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Date: Wed, 27 Apr 2005 10:18:23 +1200 From: Geoff McLay Subject: Special Law Review Issue on New Zealand Accident Compensation
I thought that some list members might be interested in the following special issue of our law review. This issue which has taken some time to publish contains the papers presented at the December 2003 ACC conference. With the issue published in 2002, it represents what we believe is a major resource in the scholarship of New Zealand's unique Accident law system.
Geoff This issue is available for NZ$30, to law-review@vuw.ac.nz
A
Brief Introduction to Medical Misadventure Advancing
in Employment: The Way Forward for Vocational Rehabilitation Ending
Fault in Accident Compensation: Issues and Lessons from Medical
Misadventure New
Dynamics of Risk and Responsibility: Expanding the Vision for Accident
Compensation Medical
Misadventure and Accident Compensation in New Zealand: An Incentives-Based
Analysis The
Australian Picture Beyond
Woodhouse: Devising New Principles for Determining ACC Boundary
Issues The
Future of Community Responsibility Policy
to Protection: The Role of Human Nature and System Nature in Preventing
Patient Injury Horizontal
Equity for Disabled People: Incapacity from Accident or Illness
Prevention
Strategies: New Departures - A Union Perspective
A
Brief Introduction to Medical Misadventure This article examines the development of medical misadventure law in New Zealand. It discusses the various pieces of legislation impacting on the definition of "medical misadventure" as well as considering the punitive damages cases that are emerging outside ACC against allegedly negligent health professionals and organisations. The author states that the difficulty in devising an appropriate system of accountability lies in the special trust relationship between patient and doctor.
Advancing
in Employment: The Way Forward for Vocational Rehabilitation While the Injury Prevention, Rehabilitation and Compensation Act 2001 re-establishes the ACC scheme on firmer foundations, there are still unanswered questions regarding the rights of individuals with permanent partial disability involving an incapacity for their previous occupation. While the existing entitlements appear to work well for the majority of injured workers, the basic goals set by legislation for vocational rehabilitation still allow the termination of support to be based upon a capacity for any suitable occupation, regardless of the availability of actual employment. No regard needs be given to claimants' long-term skill development or earning potential, let alone to their aspirations to advance themselves in employment. We do not even know what effect the present vocational rehabilitation provisions are having on claimants' incomes and sustainable employment. In a policy environment that stresses the need for a high-skill, high-productivity economy, and that seeks not to widen social inequalities, the present rehabilitation goals seem inconsistent. Further, it will be shown that they do not meet International Labour Organisation (ILO) standards.
Ending
Fault in Accident Compensation: Issues and Lessons from Medical
Misadventure This paper suggests that emphasising prevention and rehabilitation are the key directions that the ACC system should move in the future. Compensation should be phased out in favour of rehabilitation as the primary means of remediation. Additionally the author recommends removing inequity in the system by phasing out accidents as the basis for entitlement and replacing it with an entitlement regime based on injury outcomes. This discussion is located within the context of the treatment of medical misadventure under the ACC system.
New
Dynamics of Risk and Responsibility: Expanding the Vision for Accident
Compensation A holistic approach towards risk management must recognise the interconnectedness of economic and social structures. In this article, Gaskins focuses on the concept of "network societies", which look to increase communication and organisation within their sphere of influence. While recognising that networks have the ability to regulate the distribution of risk across economic groups in society, Gaskins highlights the potential for networks to displace risk onto vulnerable sectors, thus essentially increasing risk levels for those outside the network. In the realm of health and safety, this can push the responsibility for occupational accidents onto already burdened families and communities. The development of the ACC system in New Zealand originally embraced a coherent approach to risk management. Gaskins argues that this approach has become displaced, and should be re-established as the foundation of the ACC system. This article does not attempt to proscribe a way forward for ACC, but rather aims to highlight areas of particular concern, which require consideration in relation to the further development and advancement of ACC in New Zealand.
Medical
Misadventure and Accident Compensation in New Zealand: An Incentives-Based
Analysis This article discusses the role of incentives in reducing the occurrence of medical misadventure. The author argues that appropriate incentives may induce the practice of insuring appropriate levels of precaution by sharing the costs of insufficient levels of precaution between those with the power to exert clinical precaution (practitioners) and monitor and enforce its exertion (administrative agencies), and the victims who otherwise bear the costs of inadequate levels of precaution being taken. The respective ability of tort-based and no-fault systems to achieve this level of care is discussed, and then applied in the New Zealand ACC situation. The author concludes that from the available evidence, incentives associated with a fault-based system are extremely difficult, if not impossible, to replicate in a no-fault system. This is even harder to achieve when public funding of both the ACC and health systems further reduces the incentives potentially available when individuals must meet the cost of their own treatment and liability insurance.
The
Australian Picture Australia faces a climate of change with accident compensation following recent high profile personal injury cases, the collapse of two major health insurers, and the release of the Ipp Committee Report. This paper follows Australia's response to these developments, focusing on New South Wales' initial reform of tort law, and suggests that the current and proposed changes may cause more harm to an already fragile system.
Beyond
Woodhouse: Devising New Principles for Determining ACC Boundary
Issues This paper argues that there is a need to identify new, mid-level principles that provide guidance as to how to draw the boundaries of ACC for as long as it remains a scheme of limited scope. The Woodhouse principles are not suited to this task as they point towards a universal scheme, embracing both injury and illness. The author believes that it is necessary to adopt a principled approach to what is included in ACC and what is left outside. The paper concludes by suggesting that these new principles should be based on a consideration of the nature of the dual public/private responsibility for incapacity and that where the question, "is it legitimate to leave this category of incapacity to the private sphere?" is answered negatively, there is a case for extending the scope of ACC coverage, even if this means transgressing the boundary between injury and illness.
The
Future of Community Responsibility This paper considers the future of community responsibility - the central philosophical principle of the 1967 report of the Royal Commission concerning compensation for personal injury in New Zealand (the Woodhouse Report). Central to the report was the advancement of earnings-related benefits free of all income or means test. Community responsibility was developed by the Royal Commission as the entire basis and principle for its recommendations. This principle has been traced to international instruments like the Universal Declaration of Human Rights. The Australian Woodhouse report proposed a similar version of the principle but the response in the two countries differed. In Australia it was argued that collective responsibility would be the death of individualism whereas in New Zealand the principle was never really attacked and was not seen as alien to the country's culture. A problem with the notion of community responsibility in both reports is that it is difficult to see how to limit it. In New Zealand the responsibility was restricted to injuries and not extended to sickness, which creates glaring social inequalities and discrimination. However it seems unlikely that this situation will change in the immediate future because of the lack of public disquiet about the issue. In the future, policy in the area may be affected by human rights norms which conflict with the current situation where eligibility for support is based on the manner in which the disability was acquired.
Policy
to Protection: The Role of Human Nature and System Nature in Preventing
Patient Injury This article examines theories and research relating to medical error. It looks at the human tendencies to err, to blame, and to trust. In light of the professionalism of health practitioners and the uniquely complex nature of the health system, the author encourages a focus on professionalism rather than consumerism. ACC's abandonment of the concept of medical error is consistent with this approach to patient safety.
Horizontal
Equity for Disabled People: Incapacity from Accident or Illness
The current dual system of benefit provision and service delivery for disabled people has led to substantial horizontal inequities between those on the ACC register and those receiving income-tested social security benefits. Whilst there are often distinct differences in the nature of the clientele between these groups, they often have similar requirements, but can receive quite different treatment. The Disability Strategy offers the prospect that a more unified system will be developed, initially in terms of service provision, especially rehabilitation and access to health care. The move to a combined benefit structure raises issues about the fundamental nature of social security, though equality of access to second and third tier benefits should minimise the degree of conflict between earnings-related and flat-rate benefits. From the perspective of disabled people, the major issue is access to non-income support, ranging from access to equipment to health care, education and employment.
Prevention
Strategies: New Departures - A Union Perspective This
paper provides a trade union perspective on the changes to the New
Zealand statutory framework for injury prevention during the 1990s,
in the context of the political, social and economic environment
of the time, and the measures taken since the election of the Labour-led
government in 1999 to legislate employee rights, foster applied
injury programmes on an industry basis, and to acknowledge injury
prevention as a community responsibility. It concludes that these
"new departures" are essentially those identified by the
Woodhouse Royal Commission in 1967.
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