The idea ACC is only about physical injuries is a bad policy to be pursuing as we learn more about the significant impact of mental injuries, argues Dr Simon Connell

The Government has been criticised for its decision not to make a special extension of the ACC scheme to include victims of the mosque attacks who suffered mental injuries, most recently by the Federation of Islamic Associations of New Zealand.

In response, the minister responsible for the Government’s response to the Royal Commission’s Report into terror attacks, Andrew Little, said the proposition supported by FIANZ – to extend compensation for mental harm not related to personal injury by accident – would amount to a significant change to the ACC model we have had in place since its inception in 1974.

I have two objections to this statement in the context of the Government’s decision. The first is that it paints a misleading picture of ACC being solely about physical injury. The second is that a physical/mental division in our accident compensation scheme is not a policy we should pursue.

The ACC scheme started in 1974. When it began, ACC provided cover for “the physical and mental consequences of any such injury or of the accident”.

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As long as the victim experienced an ‘accident’ they could have cover for any mental consequences without having suffered a physical injury. So, someone who simply heard of a family member’s death in an accident over the phone would probably not get ACC cover.

Under the original scheme, ‘accident’ basically meant something untoward and unexpected from the point of view of the victim. In one case that received cover, a woman watched her son die in hospital after awful injuries had been inflicted upon him in an assault.

If the mosque attacks had happened under the original scheme, witnesses who developed mental injury would have been within the ACC system. To the extent that Little’s statement might suggest otherwise, it’s misleading about the history of the scheme.

So, what changed? Back in the 1990s, the National government was concerned about the overall cost of the scheme and how to fairly fund it. As a result, they made a number of changes including having it distinguish between physical and mental injuries by having different and narrower grounds of cover for mental injury.

If Little wanted to appeal to the history of different treatment of mental harm under the scheme, he should have said something like “This would be a significant change to the ACC scheme since the National Party implemented a less generous and more insurance-based version of the system in the 1990s”.

The physical/mental distinction presents problems, firstly because physical injury/mental injury is a false dichotomy. ‘Mental injury’ conditions have a physiological basis, even if we’re only just beginning to understand it. There’s also an increasingly complex picture emerging about the environmental and genetic factors that lead to the development of mental illness that suggest physical factors are involved.

For some conditions, there is room to argue about whether they should be classified as ‘physical’ or ‘mental’ injury. One example is chronic pain; the currently legal position is that, even if there’s something going on with someone’s nerves that produces pain, that may not be enough to count as physical harm and qualify as a physical injury. The interaction between head injuries and mental health is also complex.

Second, even assuming that the physical/mental distinction is workable, there are good reasons not to make it. Mental injuries can cause incapacity and require treatment just as physical injuries can. ACC does not provide compensation for trifling and transitory mental harm – but neither does it do so for trivial physical injuries that resolve without any need for treatment and cause no time off work.

As a society we’re becoming increasingly aware of the importance of mental health. Treating mental injuries as lesser than physical injuries undermines that. There’s a risk of sending the message that people suffering mental injuries are not really injured, which the Prime Minister arguably did when she told John Campbell that the group missing out were “not the injured”.

Furthermore, research has suggested that mental illness rates are not uniform across different genders and ethnicities. The current approach may well contribute to the present system’s bias against women, Māori and Pasifika.

The Government is in a tough position here. For any incremental expansion of ACC, there is always another group that objects they’re missing out. But accepting that as a good reason not to change the current scheme is classic ‘perfect is the enemy of the good’ thinking.

In any case, in discussing this issue the Government should not hold out the ahistorical idea that ACC has always been about physical injuries, and should not take that policy forward into the future.

Dr Simon Connell is a law lecturer at the University of Otago, specialising in accidents and the law.

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