|
COSA New Zealand Inc.
Newsletter Issue 12
March 2002
Lump sum payments - catalyst for falsehoods and trauma, or rehabilitation and
fairness?
There has been a five-fold increase in sexual abuse claims ('sensitive
claims') to ACC, New Zealand's
"Accident Compensation Corporation," since the law firm of Wakefield's sent out a
million fliers in January 2002.
Was it sexual abuse, or the 'promise' held out by the Wakefield's fliers, of a "lump sum of
up to $25,000 and ongoing payments valued in excess of $150,000"?
Was it the new legislation bringing back lump sums?
Was it all of these, combined with misunderstanding and opportunism?
How do the legislation and Wakefield's
'initiative' add up?
Would you be surprised to hear that what Wakefield's are on about has nothing to do
with the new legislation?
Is the new legislation fair? Have they got it right? Is it therapeutic?
Has anything changed?
In this issue we address the issues surrounding the new legislation, the
Injury Prevention Rehabilitation and Compensation Act 2002
Note that Lynley Hood in 'A City Possessed' backgrounds the establishment of
the ACC
Following information
added, (not in original newsletter)
(Extract from "A
City Possessed" by Lynley Hood),
Link to Author : Lynley Hood
: Author of A City Possessed
Lynley Hood, A City
Possessed: The Christchurch Civic Creche Case,
Longacre, Dunedin,
2001 672 pages, ISBN:
18877135623, RRP: $NZ 59.95
1. Chronicle of
recent changes and discussion re ACC: a confusing story
The legal firm of Wakefield Associates by means of its Accident Compensation
Services section was going about its business for ACC claimants back in 1999.
As the following shows, they had found a loophole where independence
allowances are accumulated following successful claims.
While lump sums were abolished in 1992 , a woman last year successfully
argued before Judge Malcolm Beattie in the district court that she was
entitled to what was in effect a lump-sum payment going back many years.
[In
theory 1992 was the end of lump sums, but some sources put the actual cut-off
date at 1996]
'We didn't cotton on until about four months ago' when the woman
argued this, said Gary Wakefield, Wakefield Associates. He said until a
change in the law in 1997, people were paid a weekly independence allowance
[at the time of the article it was $61.68 pw], from the date they applied for
it, but the 1997 legislation allowed people to backdate their claim to when
the injury occurred and receive an accumulation of their weekly allowance. –
NZ Herald 1
Feb 1999 'People missing ACC payouts: lawyers - by Tony Stickley These accumulations possibly include
accumulations of back-dated payments for counselling.
Nearly a year and a half later the move towards new Accident legislation was
initiated. The then-Minister for Accident Insurance, Michael Cullen,
announced in June 2000 that there would be new accident legislation called
the Injury Prevention, Rehabilitation and Compensation Bill. A 4-fold
increase in expenditure on accident prevention and the title of the bill revealed
a major focus. - NZ Herald 7
June 2000; Cullen backs off ACC promises by Richard Braddell and Dita de
Boni.
The minister's framing of the bill divided attention between the
reintroduction of lump sums, and accident prevention; the latter was now in
place despite the strict meaning of 'accident'.
[Is sexual abuse an accident? As a letter
published in a Christchurch paper said, early
in 2002, of a sexual abuse claim to ACC for mental injury, "If such a
claim is accepted, how can the event possibly have happened by
accident?"
(Christchurch Star, 16 Jan 2002 Lump Sum Payments by D Hamilton).
However, while this is true of the perpetrator, the person getting the
support, the victim of the abuse, has no control over it.]
By December the Bill was ready for introduction to the House. The package was
to include a $100,000 limit over a person's lifetime, and a scale of
payments. Opposition ACC spokesperson Gerry Brownlee (Ilam) criticised the
cap, saying that if someone became paraplegic, which entitled them $100,000
compensation at that point, later lost their sight, they could get no more
compensation yet they deserved it. He also said the way was paved for
'opening the floodgates' for lump-sum payouts under the category of mental
injury for sexual abuse. - NZ Herald, 1
Dec 2000: '$100,000 cap on lump sum ACC payouts' by Vernon Small.
How the cap related to sexual abuse claims, and where sexual abuse fitted
into any scale, wasn't clear to the public at that time.
The Minister of Accident Insurance Michael Cullen responded to questions
about the problems that lump sums for sexual abuse claims heralded, such as
spurious claims, saying that 'tight constraints' were planned. He indicated
that lumps sums and counselling were to be paid for, even while criminal
convictions would not be needed to succeed in a claim, which was because it
could 'disqualify many legitimate victims'. – Dominion,
8 Dec 2000, 'ACC sex-abuse payments to
be vetted, says Cullen' by David McLoughlin.
(Dr Cullen ought not to
have been satisfied that ACC had evidence of the validity of all accepted
claims. Gordon Waugh articulates where the problem lies: "Despite the
fact that numerous Ministers of ACC, and ACC itself, have said in the past
that "satisfactory, verified" evidence of abuse is necessary,
counsellors do not investigate or corroborate claims" - Usenet, 9 Jan 2002, ACC's
Handling of Claims for Sexual Abuse by Gordon Waugh
Gerry Brownlee, National MP for Ilam, in the Opposition, spoke up again but
was weak on lump sums, and on lump sums related to sexual allegations,
silent. He criticised the government's giving to ACC the sole-provider status
for accident compensation insurance. – National
Party Press Release, 14 Dec 2000, 'Govt must take heed of ACC submissions' ,
by Gerry Brownlee.
Mr Brownlee later indicated support for a wide range of health professionals
remaining under ACC's system, and for keeping an eye out for detecting fraud
or unprofessional behaviour. – National
Party Press Release, 22 Jan 2001, 'Nats policy of more ACC providers
successful' by Gerry Brownlee.
In March 2001, when the Accident Minister's portfolio (often called ACC) was
passed on, Dr Cullen said of the new Minister, the Hon Lianne Dalziel, that
it was in good hands, and that she had the experience and suitability for it.
In the same month ACC published "Therapy Guidelines, Adult Survivors of
Child Sexual Abuse" by Kim McGregor (ACC March 2001). It is a summary of
a literature review undertaken by McGregor for a PhD thesis, from the Injury
Prevention Research Centre at the University
of Auckland. The
booklet, astoundingly, is based around the view that adults who come to
counselling will in fact have been sexually abused even if they 'do not know
it'. This seems autocratic as not true, and thus dangerous. If ACC
counsellors take this view, clients will be subjected to this influence, and
this is likely to result in instances of false sexual allegations.
About the middle of 2001, Disabilities Minister Ruth Dyson was appointed
Associate Minister of ACC. Disability issues and Injury issues seem to be
moving closer to together, and they clearly do have overlapping areas. Of
course the problem with sexual allegations being put into this paradigm is
that they may never have happened, and any person pointed to, during
allegations, as a 'cause', leads to a whole set of problems.
In August 2001 the New Zealand Law Society journal 'Lawtalk' showed that they
had made submissions to the select committee about the IPR&C Bill. This
article said that the Bill had incorporated some changes recommended by the
NZLS, but not the 'no-fault' recommendation or the recommendations to include
the word "accident" near "compensation" in the title. It
also had not picked up the recommendation to rationalise the ACC legislation.
- NZ Law Society, 30 Aug 2001,
Select committee picks up NZLS recommendations, by Don Rennie
[Note that the NZ Law Society was
constituted under the Law Practitioners Act 1955. The general functions of
the NZLS are set out in Section 4 of the Law practitioners Act 1982. The
LawTalk magazine put out by the society is in accordance with provisions in
this legislation.]
Late in 2001 Wakefield Associates made the news in Taranaki, after a small
distribution of its fliers about sexual abuse. Daily
News, 8 Oct 2001, 'Big response to sexual-abuse flier' by Mark Birch.
Then, in the new year, 2002, the whole country took notice after Wakefield's flooded the
country with a million of their fliers, with most householders finding one in
their letterbox.
The front of the A4 sized folded fliers said "Victims of sexual abuse
have a legal right to ACC financial compensation". It went on "The
compensation may include lump sum payments and ongoing entitlements".
Inside, a large heading said: "You may be entitled to a lump sum of up
to $25,000 and ongoing payments valued in excess of $150,000". The
remainder of the flier was an "Authority to Act" form. There was no
mention of sexual abuse in this, but the firm's charges were identified and
contractual details of concern. A person who filled in the form and sent if
off by freepost, as provided for, could retain only the other section, the
one highlighting sexual abuse. They would have no copy of the contract that
they signed such as for later reference.
The fliers were a top news item. They also raised the profile of the new
legislation with respect to the sexual abuse component, and the two were
assumed to be related. Editorials and leading articles across the country
were explicit about the Wakefield
fliers. They took as the context, sexual abuse claims skyrocketing under the
previous lump sum regime, seeming to identify fraud as a possibility. These
two things combined brought a public outcry, with people fearing a gravy
train of false allegations. Someone caused an anthrax scare at Wakefield's. However, Wakefield's figures do
not relate to impairment levels or the lump sums as detailed since then in
relation to compensation for sexual abuse claims under the new law (see
later).
ACC and the Labour Department (it administers ACC legislation) lodged a
complaint with the NZ Law Society and the Commerce Commission about the
flier, and one or more private individuals - Wellington psychologist Karen Frogley at
least - and COSA NZ also, laid complaints. (eg, The Press, 26
Jan 2002, 'ACC to file complaint’ The
Press, 26 Mar 2002, ‘Delays blamed on faulty forms’.)
After a special meeting, COSA formed a statement for the Christchurch
'Star' about Wakefield's
flier, printed as The Star, 16
Jan 2002, "Firm's offer worries
false abuse group" .
COSA laid its complaint about the Wakefield flier with the Canterbury
District Law Society.
The new legislation, COSA discovered, requires that both the date of the
claim, and the abuse, date from 1 April 2002 onwards. Taken together, we can
see that claims made in the period after the distribution of Wakefield's fliers in
January and before 1 April 2002, do not come under the new legislation. They
do, however, come under the old legislation, as these various pieces have not
been removed, eg, Accident Insurance Act 1998 is still relevant for
historical claims.
The day after the fliers were first distributed, an item said that ACC
sensitive claims manager Gail Kettle confirmed that people who claimed to
have been sexually abused would be able to make successful sensitive claims
based on the person's word.
A day later ACC's lawyer Gerard McGreevy, making the inference that this had
meant historical abuse, was recorded as saying: "Ms Kettle's confirmation
in yesterday's Dominion that victims would be able to get lump sums for abuse
that happened years ago was wrong."
Mr McGreevy indicated without further comment on the preceding item, that
existing clients would continue to be entitled to the independence allowance
and other existing entitlements. - The Dominion, 9 Jan
2002, 'Cash for unproved sex abuse' by David McLoughlin. and The Dominion, 10 Jan 2002, “ACC
'wastes money' on sex victim campaign” by David McLoughlin.
The old legislation allows for successful claims for 'historical abuse' to
result in payment of independence allowances that can be back-dated and
accumulated as indicated earlier.
Still in January, in Wellington
it was reported that ACC had sent out large numbers of claims cards to
doctors. A clinic nurse said at her practice they looked after 500 people and
they had been sent 100 cards. She saw the number as suggesting that ACC
believed 1 in 5 of the staff (a workplace) had been abused, and accused ACC
of soliciting in the same way as Wakefield.
- The Dominion, 10 Jan
2002, “ACC 'wastes money' on sex victim campaign” by David McLoughlin.
Gerry Brownlee (in a press release) said that privacy law prevents claims
being scrutinised by interested parties. Such a party could be a person who
realises that they have been, or are likely to have been, falsely accused. At
the same time Mr Brownlee supported lump sums for some injuries but again
criticised ACC's monopoly on compensation provision.
Peter Ellis was quoted as saying "It is clear New Zealand hasn't learned
anything from the Civic case," and it reminded him of the antics of ACC
staffers in 1992, during the developing Christchurch Civic case, who rushed
up to parents waving claim forms long before any charges were laid against
him. – Sunday
Star Times, 13 Jan 2002, ‘Money for old sex abuse’ by Frank Haden.
Three weeks into February - and about 6 weeks after Wakefield
distributed their fliers - reports out of ACC showed the 'Wakefield effect': ACC had received an average
of 500 new sexual abuse claims a week in the new year; the rate before having
been about 100 per week. - The Press, 21 Feb 2002, Sex abuse claims up
after leaflet - ACC.
"Only 500 claims in a week? Girls, you're so bashful! Get in the
queue!" said Rosemary McLeod in an opinion column. She finished up
saying: "Yes, we must queue up quickly, while we can still get away with
it. The time will inevitably come when nobody will believe we had the cheek -
still less that we did it with a straight face". Sunday Star
Times, 24 Feb 2002, 'The real abuse is of the system' by Rosemary McLeod.
The new scheme was then the subject of an Insight programme on National Radio
Radio
NZ "Insight", 17 Mar 2002, 'ACC lump sum payments for sex abuse' by
Sue Ingram Lynley Hood feared
the scheme would act like a sign saying 'get your free money here', and said
that for all 'injuries' except sexual abuse, ACC expected proof and confirmation.
Gordon Waugh backed this up, saying that while sexual abuse happens, for ACC
to accept sexual abuse claims and spend taxpayer's money on them, they should
have evidence rather than just allegations. Victoria University
psychology lecturer Maryanne Garry roundly criticised McGregor's therapy
guidelines, saying she provided a kind of scaffolding, and what clients could
be doing was "building, hanging information that they're creating, on
this scaffolding". Dr David Rankin, ACC's manager of the health sector
relationship, said ACC in a vigorous exercise has re-registered its
counsellors, reducing them by a 3rd to 600, based on 'volumes and outcomes'.
Minister Lianne Dalziel and counsellors also contributed.
ACC's stance was argued in an article the same day, with Hood reiterating her
views. Fred Seymour, director of clinical training at Auckland University,
disputing her, said ACC guidelines weren't responsible for producing false
memories because clients "can't get ACC counselling until someone else
has agreed the person qualifies to see a counsellor." Gordon Waugh -
showing that the procedure was ofirst the claimant applies to ACC via a form,
othen the client picks a counsellor, and othen the counsellor makes a cover
report - said Seymour's
assertion was nonsense. Barry Parsonson, Hamilton clinical psychologist and
president of the Psychological Society, also disputed the guidelines, saying
it was his personal view that "not every client that comes is somehow
hiding sexual abuse under an umbrella of another problem." (Sunday Star
Times, 17 Mar 2002, 'ACC: sex abuse cause of ills' by Donna Chisholm Sunday Star Times, 24 Mar
2002, 'Abuse humbug' by Gordon Waugh ).
(Sections 2-5 of this news review are not yet included;
Please refer to original web site
http://www.geocities.com/newcosanz/cosa03-02.html
|
