Terror in Chch

Ministers vetoed ACC extension for terror victims

Government ministers considered – but rejected – special support via ACC for those mentally traumatised by the Christchurch terror attack. David Williams reports.

The advice came head-spinningly fast.

ACC Minister Iain Lees-Galloway spoke to officials urgently after the Christchurch mosques shooting, acutely aware that the country’s no-fault accident compensation scheme had a glaring gap. The Accident Compensation Corporation, or ACC, covers death and injury, and is a safety net for those injured at work. But, other than providing a handful of initial counselling sessions, it doesn’t cover those mentally injured who aren’t physically harmed.

For example, a plumber driving to a job who was traumatised by seeing a person shot by the gunman on March 15 is eligible for weekly ACC compensation of 80 percent of their pay. But an uninjured worshipper at the Al Noor or Linwood mosques, who witnessed the death of the person praying next to them and now has post-traumatic stress disorder, doesn’t qualify.

(Differentiating between victims was a point of contention raised in a protest by some Christchurch Muslims last month.)

Immediately after the mosque shootings, in which 51 were killed and dozens injured, a dazed public rode a wave of emotions. Unity was anchored to anguish, while sympathy seemed stained with sorrow. It must have made sense to Lees-Galloway to tap into the country’s compassionate mood and consider extending ACC-administered payments to those mentally harmed by the attack. After all, it was already making payments to the physically injured.

On March 20, five full days and just three working days after the attack, the advice came through from ACC and the Business Ministry, MBIE. Lees-Galloway was given options, possible risks were flagged, and rough costs estimated.

“Hats off to them,” says Wellington lawyer Warren Forster, an ACC expert who used to represent some of the terror attack victims’ families. “It’s a pretty impressive piece of policy work to do in three days.”

According to the paper, an estimated 200 people directly witnessed the shooting and, potentially, another 480 people are family members of those injured of killed in the attack. The rough cost of Lees-Galloway’s planned ACC extension was put at $1.4 million up to July 1, and up to $35 million over the life of the scheme.

“Given the unique nature of the attack – which, unlike many traumatic events, constitutes a deliberate attempt to terrorise and inflict mental harm, as well as physical harm, on a large number of people – a temporary limited expansion of the services ACC provides may be desirable,” says the paper, released to Newsroom under the Official Information Act.

Making the case

Further advice, dated March 27, laid out the advantages of an ACC-led response.

ACC cover isn’t generally limited to citizens and residents, so those on temporary visas, like short-term workers and international students, need not miss out. It’s also not time-limited – people get the help they need until they’re able to return to work or function normally.

A response through the Ministries of Health and Social Development would be “more complex”, the advice said, and “out of line with the general approach to health and welfare services”.

“ACC takes a holistic view,” the paper said, “including both the physical and mental health issues and treatment for both.” Access to treatment in the health system would be at the whims of waiting lists, and even a proactive GP wouldn’t have access to the broad range of services that ACC could offer.

It seemed to boil down to fairness. The paper said: “If ACC cover is not extended to the group concerned, some people affected directly by this attack (and their families) will be treated very differently from others affected by this attack.”

The flipside to the fairness debate was also flagged as the policy’s main risk. If ACC was extended to cover those mentally traumatised by the terror attack, then it might add extra pressure to the ongoing debate over whether to expand the scheme to cover all mental injuries.

However, the March 27 report’s writer, Ruth Isaac, MBIE’s general manager of labour and immigration policy, suggested that could be managed by tying cover “specifically to this unprecedented event”.

A Cabinet paper was submitted to a meeting of the powerful business committee on April 15 – a month to the day after the attack. But the momentum towards extending ACC halted, and then reversed. It’s not exactly clear why. Perhaps Treasury turned the tide.

Unique response to a unique event

The Cabinet paper, released on MBIE’s website last Friday, shows that Lees-Galloway sought an endorsement from the business committee to extend ACC’s usual coverage to help mentally traumatised victims of the mosques shooting.

It outlined three possible ways to do that: a ministerial direction under the Crown Entities Act, funded by extra money; a law change; or a support package delivered by ACC, via an agreement with the Ministry of Health or the Ministry of Social Development (MSD).

Lees-Galloway said in the paper that a ministerial directive would provide a “one-off response that is quick and relatively easy to implement”. The targeted nature of the response minimised fiscal risks, and risks over a possible expansion of ACC, the paper said. ACC’s board would need to be consulted – “a short consultation period of no longer than a few days is appropriate” – and new funding would need to be found.

But Treasury was against it. There was existing support for those mentally affected by the attacks through the health system, it said, and “there is a large risk of opening ACC up to further expansions” – a view that jarred with advice from MBIE’s Isaac.

Treasury said significant policy changes should be aligned with other reviews. “This could be very costly and expansions should be properly considered proactively, not on an ad hoc basis.”

Assembled ministers – including Prime Minister Jacinda Ardern, deputy PM Winston Peters, Labour’s deputy leader Kelvin Davis, and Finance Minister Grant Robertson – sided with Treasury and rejected Lees-Galloway’s plan.

The question is, why?

“If costs were the driver here then that’s a pretty sad indictment on the New Zealand Government.” – Warren Forster

A decision paper from April 15 said the committee agreed a “mechanism was needed” but it favoured a “time-limited fund” established by MSD. Social Development Minister Carmel Sepuloni and Christchurch-based Minister Megan Woods were tasked with getting further advice and hatching a new plan.

A month later, Woods publicly announced the Government would provide extra support for emotionally distressed victims, making it easier for them – including the adult children and siblings of victims – to get welfare benefits. ACC had been cut out of the picture.

One of those who had an ACC claim rejected was Yama Nabi, whose father Haji-Daoud Nabi, was killed at the Al Noor mosque. Yama had seen dead bodies, wounded children, “and a river of blood” at the Al Noor mosque. He was traumatised and unable to work, RNZ reported in May, but didn’t qualify for ACC help.

An undated Cabinet paper from Sepuloni estimated 364 people needed help for mental trauma related to the Christchurch attack – 188 who were present at the mosques, as well as their partners, children and parents, and a further 176 adult children and siblings. Sepuloni and Finance Minister Robertson were jointly authorised to approve increases of “up to $5 million per financial year” over the following two financial years.

Wellington lawyer Forster – who, through a Law Foundation international research fellowship, is developing a proposal for expanding ACC coverage – suspects the MSD approach is cheaper than an extension to ACC. “I’d be very disappointed if that was one of the considerations.” He points out that ACC is putting $40 million into the $208 million automatic-weapon buyback scheme, to recognise the reduced costs of firearm harm.

“But we won’t spend $35 million – again that’s a high estimate – on actually helping the people who were [mentally] injured. If costs were the driver here then that’s a pretty sad indictment on the New Zealand Government.”

Muddied waters over fairness

Newsroom asked Lees-Galloway if cost was a factor in the decision not to extend ACC in this case. In an emailed statement, he says: “The driving factor behind our decision was the need for fairness for others who aren’t eligible for ACC coverage.”

But that goes against the thrust of his April Cabinet paper. After weighing up the question of fairness, for those in “parallel situations in which support is not available”, Lees-Galloway said: “I consider that providing extended mental harm support to victims who witnessed the attack or are family members of those physically injured is justified”.

Some might argue that extending ACC cover to those who witnessed horrific scenes in the country’s worst terrorist act would open the door, just a crack, to a fairer system. But by choosing to exclude those mentally scarred by the attack, it could be said that ministers are entrenching the unfairness to all of those afflicted by mental trauma, lest a precedent be made or expectations raised.

“This decision that they’ve made has got nothing to do with the lives of the people affected,” Forster says. “It’s got everything to do with how the New Zealand public responds and all the other people out there who have been failed by our mental health system.”

A child whose mother was murdered in front of her doesn’t get ACC support for mental trauma, he says. Neither does a mother whose daughter was raped in front of her.

“There are a lot of New Zealanders who experience trauma and abuse in our society who don’t get any support,” Forster says. “And it will take courage for a government to stand up and acknowledge that.”

Jarring juxtaposition

In his statement to Newsroom, Lees-Galloway says the MSD-led response ensures more victims of the mosque attacks have received help. This is true, of course. And the Government should get credit for creating a special visa category offering permanent residency to attack survivors and their families, and for assigning case workers to victims.

But, interestingly, MSD advice to Lees-Galloway, included in the April Cabinet paper, said it “does not consider that a payment through the welfare system ... is a feasible option”. It added: “Design and approval processes would take time and it is questionable whether MSD could operationally deliver such support.”

Similarly, the Ministry of Health’s advice leaned towards an ACC-led response. The April paper said neither the ministry nor Canterbury’s district health board could offer compensation payments to those with mental trauma who have missed work. “The ministry supports the proposal to extend payments to people directly affected.”

Christchurch Minister Woods tells Newsroom that the decision to go with MSD “meant we didn’t have to do any legislative change – that we could put the support packages in place much quicker”.

However, Lees-Galloway’s Cabinet paper didn’t seek a law change – rather a “relatively straightforward” ministerial directive to ACC that was promised to be considered promptly. Woods responds that “the discussion at Cabinet was that the most expedient way to do it was through MSD”.

Newsroom spoke to New Zealand First’s health spokeswoman Jenny Marcroft to get her party’s position. She parrots portions of Lees-Galloway’s statement almost word-for-word. Those common lines include a reference to “boundary lines between illness and injury when it comes to ACC cover, including in mental health” and noting that “all governments get requests to expand the coverage of ACC”.

Is the Government more worried about setting precedents than people? Marcroft is adamant politicians had the welfare of attack victims at the heart of their decision. She says she’s seen no expert advice comparing the ACC and MSD approaches, to determine which one was best for victims.

(The effect of the Christchurch shooting is sure to be long-lasting. Research published four years after a 2011 terrorist attack in Norway that killed 77 people found that six out of 10 parents whose children were killed were still too traumatised to return to full-time work.)

Lees-Galloway says a discussion about expanding ACC coverage will take some time – requiring careful analysis of the costs and effects, consultation, and cross-party support. “There are no plans to undertake such a reform this term.”

“We worked out what it would cost, we worked out how effective it would be, and we decided not to do it.” – Warren Forster

Forster says evidence shows the ACC model is better at rehabilitating people than a fragmented approach through the health or welfare systems.

“If a person has a back injury, for example, or has a traumatic brain injury, and we compare the injuries that are covered by ACC with injuries that aren’t covered by ACC, those that are covered by ACC get the help and support they need, and their rehabilitation is far more effective. There’s lots of evidence to show that.”

Ineffective help takes a human toll, he says, but could also raise long-term costs to taxpayers. The worst thing to do is leave a traumatised victim at home, isolated. The Wellington lawyer paints a picture of people “disengaged from a community, because they’re scared to go outside, they’re scared to put their bins outside because they don’t know what their neighbours think”.

That situation is happening in Christchurch now, he says. “I’m disappointed. I expected more from our leaders. And I hope for more from our leaders.”

(Last year, an OECD report recommended the Government consider reforming ACC to expand its coverage to illness, as well as accidents and work-related injuries. Forster says the Government is yet to respond.)

After terrorist attacks, other countries in North America and Europe have built no-fault compensation schemes as a sensible way to care for victims. What leaves him incredulous is that New Zealand already has such a scheme and the Government was well down the track to extending it.

“We worked out what it would cost, we worked out how effective it would be, and we decided not to do it.”

Forster commends ACC and MBIE for providing a well thought-out policy to Lees-Galloway within three days of the attack. He also applauds the Minister for providing a paper to Cabinet less than four weeks later. It’s what happened next that leaves him scratching his head.

“We have a complete system failure, which is kind of what we’re used to in New Zealand, where the Cabinet doesn’t actually make the right decision. And I’m not sure why.”

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