The expansion of the ACC Act to cover birth injuries has been long awaited by many, but Dr Simon Connell questions whether the changes go far enough, and what they mean for the future of the scheme.
Comment: The Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill has passed its third reading. This is a cause for celebration. About 28,000 more people each year will get ACC cover for injuries suffered during childbirth, which makes the scheme more equitable.
But it also gives us reason to pause and think about what this change means for the future development of the scheme.
Birth injuries didn’t previously count as accidents because the definition of “accident” usually requires a force external to the human body. That definition, and the scheme in general, is better at including bad stuff that happens to men. The expansion of cover to birth injuries improves gender equity in the scheme. I commend the government on making this change. It will make a real different to the lives of many people.
But I’m not sure what this move means for the bigger picture of changes to ACC.
First of all, for those hoping for an end to the accident/illness distinction and ACC-level assistance for people suffering from disabilities, the introduction of birth injury cover suggests that that’s not coming any time soon.
The current ACC Act, including the restrictive definition of accident, is based on the version of ACC that National introduced in the 1990s. There have been some expansions since then, such as widening the scope for cover for injury caused by treatment in 2005, and the introduction of cover for mental injury caused by witnessing something awful at work in 2008.
Like the recent expansion to include birth injuries, these changes are good in that each one has brought more people within the ACC scheme. Those people are better off compared to what they would otherwise have received. But, these changes are small changes compared with the bigger picture. They all reinforce the idea that accident and illness deserve different responses.
When we combine this with the Government’s proposed social insurance scheme, which would apply when work incapacity arises due to disability, and the establishment of Whaikaha - the Ministry for Disabled People, the future isn’t looking bright when it comes to a move away from the disparate treatment of accident and illness in Aotearoa New Zealand.
The second reason for pause is how the new law works. I was surprised to see Labour post on Facebook that “All childbirth injuries are now covered by ACC,” because that’s not exactly what the new law covers.
Firstly, only injuries suffered by the person giving birth are covered, not the baby. Secondly, the way that birth injury cover works is by setting out a list of injuries, and when someone has suffered an injury on the list resulting from internal forces during labour and delivery they get cover. If someone has an injury caused by birth that’s not on the list, they miss out.
To be fair, the list is a relatively good faith attempt by the Government to capture all injuries currently understood as being caused by birth. Some additional injuries were added to the list featured in the original bill following submissions. And, the list must be reviewed after three years, so it can take into account developments in medical understanding (although immediately).
But, couldn’t the Government have just added birth to the definition of accident, so cover for birthing injuries could work like say sporting injuries, where there’s no list? Then it really would cover all birth injuries. That was a common suggestion in many submissions on the bill, and I’ve previously said that’s what could and should have been done. So why didn’t they?
A rationale for the list approach can be found in the report that the Ministry of Business, Innovation and Employment provided after submissions on the original Bill, which says:
The reason internal forces have been excluded from the definition of accident until now is because they represent the boundary between accidents and illnesses, whereby internal forces are associated with illness… [T]his bill is a recognition that some internal forces are accidents rather than illnesses, but only those occurring in a very narrow set of circumstances (ie, during labour and delivery). As these circumstances are very specific and time-bound, the cover boundaries need to be more precise and clearer…
And:
Because childbirth is one part of a complex but normal health process, and because there are many other internal forces acting in the human body, several exclusions would need to be included to clearly maintain the boundary between cover for accidents and other illnesses/health conditions.
In short: childbirth is abnormal and closer to illness than regular accidents. But that only makes sense if your idea of normal accidents is a sexist one based on stuff that typically happens to men. If we accept that childbirth injuries belong in an accident compensation scheme because they’re injuries caused by accident, we should be questioning the internal=illness association.
We need to pause at this expansion of ACC that makes the scheme better for women because, ironically, it reinforces the idea that woman-stuff like childbirth is weird, more closely associated with illness than man-stuff, and needs a special approach. Steps to make the scheme more equitable should try and remove the sexism in the scheme at the root, not just provide additional cover.
