While expanding ACC to cover birth injuries is a positive step, limiting cover to a specific list of birth injuries will not help address inequitable treatment of women, argues Dr Simon Connell
The Government plans to expand ACC to cover some birth injuries, which is good. If we’re going to have an accident compensation scheme, it shouldn’t exclude a bad event that happens to women. However, the proposal is to only cover birthing parents who suffer a set list of injuries.
It’s common for people to wonder why birth injuries aren’t already in the scheme. The legal explanation is that the definition of accident usually requires an external force, and a foetus is legally considered part of the birthing parent’s body during labour and birth. The only scope for birth injury cover is a ‘treatment injury’ which usually requires a failure on the treatment side or something unusual happening.
There are two main reasons for that legal definition. The first is that it is part of a series of changes made by National in the 1990s to limit the scope and thus cost of the scheme. The ‘external force’ requirement was targeted at excluding illness conditions, which develop gradually because of a person’s innate characteristics rather than some external factor.
The second reason is, in a word: patriarchy. The scheme is much better at including bad stuff that happens to men because, in short, it was designed by men for men (more specifically for men working in the 20th Century). As a result, it is not great in terms of what it provides women. This has been pointed out a number of times before.
To be clear, what I mean here is not that a group of men sat down and deliberately chose to exclude women simply for the sake of excluding women. Neither do I mean no women have ever been involved in setting ACC policy.
But it is fair to say that the history of ACC, much of which has a big impact on the state of the scheme today, has been dominated by men thinking about men’s experiences. That is why birth injuries are excluded. The provisions for work-related cover are also better at capturing conditions suffered in conventionally male occupations.
That is not good enough, so we should do something about it. I think the obvious solution to this problem is to amend the definition of accident to include birth. The definition of ‘accident’ already includes several things that count as ‘accident’ without needing an ‘external force’ such as inhalations and radiation burns.
If a person suffers an injury during birth, they could then lodge a claim with ACC. Just like any other personal injury by accident claim, ACC will then need to consider whether it’s plausible that that injury was caused by the accident and accept or decline the claim.
The Government considered doing just that but decided to go ahead with a more limited and technical approach. As well as amending the definition of ‘accident’ to include birth, the proposal accepted by Cabinet would set out a list of specific injuries which would be the only ones that could get cover.
I’m not a medic, but I believe the list includes several common injuries suffered by people giving birth, and it isn’t limited to serious ones. The proposal would mean thousands of people get cover who don’t currently.
So, what’s my objection? A friend put it this way: Where is the list of acceptable injuries to have suffered on the rugby field? Why should a birthing parent who suffers an injury during birth who doesn’t happen to be one of the ones on the list miss out? What is the justification for treating this type of accident, typically experienced by women, differently, when that is not normally how the scheme works?
To be fair, there is a precedent in the scheme for having a list of conditions that are treated differently. There is a schedule that gives a list of occupational diseases associated with specific kinds of work. If you have one of those conditions, it is easier for you to get cover compared to the normal process for work-related gradual process or disease conditions.
A rationale for the list is given in the MBIE Regulatory Impact Statement that preceded ACC Minister Carmel Sepuloni’s proposal to Cabinet. The reason for the list is to ensure the boundaries of cover are clearer. That’s probably correct, but the clarity in cover is achieved at the expense of excluding people who genuinely suffered injuries as a result of birth.
The main source of the ambiguity in introducing birth injuries is going to be the words used to define that type of accident. The current suggested wording seems to be ‘mechanical trauma caused by labour and delivery’.
Whether or not there is a list of injuries, there are likely to be court cases testing the boundaries of the definition. There is also a risk that the listing of specific conditions adds complexity and ambiguity if there is room to argue what is included in those conditions.
The list of conditions does not really provide that much more clarity. It also risks becoming out-of-date, since all it can do is capture current medical thinking. That means it cannot adapt to developments in how we understand birth trauma.
I acknowledge that there are also important wider questions about the boundaries of the ACC scheme, and whether birth injury cover should include babies, which Green Party spokesperson Jan Logie, among others, has questioned.
Any expansion of ACC is better than the status quo. But there is something off to me about addressing inequitable treatment of women by introducing a special approach that only applies to injuries typically suffered by women.
That is exactly the sort of thing we should be trying to get rid of in the scheme. Introducing a list of covered birth injuries will not make the boundaries that much clearer, and any clarity is outweighed by the unfairness of excluding birthing parents who suffer injuries during birth that are not on the list.
