A City Possessed: the
Chapter 3.1, Pages 88-94.
Lynley Hood
Lynley Hood : Author of A City Possessed
Lynley Hood, A City Possessed: The
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The aim of
the 1974 ACC Act was to provide prompt and effective treatment for all accident
victims. But, during the passage of the Bill through parliament, two provisions
for lump-sum compensation were added (one for physical disability, the other
for ‘pain and mental suffering' and ‘the loss of capacity for enjoying life’)
as trade-offs for the abolition of the right to sue.
As with
all accident-compensation schemes, ACC carried the risk of inadvertently
encouraging its beneficiaries to maximise their agony in order to maximise their
gain. Opportunists (like the man who sought compensation for having a cottonbud
lodged in his ear, even though the bud was quickly removed and no injury was
suffered) could be relatively easily identified. Claimants suffering from
compensation neurosis posed a greater problem. After relatively trivial
accidents, such claimants develop disabling symptoms which are unresponsive to
medical treatment, but which improve dramatically once money changes hands. In
his book on the ACC Act, Judge Blair observed:
It must be expected that the introduction of the Accident
Compensation Act will increase the incidence of compensation neurosis. The Act
gives the right of compensation for accidents to persons who previously had no
such rights, e.g. housewives and sportspersons... It accordingly must be
accepted that accident or litigation neurosis will become more common. [29]
The original Act provided cover for ‘the physical and mental
consequences’ of ‘personal injury by accident’. Sexual assaults were covered by
the legislation, subject to the Corporation being satisfied that an assault had
taken place and an injury had been suffered. However, in response to concerns
that rape victims could be denied ACC-funded treatment if they showed lithe or
no evidence of ‘actual bodily harm’ the definition of ‘actual bodily harm’ was
extended to include ‘pregnancy and mental or nervous shock’ where these
occurred as a result of ‘rape’ (or, after 1985, ‘sexual violation’), ‘sexual
intercourse with a girl under twelve’ or ‘infection with a disease’. Other sex
crimes, like attempted sexual violation and indecent assault were not itemised
in the ACC legislation until 1992. Nonetheless, as a result of precedents established
when rejected ACC claims were appealed, the range of sexual abuse claims
accepted by ACC at the time the Civic Creche case arose in 1991 far exceeded
those itemised in the legislation.
Claimants
had to satisfy ACC that they were genuinely injured (and not malingering), and
that the injury was caused by an accident (and not by disease, infection or
aging). In rape claims the ‘actual bodily harm’ was usually in the form of
‘mental or nervous shock’. So the ACC assessor had to determine whether the claimant
really did suffer from ‘mental or nervous shock’, and whether the shock really
was the result of rape.
A further
complication was that ACC was, in theory, a no-fault scheme, so the rights and
wrongs of claims were not usually investigated. However, with claims involving
sex crimes or medical error, even if ACC was satisfied that the event had
occurred (sexual intercourse in the case of a rape claim, medical intervention
in the case of a medical error claim), the claimant was not eligible for
compensation if the intercourse was consensual or if the medical intervention
was appropriate but had failed to achieve the desired result. In both cases,
ACC had to be satisfied that the perpetrator was at fault before compensation
would be paid.
Interestingly,
ACC has always handled medical error claims and sexual assault claims very
differently. This difference reflects the influence of two very different
groups of treatment providers. In terms of feminist stereotypes, the medical
treatment providers could be characterised as powerful, wealthy, white,
middle-class and male, while sexual abuse treatment providers could be
characterised as powerless, poor, oppressed and female. If this is indeed the
case (and the stereotypes undoubtedly have some validity) then a comparison of
the outcomes of medical error and sexual abuse claims suggests that the
allegedly powerful providers have had less influence on the policies and
practices of ACC than the allegedly powerless ones.
To
understand the relative influence of these two groups we need to first
understand what is meant by `natural justice'. Legal textbooks describe the
principles of natural justice as minimum standards of fair decision-making
imposed by common law. Over centuries of legal precedents these principles have
been refined into two cardinal rules: that no person shall be condemned
unless he/she has been given notice of the allegations against him/her and a
fair opportunity to respond, and that the decision-maker shall have no material
interest (by way of gain or detriment) in the outcome. Centuries of legal
precedents have also established that the principles apply to any
administrative decision (and not just to court proceedings) in which a person
may be adversely affected. [30]
From the
inception of ACC, whenever a medical error claim was received the alleged
perpetrator was notified and invited to comment, all relevant evidence was
considered and independent advice on the claim's validity was sought. According
to Lynda Angus, head of ACC's Medical Misadventure Unit (MMU), the unit
receives around 2,500 claims per year. When the claim involves no more than one
person's word against another it is normally rejected. This approach embodies
two elemental concepts of justice: the first is that anyone accused of an offence
should be presumed innocent until proven guilty; the second is that, in the
absence of corroborating evidence, it is often impossible to determine whether
or not an offence has occurred. In all, about 40 percent of claims are
accepted, but most of these are for medical mishap (i.e. for a serious, rare
and unforseen complication of a medical procedure for which the health
professional is not to blame, but which is deemed to be an `accident' and
therefore eligible for ACC assistance). Only 15 percent of claims accepted by
the MMU are for medical error.[31]
Accurate
statistics for sexual abuse claims are not available because the Sensitive
Claims Unit (SCU) does not have an effective recording system, but, according
to Lynda Angus (who heads both the SCU and the MMU), the SCU receives around
12,000 claims per year. 'Working on feel and anecdotal evidence we think we
accept around 85 percent. The only claims we decline are those that clearly
don't fit the Schedule [the list of sexual offences covered by the 1992 ACC
Act] or those for which we never get enough information,’ she told me .[32]
The
believe-the-victim philosophy that underpins this high acceptance rate means
that, in relation to sexual offences, ACC has effectively replaced the
presumption of innocence with the presumption of guilt. This approach makes
sexual assault claims easy to administer. When you believe the victim, you
don't need any input from the alleged perpetrator (in fact he is never invited
to comment, or even advised that a claim has been lodged). You don't need to
investigate the claim. You don't need independent advice on its validity. You
just need an ACC assessor to accept it. Lynda Angus explained:
We don't go around questioning whether people have been
sexually abused or not... We occasionally get people who have been named - or
think they've been named - as perpetrators who ring up and say, `I believe so
and so has lodged a claim and it's all false'. We don't actively pursue that
because we feel that a person who has gone to the lengths of going to a doctor
and saving, `I want to lodge a claim,' and going to a counsellor and going
through the whole story, must have some psychological need, and that we should
help them deal with it.[33]
It was not
always so. Throughout the ‘70s, decisions on ACC cover for rape were largely
left to the courts. If the alleged offender was found not guilty, it was ACC
policy to reject the claim. Then, in 1980, a landmark ACC Appeal Authority
decision changed everything.
It seemed
like a clear-cut case of rape. The man admitted that the woman had struggled
during the assault. But the woman was a teenager who had spent the day in the
pub before going off with a gang member, and the unsympathetic Christchurch
jury probably felt that it served her right. As a result of the not-guilty
verdict, ACC rejected her claim, but the decision was overturned on appeal.
Judge Blair ruled:
The phrase `within the description of [in the ACC Act],
where it applies to rape, means that a complainant... does not have the onus on
her... to prove beyond reasonable doubt that rape had been committed. She need
go no further than to satisfy the Commission that what happened has the
ingredients of rape. These ingredients are penetration of the female by the
male without her consent.[34]
Over the
following decade, Judge Blair's phrase ‘the ingredients of rape’ was used to
argue that non-penetrative indecencies should be covered by ACC, even though
his decision shows that he had a much narrower definition of ‘the ingredients
of rape’ in mind.
Following
that landmark judgment, verdicts in criminal cases were disregarded by ACC, and
the burden of proof required for the acceptance of sexual assault claims went
from ‘beyond reasonable doubt’ to ‘the Corporation must feel an actual
persuasion that entitlement exists’.[35]
By 1987,
the range of sexual assault claims acceptable to the Corporation included: ‘. .
. any sexual or intended sexual act, or experience, which is forced onto an
adult or child without their consent . . . providing the assault happened after
1 April 1974.’ [36]
Sexual
assault victims could claim counselling costs, compensation for loss of
earnings, medical and dental fees, transport costs, payment for damaged
clothing and lump sum awards of up to $17,000 for ‘permanent damage to bodily
functions’ and up to $10,000 for ‘loss of enjoyment of life’. In practice, most
sexual abuse claims were for counselling costs and `loss of enjoyment of life'.
As a
matter of policy, ACC required treatment providers to be professionally
qualified. Among those providing counselling, general practitioners,
psychiatrists and psychologists had statutory registration, and members of the
New Zealand Association of Psychotherapists, and the New Zealand Association of
Child Psychotherapists, were bound by the standards, ethics and disciplinary
procedures of their professional bodies. These practitioners were paid a fee
for service by ACC.
By
contrast, most sexual abuse counsellors had had no formal training and were not
registered practitioners or members of a recognised professional body. But most
of them worked for sexual abuse treatment centres like Help (in Auckland and
Wellington) or START (in Christchurch), and each centre had at least one
qualified professional on its management team. On that basis, the treatment
centres, rather than their individual counsellors, were accepted as ACC
treatment providers and reimbursed for fees claimed on behalf of their
counsellors. Between the 1986-87 financial year, and the 1988-89 financial
year, total ACC payments to counsellors escalated from $147,308 to $1,205,677.
Seventy percent of those payments went to counsellors working for sexual
assault treatment centres.[37]
Lump sum
payments for ‘loss of enjoyment of life’ showed a similar increase. In the
1987-88 financial year, 700 lump sum payments were made to sexual assault
victims. By the following year the number had risen to over 1,500, and most
recipients were paid the full $10,000. At the same time, more than a million
dollars of ACC funding was poured into sexual abuse education, research and
prevention programmes. In summary, by 1989, sexual abuse services were costing
ACC over 17 million dollars a year.[38]
In
December 1988, with a budget blowout looming, the ACC board decided to stop
payments for all paramedical treatments from the end of the month. Word of the
change leaked out on 19 December and was confirmed on 20 December. That day,
for osteopaths, chiropractors, podiatrists, occupational therapists,
acupuncturists and counsellors, the ACC gravy train jolted to a sudden stop.
Then, in a dramatic illustration of the power of ‘the sex abuse industry’ to
bend the government to its will, on 23 December the Ministers of ACC, Women's
Affairs, and Social Welfare announced that, as an interim measure, ACC would
‘continue to pay for counselling services under an administrative delegation
from the director-general of social welfare’.[39]
Funding
for the interim measure was appropriated under the Disabled Persons Community
Welfare Act. As ACC Managing Director Jeff Chapman observed, using the Act to
fund sexual abuse counselling required a liberal interpretation of the statute,
‘but it has been in no-one’s interest to question the legal basis.’ [40]
At the
same time, all sexual abuse counsellors were given provisional ACC registration
on an individual basis. This arrangement was supposed to last six months. But
every six months or so it was rolled over for another six months or so while
debate raged over who should pay for, and who should provide, sexual abuse
counselling.[41]
Jeff Chapman noted:
Many persons offering sexual abuse counselling services are
largely untrained. Ultimately it has to be accepted that untrained persons
should not be paid by the Government or the Corporation to counsel people in
psychological and emotional distress... The reaction of some groups which
employ unqualified counsellors is likely to be vocal and negative with
widespread media coverage. These groups are unlikely to be appeased by a
grandparenting clause which enables time to obtain basic qualifications and
training.[42]
In 1989
and 1990 regulations were passed to allow ACC-funded treatments by
psychiatrists, psychologists, psychotherapists, general practitioners,
chiropractors, acupuncturists, occupational therapists, osteopaths,
physiotherapists, and podiatrists to resume. But lay sexual abuse counsellors
had no registration boards, no professional organisations, and no established
procedures for monitoring their skills and competence. So, strictly speaking,
they were not eligible for ACC funding. This was not a problem as long as their
funding was provided under the Disabled Persons Community Welfare Act. In fact,
it still wasn't a problem when responsibility for sexual abuse counselling
funding returned to ACC in 1992 because, at that point, everyone providing
sexual abuse counselling under the existing scheme was given extended interim
registration under the new scheme.
In
summary, the procedural changes to sexual abuse counselling funding between
1988 and 1992 ensured that, by the time the Christchurch Civic Creche case
erupted in 1991, the majority of sexual abuse counsellors were as poorly
trained and poorly supervised as they had always been. This is not to suggest
that more training and supervision per se would have produced better
counsellors. As the research into therapeutic effectiveness cited earlier in
this chapter shows, empathetic individuals with good communication skills can
become effective counsellors with a minimum of training and supervision. The
problem was that sexual abuse counselling attracted women with authoritarian
feminist impulses who were trained by authoritarian feminists in authoritarian
feminist methods. So instead of swelling the ranks of compassionate and
effective counsellors, training and supervision on this model just produced
more, well-trained, authoritarian feminists.