Brown Peter: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — First Reading 
Brown Peter: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — First Reading 
[Volume:619;Page:14699] 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I am impressed by the former Minister’s speech. I thought she gave a very good speech and covered the facts very well. But what she did not tell the House was that 5 years ago when the Labour Party first came to power and wanted to renationalise accident compensation New Zealand First made representations to that member and the current Minister at the same time in the same room and told them to do something about medical misadventure. 
Lianne Dalziel 
: I wasn’t the Minister then. 
PETER BROWN 
: Yes I sat with the member— 
Lianne Dalziel 
: I wasn’t the Minister 5 years ago. 
PETER BROWN 
: The member sat in the same room alongside Ruth Dyson. We had a cup of coffee and I told the member how concerned New Zealand First was about not introducing medical misadventure. I tried to introduce it into the accident compensation legislation and everybody voted it down—everybody. 
Lianne Dalziel 
: I wasn’t the Minister. 
PETER BROWN 
: The member was not the Minister but she was in the loop. 
It is an absolute disgrace that it has taken 5 years for this bill to get to the House. I personally am delighted with this bill and my colleagues are very very pleased indeed. I am delighted because I have been the New Zealand First spokesperson on accident compensation for quite some time and I have had to listen to case after case of accident victims who have suffered at the hands of doctors hospitals or whatever—and it makes sad listening. I am certain that Sue Bradford will agree with me that it is not pleasant to hear the stories of people who go into hospital to get something fixed and come out a damn sight worse than when they went in. 
I am pleased to see this legislation come to pass but the honourable former Minister who had that portfolio for only 6 months said that she instigated this review 2 years ago—a review that told us exactly what we knew. It told us no more than we already knew 5 years ago. Nevertheless we are pleased that the bill has finally got to the House although we are not overly convinced it will do everything it should. We will be fighting at the select committee to make it more all-embracing. For example will it cover mental illness? Does anybody know? Will a person who is wrongly diagnosed with a mental illness be covered by this? Will the Accident Compensation Corporation front up to any sort of damage that results from or is caused by people with mental illness? It will not. Do members over there— 
Steve Chadwick 
: It’s about medical injury. 
PETER BROWN 
: It is about doctors making mistakes and if a doctor makes a mistake with a mentally ill person will this measure cover it? It will not. Should it cover it? We think it should. Given that the Government has sat on its hands for 5 long years before starting to do anything will the legislation be in any way retrospective? I think that the answer is no. 
Steve Chadwick 
: This is about medical injury. 
PETER BROWN 
: I say to the honourable member who is shouting out across the House in a most undignified manner that that is not good enough. There have been many cases in the last few years of medical misadventure. For those who do not quite understand it I point out that medical misadventure embraces medical mishap and medical error. 
Steve Chadwick 
: It tidies those up. 
PETER BROWN 
: It tidies them up but will it in any way be retrospective? 
Steve Chadwick 
: No never. 
PETER BROWN 
: No it will start on the day it starts. 
Steve Chadwick 
: A line in the sand. 
PETER BROWN 
: I thought the member had more heart more compassion. New Zealand First is a party of compassionate people. We feel for accident victims. We certainly listen to them. Can we fix this? Yes we can and we will endeavour to get a degree of fair retrospectivity into this bill. 
Sue Bradford 
: Is your party going to use that again in the next election? 
PETER BROWN 
: I think we might. Clearly it has impressed members here so I think we might. But by the time the next election arrives we might well have fixed everything. One never knows. This measure is a reasonable attempt to fix some concerns about accident compensation. We want to recognise that and give the Government some acknowledgment. The fact that it has taken 5 years for the bill to get here is by the by certainly in its books. This bill goes on to address a number of other things. 
Steve Chadwick 
: That member needs chelation therapy. 
PETER BROWN 
: I am glad the honourable member raised it! I tell her that I have spoken to a number of people who have had chelation therapy and not one of them speaks ill of the system. 
Barbara Stewart 
: Will the ACC pay for it? 
PETER BROWN 
: That is a good question. I want the Minister of Health— 
Darren Hughes 
: We could do a whip around. 
PETER BROWN 
: The members over there think it is a joke. I tell them that when people have chelation therapy for potential heart problems or whatever they do not think it is funny at all. I suggest to those members that there might be more in the system—more in chelation therapy—than that member over there gives it credit for. I would like the Minister of Health who is a forward-thinking Minister to instigate some sort of trial of that system. That is all I am asking for and I will attempt from time to time in this House to get her to recognise it. 
For a few minutes I will tell the House about a lady a Mrs Karen Griffen from Whakatane who had what one might call a very innocuous accident—she ate a pineapple lump. I can see that Judy Turner knows of the case. She came to see me some time ago. Eating a pineapple lump nearly killed her. The doctors did not know how to treat her and neither did the hospitals. They virtually said she was a head case and that she should go home. She felt she was nearly dying. 
 I will read some extracts from this article. Karen Griffen claims that doctors at the hospital refused to treat her when she was critically ill dismissed her illness as psychological and sent her home to die. Finally a local general practitioner fixed it after all the anguish this lady went through. But will this bill fix this situation in the future for someone else? Mrs Griffen is OK now I am pleased to tell the House as far as I am aware. But will this bill fix that? No it will not. 
Steve Chadwick 
: It was ingestion of a pineapple lump. It was not an injury. 
PETER BROWN 
: I tell the member that if someone is nearly dying they do not care whether it is because of the ingestion of a pineapple lump or something else. The doctors did not diagnose it correctly and she suffered hugely as a result. I would tell that member Steve Chadwick to show a little bit more compassion. We should look at the width of this type of injury if one likes and see whether we can cover more people rather than just confining it to a few. This is a good opportunity for the House to look at it in a positive manner. 
Steve Chadwick 
: Do an amendment. 
PETER BROWN 
: I will put forward an amendment if necessary. 
Darren Hughes 
: A pineapple amendment! 
PETER BROWN 
: That man makes a joke of it. The young fellow has a lifetime in front of him and he makes a joke of a lady who nearly died as a result of a fairly innocent type of thing. I think the member should hang his head in shame. 
If I have one disappointment it is that this bill will go to the Health Committee. That is a disappointment because I will not be on that select committee and I have taken an interest in accident compensation for quite some time. But I have a very able colleague who will keep the Government members in line. She is a very compassionate lady and she will ensure that this bill is modified to suit New Zealanders. Another part of me is actually pleased that the bill is going to the Health Committee because I know that that committee can handle it promptly and we can get this bill passed promptly whereas the Transport and Industrial Relations Committee—where the bill should probably go—is bogged down with other work. So part of me is pleased about where this bill is going and part of me is disappointed. New Zealand First is pleased to see this bill come to the House and we will certainly support its referral to select committee. I seek leave to table the article. 
Document by leave laid on the Table of the House. 
SUE BRADFORD (Green) 
: 
 The key component of this bill constitutes a significant and positive reform in the way the Accident Compensation Corporation deals with medical misadventure cases and on that basis the Green Party will be voting for it to go to the select committee today. 
For many years there have been huge problems for anyone trying to make a compensation claim under the medical misadventure provisions as thousands of injured people can testify. As well as all those people whose claims are turned down I believe there are even more who have never filed a claim because of the evident hopelessness of getting anywhere given the stringent conditions that are applied. The present system has also created tensions and difficulties within the practice of medicine with doctors seeing every claim as a potential threat to their personal and professional future. This has not been useful at a time when the health system is finally beginning to learn that it would be better if the sector could learn honestly from mistakes and slippages made rather than putting the emphasis on allocating blame and protecting individuals from legal action. 
Before I go any further with medical misadventure and other aspects of this bill however I would like to deal with the potentially controversial subject of acupuncturists. One important aspect of the legislation in front of us this afternoon is that it amends the definition of acupuncturist in terms of who can treat people under accident compensation legislation. The proposal is to extend the definition of acupuncturists to include members of the New Zealand Acupuncture Standards Authority who have a health professional qualification and either a 1-year full-time postgraduate qualification in acupuncture or a level 7 diploma in acupuncture. At present only members of the New Zealand Register of Acupuncturists are eligible for accident compensation treatment payments. I understand that the New Zealand Register of Acupuncturists is bringing legal action against the Government because of the Government’s move to expand the pool of professional acupuncturists eligible for accident compensation payments. The Green Party intends to carry out its own further investigations into this issue and our ongoing support for the bill is dependent on working towards a reasonable outcome in this area which we hope will be satisfactory for all concerned. 
I turn now to the medical misadventure provisions of this legislation. The Green Party is as I said earlier delighted to see that at last there will be an end to the anomaly in which medical misadventure was the exception to the otherwise no-fault nature of the accident compensation scheme. Currently cover for medical misadventure is restricted by section 32 of the Injury Prevention Rehabilitation and Compensation Act 2001 to what is defined as medical mishap medical error and the transmission of infection caused originally by medical misadventure. At the moment medical mishap is seen as an adverse consequence of treatment that is severe and rare. 
We believe that this has given rise to situations of serious injustice over and over again. There are many examples but I will give just two. In district court cases in 1998 and 2000 the court upheld decisions to decline cover for medical mishap in cases of the severe back condition arachnoiditis caused by a myelogram dye test. The Accident Compensation Corporation had relied on the incidence of arachnoiditis not being a sufficiently rare outcome of the myelogram procedure to meet the test for medical mishap to deny claimants access to income compensation. As a result of the Accident Compensation Corporation declining cover backed up by the court people whose lives had been ruined by a genuine medical mishap were denied accident compensation support and of course on top of that were eligible only for sickness or invalids benefits if they did not have a partner earning during the relevant period. The use of the severity and rarity criteria has meant that arbitrary and unjust decisions have been applied to many claims. The sooner we can bring an end to this parlous situation the better. 
The second subset of medical misadventure is medical error. This is currently defined roughly speaking as personal injury resulting from the failure of a registered health professional or organisation to provide treatment at a standard of care and skill that could be reasonably expected in the circumstances. There are significant difficulties with this from the point of view of injured people. The principles behind this are totally at odds with the no-fault basis for the rest of the accident compensation scheme. 
 Health professionals are often reluctant to cooperate in determining claims because of the possibly significant and deleterious consequences to them personally. This concept of medical error is markedly out of step with a sensible and structural approach to solving problems within the health system. On top of that those types of claims can often involve massive delays of up to 9 months or more for the unfortunate individuals who are trying to get help at a time when they may well be suffering significant pain and incapacity. 
The proposal in this bill to replace cover for personal injury caused by medical misadventure by personal injury caused by treatment from 1 February next year will help to address most of those anomalies and the Green Party welcomes that change. However within that area we do have one or two concerns that we hope might be dealt with during the process of select committee consideration. First of all there is a proposition within the bill that will exclude from cover personal injury that is solely attributable to a resource allocation decision. To give one example of what this might mean the provision could be applied to someone who is denied accident compensation cover when the recurrence of a metastatic cancer that is caused by delays in the provision of radiation therapy for a primary cancer occurs solely because there are not enough radiation therapists or equipment to carry out the treatment in a timely manner. Unfortunately that is a very real kind of situation in New Zealand at present and we would like to see the bill amended to remove that exclusion at least for injuries of such severity that they currently qualify as medical mishaps—for example those causing death hospitalisation for more than 14 days or significant disability for more than 28 days. 
Secondly The Green Party has concerns about the time limit on making decisions on claims of medical misadventure. At the moment the maximum time limit for the corporation to make a decision on a claim is 9 months and that is retained in the new bill. That time limit has been a major concern for claimants who are kept in limbo often with no support at all for lengthy periods. The Green Party is keen to see the bill amended so that the Accident Compensation Corporation will be allowed a shorter time limit to process claims. 
I move now to one or two other features of this bill. We welcome the amendment to provide discretion for the Accident Compensation Corporation to provide entitlements in areas where it is currently not liable to do so. Current legislative restrictions mean that the Accident Compensation Corporation is prevented from granting discretionary entitlements even when it clearly would be beneficial to both the claimant and the corporation to do so. Examples include the 3-year limit placed on vocational rehabilitation and the 28-day limit on the provision of attendant care while outside New Zealand. However quite strangely the new bill takes away with the same hand that gives with its proposal to exclude such discretionary decisions from the review and appeal process. The Green Party will oppose any of the Accident Compensation Corporation’s decisions being protected from an application for review or an appeal by a claimant. That is especially important given that there are already very limited rights of review in this area. 
Finally there are a number of other fairly minor reforms to accident compensation in this bill that the Green Party does support. Those are for example amendments relating to cover for mental injury due to sexual abuse prior to 1 July 1992 changes to the definition of earnings as an employee and an amendment to the definition of “accident” which corrects a rather strange anomaly resulting from certain court decisions. 
This is a bill whose overarching purpose is well overdue and I hope the select committee process will allow members to improve it where it is not quite right. I congratulate the Minister on her persistence in bringing about long-needed changes to the way in which the Accident Compensation Corporation deals with medical misadventure and I look forward to hearing what submitters have to say.