Government reveals proposed ACC changes to cover birth injuries

At the moment only birth injuries that are the result of a treatment injury are covered by the scheme.
At the moment only birth injuries that are the result of a treatment injury are covered by the scheme. Photo credit: Getty Images.

By Anusha Bradley of RNZ

Thousands of women injured while giving birth will be eligible for ACC cover, under proposed changes being revealed today.

The government estimates it will help between 17,000 to 18,000 women each year, and cost ACC around $25 million annually.

In an exclusive interview, ACC Minister Carmel Sepuloni said it was "the right thing to do".

"It's about fairness, and it is about making sure that women in this country get access to the ACC scheme to the same extent as what men do, and birth injuries can be incredibly serious."

At the moment only birth injuries that are the result of a treatment injury are covered by the scheme.

Some 85 percent of women experienced perineal tearing during birth, yet only around three claims a month to ACC had been successful since the agency reviewed its policy guidelines in August last year, according to the Ministry for Business, Innovation and Employment's Regulatory Impact Statement.

This was because injuries defined in the Act as the application of force, or resistance, external to the body did not apply to obstetric injuries because a baby was not considered an external force until it was born.

"It seems unfair that because of the definition of them being caused by an internal force as opposed to an external force, that they would be discounted from being covered by ACC. And so I know that this will make a huge difference for women moving forward who do actually experience birth injuries," Sepuloni said.

The definition of accident would remain the same, but it was proposed a list of seven defined physical birth injuries, developed in consultation with ACC and medical experts, be included in the Act.

This would improve gender balance, fairness and equity in the ACC scheme, she said.

"We know that women make fewer claims than men, have fewer injuries covered by the scheme than men, and each woman's claim costs the scheme a third less than a man's on average in entitlements."

The 2021 Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill, will also include a reversal of changes made by the former National government in 2010. It will be introduced to Parliament later this year with the expectation of being passed by mid-2022.

The change would make it easier for women to get timely treatment no matter where they lived, obstetrician and Auckland University lecturer Dr Michelle Wise said.

"Instead of having to only rely on their public service available at their DHB, which we know from research is quite variable around the country, this enables women to have a whole other source of cover for things like physiotherapy, which is really important to get to help recover and have less symptoms."

Susan*, who had her perineal tear claim revoked last year after ACC reviewed its policy, was happy in the future women would not have to go through what she had. She had not been able to afford to pay for the physiotherapy she needed while she waited for ACC to review her case, though after five years it had very recently approved her mental injury claim linked to the birth.

"This absolutely needs to happen. Some women are left with only minor injuries, but some, like me, are left with really debilitating injuries that will last the rest of their life. It is good to know they will have that support and get physio and home help through ACC."

Green Party MP and ACC spokesperson Jan Logie also welcomed the change, but said it was disappointing that all birth injuries, including those suffered by babies, and birth trauma were not included.

"We are calling on the government to listen to more than 34,000 people and 22 organisations who signed our open letter for all birth injuries and trauma to be covered, and we are at this stage a bit concerned that possibility the approach will create an overly technical and exhaustive but limited list of what injuries can be covered, and that that might risk creating more complexity, uncertainty and ultimately gaps in care."

The 2021 Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill:

The defined list of maternal childbirth injuries has been developed with ACC and medical experts to focus on acute maternal childbirth injuries suffered by a birthing parent, caused by mechanical trauma during labour and delivery.

These injuries include:

  • 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

The AC Act currently excludes these injuries because they do not meet the definition of 'accident' in the ACC Act.

Unlike other injuries, maternal childbirth injuries are not considered to be caused by "the application of a force (including gravity), or resistance, external to the human body. This is because, until a foetus is born, it is legally considered to be internal to the human body.

For those few severe cases where individuals are incapacitated for the longer-term, the additional benefits of the scheme include access to non-means-tested weekly compensation, home help, and rehabilitation.

Other changes to ACC include:

  • Correcting a technical anomaly in how the ACC Act interacts with the EOLC Act. This applies to where claimants with a terminal illness covered by ACC chooses assisted death under the EOLC Act. The amendment would ensure legislative certainty that dependants would be eligible for fatal injury entitlements under the Scheme following assisted death for a covered terminal condition.
  • Lowering the threshold for injury-related hearing loss cover from six per cent to five per cent to ensure claimants receive the care they need, while maintaining a fair baseline for coverage.
  • Requiring ACC take into account what someone earned before an injury, when determining if they can return to work. This means certainty for claimants that they will be supported until they are able to return to a suitable job.
  • Increasing the number of ACC Board members from eight to nine allowing a wider range of specialist and stakeholder representation.
  • Clarifying the section 30 test for work-related gradual process, disease or infection cover, and put the burden back on ACC to prove that a disease or infection is not work related.
  • Excluding Veterans' Support Act 2014 weekly compensation top-up from abatement against ACC's weekly compensation payments.
  • A number of technical changes to better align ACC with the IRD, clarify definitions in the AC Act or move them into Regulations and improve the process around interest on levy overpayments on interim levy assessments.