What’s with the Government’s technical approach to extending ACC to cover some birth injuries?
The Government plans to expand ACC to cover some birth injuries. That’s good. But it’s doing it in a daft way. Instead of just changing the definition of accident, it’s also providing a list of the only injuries that can get cover as birth injuries. I explain why this is unnecessary and problematic.
Why are birth injuries not already included?
The legal answer is: because the definition of accident requires an external force and the foetus is considered part of the birthing parent’s body during birth. ACC does provide cover for some injuries caused during birth, but only as a ‘treatment injury’ which usually requires that there’s been a failure on the treatment side or something unusual happen. A small person getting pushed out of the body of a another person often causes injuries without there having been any failure on the part of any treatment providers present. As long as the injury was caused by birth and can’t be counted as treatment injury, the scheme doesn’t care about how serious the injury is.
But why is the law that way? There are two important factors. The first is that the current definition of accident can be traced back to changes made by National in the 1990s, as a response to the broad definition of accident in the original scheme, which I’ve discussed before. The introduction of the requirement for an ‘external force’ was aimed at excluding illness conditions.
The accident/illness distinction has been with the scheme from the beginning. By ‘accident’, we usually mean an event that is bad and unlooked-for from the point of view of the person experiencing it. This can be contrasted with an ‘illness’ condition that can be seen as developing gradually due to a person’s innate characteristics, rather than being an event as such. Before we had ACC, another reason to distinguish accidents from illness is that a victim of an injury by accident had a much better chance of being able to sue someone else for compensation.
The accident/illness distinction is, of course, questionable. Many illnesses arise from external causes, which could be one-off infections (for example covid-19 from inhaling droplets). Many conditions are caused by a combination of a person’s genetics and environmental factors. And, of course, even if you can make the distinction, it doesn’t mean that people should receive vastly different assistance from the government. But we’ll set that aside for now – here I’ll take it as a given that we have an accident compensation scheme, and address the question of whether birth injuries should be included.
The second reason that the legal definition of accident excludes birth is, in a word: Patriarchy. The scheme is much better at including bad events that happen to men because, in short, it was designed by men for men (more specifically for men working in the 20th century), and as a result is not great in terms of what it provides women, which has been pointed out a number of times before.
To be clear, what I mean here is not that a group of men sat down and deliberately chose to exclude women because they wanted to exclude women. Perhaps that’s what he was defending the scheme from when former ACC Minister Iain Lees-Galloway said it was unfair to characterize ACC as being designed by and for men. Neither do I mean no women have ever been involved in setting ACC policy.
But I do think it is fair to say that the history of ACC, much of which has a big impact on the state of the scheme today, has been dominated by men thinking about men’s experiences. And that’s why birth injuries are excluded: they weren’t on the radar for men thinking about “bad events that happen to people”. The provisions for work-related cover are also better at capturing conditions suffered in conventionally male occupations.
We have a problem, what’s the solution?
So, we have a problem: the definition of ‘accident’ excludes a bad injury-causing event that women typically experience, because history. It seems to me that the obvious solution to this problem is to amend the definition of accident to include birth. The definition of ‘accident’ actually already includes a whole bunch of things that count as ‘accident’ without needing an ‘external force’ which can include, for example, inhalations and radiation burns.
If a person suffers an injury during birth, they can then lodge a claim with ACC. Just like any other ‘personal injury by accident’ claim, ACC will then need to consider whether it’s plausible that that injury was caused by the accident and accept or decline the claim.
But … that’s not what the Government is proposing
Instead, the Government’s proposing a special approach for birth injuries. As well as amending the definition of accident to include birth, the proposal accepted by cabinet would set out an exhaustive list of injuries that could receive cover as birth injuries (levator avulsion, uterine prolapse, obstetric fistula (includes vesico-vaginal, colo-vaginal and uretero-vaginal), labial, vaginal, vulval, clitoral, cervical, rectal and perineal tears, ruptured uterus during labour, obstetric haematoma of pelvis, pudendal neuropathy).
I can see no good reason for doing things this way. As a friend put it: where’s the list of acceptable injuries to have suffered on the rugby field? Why should a birthing parent who suffers an injury during birth that doesn’t happen to be one of the ones on the list miss out? What’s the justification for treating this type of accident (which typically happens to women) differently, when that’s not normally how the scheme works?
To be fair, there is a precedent in the scheme for having a list of conditions that are treated differently. Schedule 2 of the statute contains a list of occupational diseases, and it’s easier for someone with one of those diseases to get cover compared to the normal process for claiming you have a work-related gradual process or illness condition. But that’s quite a different scenario to the Government’s proposal for birthing injuries, where the list is limiting who can get cover instead of making it easier for some claimants.
What’s the rationale?
A rationale is given in the MBIE Regulatory Impact Statement (RIS) that preceded ACC Minister Carmel Sepuloni’s proposal to cabinet. The RIS considered a few different ways of bringing more birth injuries into the scheme. MBIE considered establishing birth injury cover as a distinct category from ‘personal injury by accident’. I agree that it’s better to bring birth into the definition of accident. MBIE also considered making it so that a foetus counted as an ‘external force’ but thought that would make the scope of cover less clear. I agree.
MBIE was essentially weighing up two alternatives: amend the definition of accident to include birth or to amend the definition of accident to include birth and prescribe a list of injuries.
MBIE’s reason for recommending the latter is be that the boundaries of cover are less ambiguous. That’s probably correct, but the clarity in cover is achieved at the expense of excluding people who genuinely suffered injuries as a result of birth.
In my view, the main source of the ambiguity in introducing birth injuries is going to be the words you use to define that type of accident. The current suggested wording seems to be
‘mechanical trauma caused by labour and delivery’. Whether or not there’s a list of injuries, there are likely to be court cases testing the boundaries of the definition. There’s also a risk that the listing of specific conditions adds complexity and ambiguity, if there’s room to argue what’s included in those conditions.
So, the list of conditions does not really provide that much more clarity. It also risks becoming out-of-date, since all it can do is capture current medical thinking. That means it cannot adapt to developments in how we understand birth trauma. If the government is going to insist on a list of injuries, it should be done through making a new Schedule, because that way the list would be easier to amend.
What about the other kind of birth injuries?
Green Party ACC spokesperson Jan Logie expressed disappointment that the proposals did not go further, and pointed out that the proposals exclude a category of birth injuries: those suffered by the person being born rather than the person giving birth. Like injuries suffered by the birthing parent, birthing injuries suffered by the person being born range from minor to serious conditions that could require lifelong care. Currently, injuries to the baby are only covered if they qualify as a treatment injury.
If we accept that birth injuries involve an accident from the point of view of the person giving birth, it is not clear to me why we would not also consider the same to apply to the person being born. I have some time for the argument that the scheme should be expanded through incremental change rather than giant leaps. But, if we make this change then surely the case to include birth injuries to the baby will become an even stronger one.
Conclusion
Any expansion of ACC is better than the status quo. But there’s something off to me about addressing inequitable treatment of women by introducing a special approach that only applies to injuries suffered by women. That is exactly the sort of thing we should be trying to get rid of in the scheme. Introducing a list of covered birth injuries will not make the boundaries that much more clear, and any clarity is outweighed by the unfairness of excluding birthing parents who suffer injuries during birth that are not on the list. I am to make a submission when the proposal comes before a Select Committee, supporting the expansion of the scheme to birth injuries, but urging the Government to take what I think is a simplier and better legislative approach. I suggest that anyone else with a view on this also make a submission.
(Thanks to Dawn Duncan for comments on a draft version of this piece.)