NZ GOVERNMENT IGNORES UN COMMITTEE OVER ACC

Acclaim Otago (Inc)

PRESS RELEASE 16 JUNE 2015

For Immediate Release: 

Government ignores UN Committee

Acclaim Otago is disappointed, yet unsurprised, that the Government has again missed an opportunity to reform ACC with a human rights focus.

“The Government missed the point when we first reported in 2010, it missed the point last year in Geneva, and it has missed the point again today with this response.” Says Dr Denise Powell, spokesperson for Acclaim Otago.

The Government holds itself out as a world leader on human rights, but it has explicitly stated it will ignore the UN’s recommendations about ACC. Acclaim Otago anticipated this would be the case when it sought a recommendation for an ACC Commissioner.  

“New Zealand has international obligations: the UN Committee examined ACC and it has been found wanting. The Government has simply ignored that,” says Mr Warren Forster, Barrister, of Dunedin who co-authored Acclaim’s reports to the United Nations.

Mr Forster continues, “As we told the UN, we think the significant income the government gets from ACC presents a conflict of interest. Human rights cost money and the government publicly accepts it wants that money to get to surplus.”

The United Nations told the New Zealand government in October to assess ACC to ensure that its processes pay respect to human rights. By rejecting that recommendation, the government rejects the core principle of the Convention on the Rights of Persons with Disabilities, a convention, which it helped to draft.

“For the government to dismiss human rights out of hand is heartbreaking” says Dr Powell. “This will send a particularly negative message to the Accident Compensation Corporation about the Government’s priorities.”

Background

In February 2014, Acclaim Otago analysed the ACC system from a Human Rights focus and produced an interim report for the United Nations to consider in drafting the list of issues for New Zealand. The interim report is available here: 

Acclaim’s interim report to United Nations Committee

In April 2014, in response to Acclaim Otago’s Interim Report, the United Nations Committee on the Rights of Persons with Disabilities, the United Nations specifically asked the New Zealand Government in the list of issues:

14: Please explain whether New Zealand law provides access to justice for persons with disabilities engaged in the statutory dispute resolution process with regard to adequate funding, procedural fairness and reliable evidentiary procedures under New Zealand’s Accident Compensation scheme.

The Government responded explaining that it had a system of legal aid and review costs. 

Reply to the issues raised in paragraph 14 of the list of issues

70. The accident compensation scheme is delivered by the Accident Compensation Corporation (ACC) and provides comprehensive, no-fault personal injury cover for everyone in New Zealand, including overseas visitors. Individuals forego the right to sue for compensatory damages following injury, in return for receiving personal injury cover.

71. Dispute resolution is provided for under the statutory framework (part 5 of the Accident Compensation Act 2001) and this provides access for all people who wish to apply for a review of a decision made by ACC, including persons with disabilities.

72. When a review application is received by ACC, it is forwarded to the ACC unit that made the disputed decision for an internal review. ACC considers whether the decision issued was appropriate, including whether new information needs to be considered. If the dispute is not resolved, the unit will forward the application to an independent external organisation for a review. That organisation will determine, with the applicant, whether an alternative dispute resolution method such as mediation or facilitation is appropriate or whether an independent review hearing conducted by a reviewer should be held.

Funding

73. There is no charge to a client in applying for a review or any other alternative dispute resolution process,. These costs are met by ACC. In addition, clients who have disputes heard at review are usually awarded costs for example, to assist with the costs of advocates or support persons. Regulations set out the prescribed maximum amounts for costs and expenses on review. (the Injury Prevention, Rehabilitation and Compensation (Review Costs and Appeals) Regulations 2002) In summary, costs can be awarded for case preparation, reports, and other expenses incurred, including transport. Legal aid is also available in some cases.

74. The reviewer must award costs and expenses to the applicant if the review decision

is fully or partly in favour of the applicant, and may award costs and expenses if the

reviewer considers the applicant acted reasonably in bringing the review.

 Procedural fairness

75. The Accident Compensation Act 2001 (the AC Act) sets out general principles for

the conduct of the reviewer. The reviewer must:

• Act independently and disclose previous involvement;

• Comply with the Accident Compensation Act 2001;

• Comply with the principles of natural justice;

• Exercise due diligence in decision-making;

• Adopt an investigative approach while conducting the review in an informal, timely,

and practical manner.

76. In making a decision, the reviewer must look at the matter afresh based on the

information provided at the review, setting aside ACC policy and procedures, and decide

the matter only on the basis of its substantive merits under the Accident Compensation Act

2001.

77. An applicant who is dissatisfied with the outcome of the review can appeal the

decision to the District Court. Questions of law can be appealed to the High Court and then

to the Court of Appeal.

 Evidence

78. Each of the parties to the dispute can provide evidence to support their position,

including evidence that was not available at the time the ACC decision was made. The

reviewer can request additional information to assist their decision-making at ACC’s cost

for example, an additional medical opinion.

 Accident Compensation Appeal Tribunal

79. In April 2014, the New Zealand Government considered legislative changes to

enhance courts and tribunals, including replacing the District Court jurisdiction for ACC

appeals with a new Accident Compensation Appeal Tribunal. The new Tribunal would

provide quicker decisions while still maintaining a fair process. The proposed Tribunal is

intended to be accessible, efficient and affordable for all users, including disabled persons.

The proposed introduction of a Chair to oversee and lead the Tribunal’s operation is

designed to ensure consistent, fair and quality decision making processes.

The United Nations Committee then received a shadow report from Acclaim Otago and a survey analysis providing the voices of hundreds of people with disabilities. The shadow report is available here:

Acclaim’s Shadow Report to the United Nations

The survey data is available here:

Acclaim’s Survey Data for United Nations

At the United Nations in Geneva in September 2014, Acclaim Otago presented its key findings and asked the committee to make recommendations to the Government, the Government for its part admitted that it could do better in relation to ACC. The UN did not accept New Zealand’s claims and recommended that New Zealand deals with the access to justice problems and human rights. 

The United Nations Committee recommended in its concluding observations that:

Access to justice (art. 13) 

1. The Committee notes that, in New Zealand, persons who acquire a disability through injury only have recourse to compensation via the Accident Compensation Corporation. The Committee notes that persons who have suffered injuries are concerned over the lack of access to justice to pursue their claims. There is concern about the limited amount of legal aid funding that is available and about the discretionary basis upon which legal costs are awarded. There is also concern that the Accident Compensation Corporation machinery lacks a human rights focus.
2. The Committee recommends that the State party examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus.

1. The Committee notes that the Government is considering the establishment of an accident compensation tribunal to replace appeals to the District Court. The Committee is concerned that there has been insufficient consultation with persons who have acquired disabilities through injury, and with their representative organizations, about the establishment and operation of this tribunal.
2. The Committee recommends that organizations representing persons with disabilities be consulted about the proposal to establish an accident compensation tribunal. The Committee also recommends that the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal.

1. The Committee is concerned that no specific training of judges by the Institute of Judicial Studies has been given either on the Convention or on the requirement that justice be accessible to all persons with disabilities, including those with intellectual and those with psychosocial disabilities. 
2. The Committee recommends that the Institute of Judicial Studies, in conjunction with disabled persons’ organizations, run training programmes on the Convention and on the rights of persons with disabilities who come before New Zealand courts and tribunals.

The Government’s response to the United Nations issued today was:

12. The Committee recommends that the State party examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus (refer paragraph 24).

This recommendation is accepted to the extent that legal aid is available to all persons who cannot afford a lawyer and are seeking to challenge, through a review, court or tribunal, a decision made by the Accident Compensation Corporation (ACC). Subject to other Government priorities, consideration will be given to a review of regulations governing costs/expenses for review hearings.

13. The Committee recommends that organizations representing persons with disabilities be consulted about the proposal to establish an accident compensation tribunal. The Committee also recommends that the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal (refer paragraph 26).

There will be an opportunity for submissions on the proposal to establish an Accident Compensation Appeal Tribunal, and its procedures. Within the broader tribunals reform process, it is considered that full, robust and effective consultation with stakeholders could be achieved.

NZ GOVT COMPO OFFER A KICK IN THE GUTS FOR ABUSE VICTIM

The Gisborne man says he has suffered from stress and depression from the effects of his suffering over 25 years. File photo / NZ Herald

A man abused as a ward of the state 25 years ago is incensed about the $12,000 compensation offer made to him, and the process used by the Ministry of Social Development.

The 40-year-old Gisborne man has been dealing with the ministry's historic claims resolution process for the past five years and has gone into their fast-track process, which began late last month.

Upon settlement, claimants receive prompt financial payment and a letter of apology.

The man said the $12,000 offer worked out to be the equivalent of $480 a year over the past 25 years.

"Do you know how that makes me feel? It's a kick in the guts," he said as he struggled to hold back tears.

"I received a [fast track] letter dated May 29 and I have a month to make up my mind.

"Where's the justice?"

He had suffered from stress and depression from the effects of his suffering over 25 years, he said.

The anguish had led him to make bad decisions in his life.

He has a legal document that shows a Family Court judge in Hawke's Bay sentenced him into care in what he says was a breach of the Children, Young Persons and Their Families Act by bypassing a family group conference.

He has other issues with the ministry.

His own son was abused while in state care in 2010 and 2011, he says.

As a result, his son ran away with two other abused victims.

But against family wishes, he had been placed back in the same institution.

"There was no investigation. My son was victimised.

"I don't want my son to go through the same crap as me, so that he has to go through an historic claims process in 25 years."

He has no confidence in the ministry.

The man said he did not consider the offer to be genuine compensation.

He did not want to accept the offer but he had a large family to support.

"I want that $12,000 ... but I don't want it."

The ministry has received 1572 claims since 2004 and 583 have been resolved, with payouts totalling $8.4 million.

The average time taken to resolve a claim is 27 months, while 207 claims have been in the system for more than five years. There are 862 people eligible for the faster settlement process.

The Confidential Listening and Assistance Service has provided support services to more than 700 people as part of the historic claims process.

Close to $1.9 million in funding over two years will enable the ministry to support the service.

The Government aims to settle all historic claims by 2020 for those who came into state care before December 31, 1992.

The man said the Confidential Listening and Assistance Service was too close to the Ministry and lacked independence.

He has declined to be represented by Cooper Legal, a law firm representing hundreds of people abused as children in Social Welfare care.

Sonja Cooper, principal of Cooper Legal, said hundreds of claimants were subject to settlement processes that were inconsistent, biased and harmful to the wellbeing of the people they are intended to serve.

"The historic claims team does not have the statutory powers of the UK Inquiry," she said.

"It is not independent or impartial, and turns a blind eye to what was, and remains, a system where children were subjected to systemic physical and sexual abuse."

Ms Cooper said historic claims team interviewers were telling abuse victims that they believed the victims' accounts of physical or sexual abuse - only for the Ministry to write to the victim later and tell them that their allegations of abuse were not accepted.

"It is hard for a victim to accept that one part of Government can apologise for abuse perpetrated on them, and another part of Government denies that it ever happened," said Ms Cooper.

by Gisborne Herald staff  10/6/2015

ACC TO RETHINK ABUSE LINK

A judge has ruled in favour of an ACC claimant in a case expected to have "enormous" ramifications for the way mental health patients are treated.

In the decision, released recently, Judge Grant Powell in the Wellington District Court agreed with a psychiatrist who said a man's schizophrenia had been caused by trauma from sexual abuse in childhood.

Two ACC-employed psychiatrists had earlier said there was no evidence schizophrenia was anything other than a biological condition passed down through families and so the man's abuse had nothing to do with his condition.

However, the judge agreed with a growing body of research that says traumatic events can cause psychosis.

The research includes the work of clinical psychologist John Read, who has been at the forefront of research to show a relationship between childhood sexual and physical abuse and psychotic symptoms, including schizophrenia.

Read said the ramifications of the decision were "enormous".

"It is gratifying that years of research on this issue is impacting the judicial system. These rulings will also make it harder for psychiatrists to ignore disclosures of sexual abuse by severely disturbed patients, or to dismiss them as either irrelevant or imagined.

"This is a significant victory for all those patients and researchers who have been saying for many years that the experiences which biological psychiatry believes are symptoms of a brain disease called schizophrenia are best understood as responses to adverse life events.

"Very often the voices abused people hear are the actual voices of the perpetrator of the abuse."

Read said it was "alarming" that the two ACC psychiatrists "either knew nothing about the many studies documenting the relationship between child abuse and psychosis or were trying to mislead the judge".

The man referred to in the finding had been covered by ACC for his history of sexual abuse but it was schizophrenia that had stopped him from working. He had sought to gain an independence allowance from ACC in December 2010. An independence allowance covers people who are permanently impaired as a result of an injury. The maximum weekly allowance is $84.97.

In 2011, ACC decided it would not cover the allowance because it said his schizophrenia was not linked to his covered injury - a significant history of sexual abuse between five and 13.

He was assessed by a psychiatrist who prepared three reports but concluded sexual abuse "is not likely to be the material cause of the current condition. There is no evidence of sexual abuse as an etiological factor [cause] in schizophrenia."

His claim was declined and despite an appeal and subsequent reviews it was again found his incapacity related to his schizophrenia, which ACC said was a health issue unrelated to the sexual abuse.

After another appeal, psychiatrist David Codyre provided a report that completely disagreed with the previous psychiatrists.

"With due respect to my colleagues who undertook the prior psychiatric reports . . . their opinion that sexual abuse is not causally related to schizophrenia is not evidence based."

Judge Powell said ultimately he found Codyre's analysis "a more compelling and inherently more credible cause of the appellant's schizophrenia".

Read said the finding would reduce the frequency with which psychiatrists dismissed abuse disclosures as irrelevant or imagined and increased the probability of people being offered trauma-based psychological therapy instead of anti-psychotic medication.

New Zealand Association of Psychotherapists public issues spokesman Kyle MacDonald said the judgement was encouraging and could mean entitlements for many other people.

"The reality is there a lot of people who would be in the mental health system who would have a diagnosis of a psychotic disorder who may now be entitled to access some treatment under the ACC.

"For a long time there has been a mindset of how schizophrenia and psychotic disorders are treated, which is that it is a biological disorder which needs to be medicated and managed.

"The reality is that actually these people are underserviced in terms of therapy and psychological intervention. This is a way to get people more therapy and more psychological help."

ACC said it would consider whether this decision "has any wider impact" but took the view it would have "limited" value as a precedent and it would "continue to carefully consider each person's unique situation and circumstances".

- Sunday Star Times  by Sarah Harvey  8/12/2013