ACC’s policy of not covering birth injuries is one more sign the system is overdue for reform

Recent media coverage of women not being able to get treatment for birth injuries highlights yet another example of gender bias in healthcare in New Zealand.

Following a policy review, the Accident Compensation Corporation (ACC), which covers accidental injuries, has restricted access to compensation for women who suffer perineal tears during birth.

ACC’s policy appears gender neutral as it focuses on injuries caused by treatment. It states that most perineal tears are caused by the birthing process itself, and are therefore not covered.

In 2020, the Ministry of Health, drawing from overseas research, noted that 60-85% of women suffer some form of perineal tearing while giving birth. Overseas research also shows the number of women experiencing the most severe tears is small but growing.

The debate is multi-faceted, but there are domestic and international legal obligations ACC should take into account.

Equal rights to health

In terms of international law, the United Nations Charter 1945 reaffirms the equal rights of men and women. So, too, does the Universal Declaration of Human Rights 1948. The International Covenant on Economic, Social and Cultural Rights 1966 (CESCR) and the International Covenant on Civil and Political Rights 1966 (CCPR) both affirm the equal rights of men and women.

The declaration and both covenants also prohibit discrimination on the basis of sex. Rights to equality and non-discrimination are also the subject of the UN Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW).

The right to the highest attainable standard of health is underpinned by the rights to equality and non-discrimination. The right to health is a human right and extends to reproductive and sexual health, a right that women should enjoy without discrimination.

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The New Zealand Bill of Rights Act 1990 stipulates that everyone has the right to be free from discrimination, and that any limitations on this right must be reasonable and justifiable. The Human Rights Act 1993 prohibits discrimination on the grounds of sex, which includes pregnancy and childbirth. This law also prohibits indirect discrimination, meaning laws or policies that appear not to discriminate, but in practice do, are unlawful unless there is a good reason for them.

This legal framework must form part of the reasoning for ACC’s policy towards women (and babies) who suffer birth injuries. The current view is that only those who suffer birth injuries as a result of treatment, or failure to provide treatment, are covered.

ACC’s justification is that it is a more accurate interpretation of the compensation scheme, and that it provides certainty to decision makers.

Accident compensation favours male-dominated professions

ACC’s approach may be driven by the understandable desire to provide certainty, but the policy change has led to a drastic drop in the number of eligible women.

Women whose birth injuries do not meet ACC’s requirements can access treatment through the public health system, which satisfies New Zealand’s obligations around the right to health. But availability of such treatment does not fully address the problem of inequality.

A successful ACC claim may mean that a woman can get physiotherapy or even surgery in the private sector. More broadly, a woman may also receive home help and wage support. All of this assistance can be overseen by a dedicated case manager.

Although a woman can still access surgery and physiotherapy through the public health system, the waiting times can be weeks or months, and these women will neither receive home help nor wage subsidies.

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This situation is a manifestation of a wider problem. ACC’s system has been described as “sexist” as its focus on injury and cause tends to exclude occupations where women dominate, including care jobs, teaching and government employment.

ACC is also earnings-related, which is another way in which men are treated more favourably than women, in an approach that mirrors the gender pay gap.

Out of date and discriminatory

One of the reasons given for this overall state of affairs is that the ACC legislation is still primarily designed for the accidents that occurred in 20th century workplaces such as factories, mines and workshops.

More generally, ACC has been criticised for being discriminatory and promoting serious inequalities. Former prime minister and lawyer Sir Geoffrey Palmer has called for an overhaul, arguing that to achieve social justice, New Zealand needs to replace ACC with a system that covers people incapacitated by accidents as well as those incapacitated by sickness or disability.

Under the current ACC regime, arguably, this lack of social justice affects women more significantly. Should the government decide to examine the specific issue of maternal health or engage in a complete overhaul of the ACC system, it must give effect to its legal obligations to the women of Aotearoa New Zealand. Surely, the labour of women is worth this?