Mental Injury Versus Physical Injury – Why Does ACC Cover Some Kinds of Harm and Not Others?

By Kate MacDonald

Labour has released its 2019 ‘Wellbeing Budget’. [1] One of the five main priorities identified in the budget is “taking mental health seriously”. [2] A $1.9 billion package has been set aside to improve mental health services, [3] including $455 million to get 325,000 people access to services in the next five years. [4] This is significant and welcome news considering New Zealand’s pretty dire mental health statistics. [5] New Zealand has one of the worst youth suicide rates in the OECD. [6] The recent inquiry into mental health found that each year around one out of every five New Zealanders will experience mental illness or significant mental distress, coming at an estimated cost of $12 million or five percent of GDP annually. [7] The budgetary shift in focus from largely GDP-based measures to an emphasis on more holistic ‘wellbeing’ measures is important, as it signifies at least intention from the government to improve the mental health of New Zealanders: The goal being that, over time, everyone who needs to access mental health services can do so for free, immediately and in a way that works for them. [8] This is an overdue and admirable step by the current government and only time will tell whether that goal is achieved.

But is this the only practical way to approach the problem? The release of a wellbeing and mental health focussed budget creates a moment to pause and reflect on our current public health support systems: In particular, the Accident Compensation Corporation (ACC) following the Christchurch terror attacks. ACC is a world-leading scheme that since 1974 has provided cover for accidental injuries. In the wake of the terror attacks, ACC boosted front line services in Christchurch. [9] ACC Chief Executive Scott Pickering came out shortly after the terror attacks and reiterated the support available. He said that everyone injured in the shootings and the families of those killed are entitled to support from ACC irrespective of whether they are residents or just visiting. Those with injuries would have medical costs, short and long term, taken care of. Those working in New Zealand are entitled to weekly compensation while in recovery. Families of those killed would receive a funeral grant, and a survivor’s grant would go to their partner as well as additional grants for children. [10]

However, this compensation only applies to those with physical injuries. ACC will not cover mental injuries unless they are sustained at work, are related to a physical injury that is covered, or arise from sexual abuse. [11] By April, ACC had received 85 mental injury claims, 35 of which are not eligible for support because the person was not also physically injured. [12] One of these claims was made by Yama Nabi, who lost his father, Haji Daoud Nabi, in the terror attack at Al Noor mosque. Yama Nabi was running late for Friday prayers so avoided any physical injury but is psychologically traumatised by what he saw as one of the first on the scene. [13] He was too distressed to return to work but ACC denied his claim. [14] Had he sustained a physical injury as well as a mental injury, he would be eligible to receive 80 percent of his normal wages, cover for medical costs and help at home. [15] Christchurch woman Kirsty Cullen faced a similar issue following the 2011 Christchurch earthquake. She was in the central business district when the earthquake hit and was diagnosed with Post-Traumatic Stress Disorder, but because she had no physical injuries she was not covered by ACC. The issue was also highlighted in a 1999 case, Queenstown Lakes District Council v Palmer ,[16] where a tourist couple went on a rafting trip on the Shotover River. The husband witnessed his wife drowning, but was not covered by ACC for his subsequent mental injury. Prime Minister Jacinda Ardern has said that survivors of the Christchurch terror attacks can get help from Work and Income, but benefits don't match ACC's 80 percent income cover, and wouldn’t help someone like Nabi who could lose his house. [17]

Lawyer Warren Forster is pushing for a new system that covers not only mental injury from accidents but all disabilities regardless of their cause. [18] This would include cover for disabilities a person is born with as well as support for people who become unwell from illnesses like cancer, which are not covered by ACC. Former Prime Minister Sir Geoffrey Palmer QC also supports change to the current model. [19] Palmer thinks that a single unified system would end unjust discrimination that leaves someone affected by stroke or cancer treated much less generously than someone suffering an accidental injury that leaves them equally incapacitated. [20] In the 1967 Woodhouse Report, which gave rise to the ACC scheme we know now, Sir Owen Woodhouse suggested a model that covered physical injury, mental injury and illness .[21] At the time, however, even the current model was seen as a radical step, so full cover was not introduced.

In December, the OECD released a report which recommended considering expanding ACC to fully or partially cover illness, or replicate the ACC approach in other parts of the welfare system [22] (as was originally intended). The report found that those with mental illness faced unemployment rates twice as high as those without, and the rate was four times as high for those with severe mental health conditions. [23] It is clear that support for those with mental illness is lacking and desperately needed.

When asked in September last year, ACC Minister Iain Lees-Galloway did not rule out an expanded ACC. However, he added the caveat that it would represent fundamental change and achieving such change would require considerable public debate and total political consensus. [24] Lees-Galloway said that the public appetite for such change is unknown. [25] Forster has launched a survey to gauge public attitudes and has received upwards of 600 responses, most of which he says are in favour of a new system. [26]

In 2018, ACC paid out more than $3.6 billion; a figure that would rise significantly if sickness and disability were included. [27] Forster’s argument is that this extra financial burden already exists, but it currently falls on individuals. He believes that the extra cost could be covered by ACC’s investment returns if levies went back to 2012 levels. [28] “Every day I receive numerous phone calls and emails from desperate people who need help and don't have access to justice”, Forster says. [29]

The government has promised that victims of the Christchurch terror attacks will have their mental health treatment covered even if they were not also physically injured. [30] This is a great outcome in this case, but does not address the long term issue. Even if extending ACC to cover all sickness and disability is too large and significant a leap, the question still remains: Why the discrepancy in cover between physical injuries caused by accident and mental injuries caused by accident? Is this something that a government committed to mental health and wellbeing should address?

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information. 

Image source: https://newzealand.lawfuel.com/acc-receive-terror-attack-claims/

[1] Treasury Budget 2019: The Wellbeing Budget (Treasury, 30 May 2019) at 2.

[2] At 6.

[3] Maria Slade “Budget 2019 at a glance: boost for beneficiaries, vulnerable children, mental health” (30 May 2019) The Spinoff <thespinoff.co.nz>

[4] Slade, above n 3.

[5] Olivia Wills “The Wellbeing Budget and what it means for mental health” (31 May 2019) The Spinoff <thespinoff.co.nz>

[6] He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction (Government Inquiry into Mental Health and Addiction, November 2018) at 182.

[7] At 8.

[8] “Wellbeing Budget 2019: At a glance” (May 2019) Labour Party <labour.org.nz>

[9] Press Release: ACC “ACC supporting victims of Christchurch terror attack” (17 March 2019) Scoop <scoop.co.nz>

[10] Above n 9.

[11] Veronica Schmidt “Why ACC is turning away traumatised mosque survivors” (14 May 2019) RNZ <rnz.co.nz>

[12] Schmidt, above n 11.

[13] Schmidt, above n 11.

[14] Schmidt, above n 11.

[15] Schmidt, above n 11.

[16] Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 (CA).

[17] Schmidt, above n 11.

[18] Schmidt, above n 11.

[19] Schmidt, above n 11.

[20] Tom Pullar-Strecker “ACC should cover sickness and disability, says Sir Geoffrey Palmer” (10 September 2018) Stuff <stuff.co.nz>

[21] Schmidt , above n 11.

[22] OECD Mental Health and Work: New Zealand (OECD, 13 December 2018) at 12-13.

[23] Cate Broughton “OECD report calls for extension to ACC” (13 December 2018) Stuff <stuff.co.nz>

[24] Pullar-Strecker, above n 20.

[25] Tom Pullar-Strecker, above n 20.

[26] Broughton, above n 23.

[27] Pullar-Strecker, above n 20.

[28] Pullar-Strecker, above n 20.

[29] Pullar-Strecker, above n 20.

[30] “Government will cover mental health for terror attack victims” (27 March 2019) RNZ <rnz.co.nz>