Stewart Barbara: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — Second Reading 
Stewart Barbara: Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3) — Second Reading 
[Volume:625;Page:20166] 
BARBARA STEWART (NZ First) 
: 
 On behalf of New Zealand First I rise to speak in support of the Injury Prevention Rehabilitation and Compensation Amendment Bill (No 3). New Zealand First believes that there needs to be a stronger insurance component in accident compensation legislation and that claims and compensation for medical misadventure needs to be monitored to ensure that claimants are treated fairly. We believe that the process definitely needed to be streamlined. The system needs to be fair and equitable and to have a no-fault component because it takes away the punitive environment that has reigned previously. Nobody expects to go to hospital for an operation and then leave hospital with a totally different injury as a result of his or her treatment. We are very aware that that can happen. Under the current system a claimant is expected to prove fault by a medical professional who then has to be found to be at fault in order for any compensation to be considered or awarded. This is a very lengthy process and it does not work well at all. We want to see compensation awarded when and if it is needed. 
We realise too that this is a very significant bill with a significant cost for New Zealand and for New Zealanders. Accident compensation is already hugely costly to everyone although we are very aware that the Accident Compensation Corporation (ACC) itself has significant investments right throughout New Zealand. It is to be hoped that this bill does not increase the costs again to businesses and to the self-employed. We do not want to see the costs associated with this legislation being greater than those already anticipated by the Government. I know that the Department of Labour has calculated that the costs will increase by $8.6 million annually and that there will be a one-off transitional cost of $12 million. So we do not want to see those costs skyrocket. 
We are pleased to see that this bill does specify a general no-fault approach to accident compensation for treatment injuries because this is a big step forward. At the Health Committee we heard from many submitters who were totally dissatisfied with the ACC and with the treatment that they had received from the ACC when they were trying to establish a claim of medical misadventure. In most cases the claimants just gave up and did not proceed further. They basically put it into the too-hard basket. The long delays in the process and the stress suffered by the claimant and by the practitioner can be very negative. It is not pleasant to hear stories of people going into hospital with high hopes of having an injury corrected and then coming home with something far worse or more debilitating. Hopefully this bill will assist many of those people. 
The accident compensation law has not been very helpful in the past. It has actually stopped professionals from learning from the mistakes made because of the blame emphasis that previously existed. We believe it is absolutely vital that health professionals be very proactive that they demonstrate that their organisations take the provision of very high-quality service seriously and that when they identify any faults—as inevitably they will—they act very promptly to rectify them. 
We will be most interested in the day-to-day management of the new section 33. We will be watching that area with interest because this section defines “treatment” with the broadest possible scope. It includes treatment diagnosis and even the decision not to provide treatment in a timely manner. So potentially any situation where a health professional fails to diagnose a condition immediately and correctly and then to treat it correctly could be construed as treatment resulting in a treatment injury. That could even apply perhaps to the non-treatment of the thousands of people waiting for elective surgery throughout this country. 
The new section 32(2)(c) effectively ensures that there is no fault on the part of the district health boards as it excludes from the definition of “personal injury caused by treatment or treatment injury” “personal injury that is solely attributable to a resource allocation decision:”. This is the area where all the debates will arise. 
The 26 February issue of the 
 Listener 
 gave two very good examples that fit into this category. Two women went to the doctor for an examination. In one case the doctor’s diagnosis missed the woman’s malignant tumour and her surgery was delayed for 6 months. If as a result of the delay some treatment injury occurs she will be entitled to compensation. In the second example the woman’s doctor identified a tumour but because of resource shortages she waited 6 months for treatment—about three times longer than is recommended. In this instance the woman has no compensation entitlement because of the legislation’s resource shortfall exemption although this woman had exactly the same treatment experience as the other. There is no mechanism under this new scheme to compensate the victim for such a failure or to assess the competence of the manager who fails. Nor has there been in the past an incentive to improve managerial performance. 
The question of what is a result of a resource allocation decision is a very grey area and we can see why. It is a very technical area that we would like to discuss further in the Committee stage. Where will this end? We can see that lawyers and litigators will be very tempted to take many such cases into the courts and to fight them long and hard. It is really to be hoped that after the new scheme has been put into place the Government will take the next step of investigating how it can remove this unfair resource exemption clause from the legislation as eventually this does need to occur. Any injury that is caused by a failure of resources should be considered a treatment injury and should also be covered under this legislation. 
We would also like to see the acupuncture groups in New Zealand agree on a unified professional body to represent their professional standards so that they can come under the Health Practitioners Competence Assurance Act. We discussed this aspect throughout the select committee process. That really has to happen. 
This bill is a step in the right direction and New Zealand First does support its going to the Committee of the whole House. We want to see a better outcome for patients who are disadvantaged by medical misadventure. We want to make the system more streamlined we want to see a better outcome for these people and we want to see doctors actually learning by means of the no-fault component of the legislation.