which is there needs to be a physical injury—it’s either, I think, section 21 in terms of sensitive claims or it’s a workplace-related injury. The Greens have a fundamental view that those boundaries are deeply problematic and are not working for our communities.

We know, in terms of perinatal mental health in this country, we have a real problem. Suicide is the leading cause of maternal death in this country. Fifty percent of women who suffer with anxiety or depression in pregnancy will develop perinatal depression. Twelve percent of pregnant women have severe anxiety or depression. And they’re separate issues; that is the broader context. But what we heard through the submission process was of people who had deeply traumatic births where there was not a physical injury. And one example was where somebody spoke of their friend’s experience, saying some difficult births can leave women labouring for days. This puts their nervous systems into high states of arousal for long periods. The post-traumatic stress disorder, which can result, can be very debilitating. One friend was exhausted from days of painful labour and then had to endure invasive medical interventions. These did not go well and led to her watching her blood shoot across the room at the same time as fearing for her life and the life of her baby. This led to many years of terrifying nightmares. That was a situation without an injury on this list. I do not get the logic of how that is different from an injury on this list, and it was not considered a treatment injury.

We also have heard the stories of women particularly in rural communities, where there may not be a birthing centre. I’ve heard this particularly from Queenstown, but I’m sure there are other areas as well where they need to be airlifted out under urgency, and if they have a partner, they’re often in a car driving, maybe with another child, not knowing if they’re going to live or die. And there’s no physical injury on this list at the end of that, but that is an entire family traumatised, and I don’t think the average person in the street understands why we wouldn’t get them the same support as we would get somebody if they’d also had a perinatal tear. I just don’t think it’s your average person’s logic to make that distinction, and I don’t think it understands birth in its wholeness and I don’t think it does credit to the sense and the importance of whānau, and particularly when in that situation and in others the midwife might get cover. It doesn’t make sense to me, Minister, and I understand existing boundaries, but sometimes it’s time to just blow them up and do what makes sense and is the best thing for our communities.

I do note the points the member has raised; I won’t be supporting the Supplementary Order Paper. I do believe, though, that there is a broader piece of work that needs to be undertaken with regards to accident compensation cover for mental injury. That needs to be done in a comprehensive way, rather than a bitsy way that might concentrate on one particular mental injury, as opposed to not concentrating on something else. I have said to ACC that I want that work to begin next year, but this is not the place to fix everything. This particular bill is to cover the physical injuries that come about from giving birth, and, as the member has pointed out, where there is a mental injury that ensues because of the physical injury, then that will also be covered. The more comprehensive, broader issues that the member is talking about can’t all be covered in this one piece of legislation, but I do agree there needs to be that work done on mental injury. And as I have indicated publicly, that will start next year.

Thank you, Mr Chair. I take this opportunity to make a short contribution and ask a couple of queries around the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill. Thank you, sir.

I’d like to turn my attention, Minister, to clause 8, which is around the “Personal injury caused by work-related gradual process, disease, or infection”. It was raised early on in the earlier debates on this particular bill that that was referring to work-related injuries or illnesses that were caused by the gradual process or disease as a result of workplace exposure.

Of particular interest to me at the time was the firefighters who are exposed to toxic fumes, and a range of toxic fumes, as a result of the work that they do, going into burning buildings. On entering those burning buildings, they’re never quite sure about what it is they’re going to be exposed to, and over time, unfortunately, many of our firefighters do end up with cancer as a consequence of constant exposure. In fact, the New Zealand Professional Firefighters Union said that cancer is the greatest killer of firefighters globally, but many struggle to get it covered by ACC in New Zealand.

I did take the opportunity to visit with the firefighters at their training facility in Rotorua with my friend and colleague the Hon Todd McClay, and a fantastic—

💬 Hon Todd McClay: Honourable.

Very honourable—very honourable.

💬 Hon Michael Woodhouse: Some days.

Yes. And it was at that facility that it was explained to us about the constant exposure to these poisonous gases, etc.

Now, in the bill, it was considered in the beginning about exposure to these toxic fumes and gases, and I just wonder why, Minister, it has not been specifically outlined in the bill, or did the select committee give consideration to this particular workforce to include it as part of this bill, as a work-related gradual process, disease, or infection? It seems quite clear from the research that’s been done, and the firefighters have even referred to the World Health Organization’s research—

CHAIRPERSON (Greg O’Connor): Ms Pugh, I’ve asked you to keep it narrower. We’ve been on firefighters now for three minutes, so unless there’s a specific question—

Yes, I’m talking to the exposure over time, which is the gradual process of disease and infection, and this is a particular workforce that is sensitive to this part of the bill. Can the Minister give us some feedback about the conversation that may have been had in the select committee? What was the information that was used, and did the consideration include that firefighters would be included in this bill, and can the Minister perhaps expand on section 30 to include that particular workforce? Thank you, Mr Chair.

I move, That the question be now put.

The question is—

💬 Hon Michael Woodhouse: Come on, Mr Chair. We haven’t even spoken to the Supplementary Order Papers. Point of order.

CHAIRPERSON (Greg O’Connor): All those in favour—

💬 Hon Michael Woodhouse: Point of order, Mr Chair.

CHAIRPERSON (Greg O’Connor): The point of order will not be on my decision to actually take a closure motion, will it?

💬 Hon Michael Woodhouse: Well, if we don’t have a conversation, the Speaker may well be recalled. And I think it’d be good to avoid that.

CHAIRPERSON (Greg O’Connor): We’re going to actually carry on with this motion.

💬 Hon Michael Woodhouse: This is outrageous. I’m out of here. What a load of shit, Greg.

CHAIRPERSON (Greg O’Connor): That member will stand, withdraw, and apologise.

💬 Hon Michael Woodhouse: No, he won’t.

CHAIRPERSON (Greg O’Connor): The member will leave the Chamber.

Hon Michael Woodhouse withdrew from the Chamber.

The question is that the Minister’s amendment set out on Supplementary Order Paper 238 be agreed to.

Amendment agreed to.

The question is that the Minister’s amendment set out on Supplementary Order Paper 218 be agreed to.

Amendment agreed to.

The question is that Jan Logie’s amendments inserting new clauses 5A, 8A, and 8B, and amending clauses 8 and 10, set out on Supplementary Order Paper 251, be agreed to.

The question is that Jan Logie’s amendment to clause 6(1) set out on Supplementary Order Paper 246 be agreed to.

The question is that Jan Logie’s amendment inserting clause 6(3) set out on Supplementary Order Paper 247 be agreed to.

The question is that the Hon Michael Woodhouse’s amendment to clause 6A set out on Supplementary Order Paper 245 be agreed to.

The question is that Jan Logie’s amendment replacing clause 7 set out on Supplementary Order Paper 249 be agreed to.

The question is that Jan Logie’s amendments to clause 8 set out on Supplementary Order Paper 248 be agreed to.

The question is that Jan Logie’s amendment replacing clause 10 set out on Supplementary Order Paper 250 be agreed to.

The question is that Part 1 as amended stand part.

Part 1 agreed to.

Part 2 Consequential amendments to regulations