In trying to defend their decision not to make a special extension of the ACC scheme to include victims of the mosque attacks, the government seems to be pushing a narrative that the ACC scheme is about physical injuries. I have two objections to this. First, it’s ahistorical. Second, the physical/mental divide is dubious and problematic.

Content note: describes terrorist attacks and other awful things happening to people.

 

Why is this debate happening – a short history?

The Christchurch Mosques Terrorist attacks happened. A number of people suffered mental injuries as a result. The only scope for those people getting ACC cover under the current rules is either: if they were working at the time; or personally suffered a physical injury. So, someone who developed post-traumatic stress disorder after witnessing a family member being shot does not qualify. ACC support is more desirable than that available under the health system, as it includes the possibility of compensation for lost earnings, and potentially lump sum compensation for permanent impairment.

Then ACC Minister Iain Lees-Galloway, with the support of officials, quickly devised a plan to get ACC-level help to the victims who suffered mental injury but did not qualify. The ACC statute already allows the government to basically say to ACC: “we’ll pay you to act as if these people have ACC cover”. This was seen as faster and more straight-forward than amending the ACC legislation. 

MBIE prepared a series of talking points for Lees-Galloway to bring to his colleagues in Cabinet. These included:

• “There is a gap that needs to be addressed”;

• “There is a group of victims of the Christchurch attacks who are not receiving equivalent Government support to other similar victims, solely because they were not physically injured”;

• “ACC is best placed to quickly address the gap … as it:

o   Is providing cover to similar victims already; and

o   It can provide cover to non-resident victims more easily than the Welfare and Health systems, particularly ongoing support.”

• “ACC can provide services if I direct them to do so, and the Government specifically funds it”.

Lees-Galloway took the proposal to Cabinet. But, Cabinet did not agree. Treasury was opposed, in part because the move would create a “large risk of opening ACC up to further expansions”. See the excellent reporting from David Williams at newsroom for a more detailed description of what happened. 

The government has continued to receive criticism for the decision. In March this year, Andrew Little defended the decision on RNZ, stating that “The thing about ACC is the Government doesn’t get to instruct ACC to do whatever it likes.” Several people, including me, pointed out that that’s not really accurate – MBIE briefed Iain-Lees Galloway literally stating that “ACC can provide services if I direct them to do so, and the Government specifically funds it”.

Little also said that ACC is there to deal with “physical injury by accident”. This idea that ACC isn’t really about mental injuries seems to be a key part of the government’s narrative defending their decision. Little raised it again after the Federation of Islamic Associations recently released a report which was critical of government’s decision and Treasury’s role in it. He released a statement saying:

The proposition supported by FIANZ, ie, extending compensation for mental harm not related to personal injury by accident, would amount to a significant change to the ACC model we have had in place since its inception in 1974. The Government is not considering such a change to ACC

It’s this statement that I want to respond to. First of all, it’s ahistorical. Second, the mental/physical divide is a false dichotomy, and a bad one to pursue at that. I should note that I’m not exactly sure what the FIANZ proposal is, but I am responding to Little’s statement in the context of the continued defence of the decision to reject Lees-Galloway’s proposal. 

 

“ACC is for physical injuries” is ahistorical

 The original ACC scheme of the Accident Compensation Act 1972, which commenced in April 1974, provided cover for “personal injury by accident” which was defined as including:

            The physical and mental consequences of any such injury or of the accident

 That “or” means that the original scheme provided cover for the mental consequences of an accident, even where the victim did not personally suffer a personal injury. 

The victim must still have experienced an ‘accident’ event themselves. So, someone who simply heard of a family member’s death in an accident would probably not get ACC cover.

Under the original scheme ‘accident’ was not defined in detail the way it is now, and basically an ‘accident’ was something untoward and unexpected from the point of the view of the victim. Here are some examples of cases which received cover under the original scheme:

• A woman watched her son die in hospital after awful injuries were inflicted upon him by a gang in what the High Court described as “a savage and prolonged beating and torture”; and

• A woman suffered a psychiatric breakdown during a “rigorous” management course and was found to have developed a serious mental disorder.

If the mosque attacks had happened under the original scheme, witnesses who developed mental injury would have been within the ACC system. To the extent that Little’s statement suggests otherwise, it’s misleading about the history of the scheme.

So, what changed? The short answer is that, back in the 90s, the then National government was concerned about the overall cost of the scheme and how to fairly fund it. As a result, they made a number of changes including having the scheme distinguish between physical and mental injuries by having different and narrower grounds of cover for mental injury.

The 1990s version of ACC only provided cover for mental injury in two circumstances: where the mental injury is a result of a physical injury to the victim; and mental injury resulting from sexual abuse or assault (which does not necessarily involve physical injury). A third category of “work-related mental injury”, for witnessing traumatic events at work, was added in 2008 by the then Labour government.

So, if Little wanted to appeal to the history of different treatment of mental harm under the scheme, he should have said something like:

This would be a significant change to the ACC scheme since the National Party implemented a less generous and more insurance-based version of the system in the 1990s. 

Doesn’t have the same ring to it, though, does it?

 

The physical/mental divide is dubious and problematic

 In the case I mentioned earlier about the stressful management course, the Court of Appeal said:

It would be a strange situation if cover under the Act for a person suffering serious mental consequences caused by an accident were to depend on whether or not some physical injury however slight also is sustained. Further it would create major difficulties should it be necessary in particular cases to separate physical injuries.

This describes precisely the position we are now in. I want to highlight two reasons that we should be moving away from the physical/mental distinction in ACC, rather than entrenching it.

The first is that physical/mental is a false dichotomy. “Mental injury” conditions have a physiological basis, even if we’re only just beginning to understand it. There’s also an increasingly complex picture emerging about the environmental and genetic factors that lead to the development of mental illness that suggest physical factors are involved. For some conditions, there is room to argue about whether they should be classified as ‘physical’ or ‘mental’ injury. Currently, chronic pain syndromes are generally treated as mental injuries, so to get cover someone needs to identify a separate physical injury. Even though something is going on with someone’s nerves that produces pain, that’s not considered to constitute a ‘physical injury’. So if someone develops chronic pain after a fall, there’s no cover under the ACC scheme unless a distinct physical injury is identified.

Second, even assuming that the physical/mental distinction is workable, there are good reasons not to make it. Mental injuries can cause incapacity and require treatment just as physical injuries can. The accident compensation recognises this: “physical injury” and “mental injury” are different types of “personal injury” that a person can have and both can lead to entitlements to treatment, rehabilitation, home help, child care, compensation for lost earnings, and so on. Once a person has cover, the system responds to the needs generated by their particular injury, whether physical or mental. ACC does not provide compensation for trifling and transitory mental harm – but neither does it do so for trivial physical injuries that resolve without any need for treatment and cause no time off work. Lump sum compensation is only available for serious cases of permanent impairment – whether for physical or mental injuries.

There is no reason to treat people suffering mental injury as belonging to a less deserving category, or to portray them as not having really suffered an injury, as the Prime Minister arguably did when she told John Campbell that the group missing out were “not the injured”. As a society we are increasingly becoming aware of the importance of mental health. That should not be undermined by entrenching a physical/mental distinction within ACC.

Furthermore, research has suggested that mental illness rates are not uniform across different genders and ethnicities. The current approach to mental injury cover may well contribute to the present system’s bias against women, Māori and Pasifika.

 

Final comments

I have some sympathy for the government here. Expanding ACC requires finding the money to do so, as I’ve discussed before. That’s hard. Big expansions require big money. The conservative approach of incremental expansion is less expensive, but there will always be another group objecting that cover was not extended far enough to include them. But the perfect is the enemy of the good – not having devised a perfect way to implement a big expansion is not a good reason to hold off ever making any smaller ones. 

But, in discussing the expansion of ACC, the government should not hold out the idea that narrow cover for mental conditions has always been part of the fabric of the scheme. That does not reflect the history of the scheme. And, although treating mental injury as belonging to a special category requiring different treatment is part of the current scheme, that’s something I’d hope the government moves away from rather than embraces.