September 2012
Office
of the Ombudsman
PO Box 10152
Wellington 6143
Dear Ombudsman,
REQUEST FOR INVESTIGATION
This letter is a request for an independent investigation
into administrative acts, decisions and omissions by a Minister of the Crown,
the Hon Craig Foss, in his capacity as Associate Minister for ACC.
The Associate Minister acknowledged that various matters I
raised with him, in respect of ACC policies and practices, fall within his portfolio
responsibilities. It was
therefore within his power and authority to remedy the administrative
misconduct of the Accident Compensation Corporation in its handling of
Sensitive Claims (that is, claims for mental injury caused by criminal sexual
offences). However, when I
advised him of corruption and mismanagement within ACC, he failed to take
remedial action.
He further acknowledged that “ACC has a statutory
responsibility to manage claims in a way its governing legislation
allows.” Thus, he
appears to understand and accept that he also has responsibility for the
performance of ACC and the proper application of the ACC legislation. When I advised him of ACC’s
misapplication of its governing legislation, he again failed to take any
corrective action.
The relevant Act is the Injury Prevention, Rehabilitation,
and Compensation Act 2001 (IPRCA).
Its s.21 provides “cover for mental injury caused by certain criminal
acts .“ The “certain
criminal acts” are those listed in Schedule 3 of the Act, comprised of crimes
of a sexual nature specified in various sections of the Crimes Act. These are
called Sensitive Claims.
“Mental injury” is defined in IPRCA s.27 as being “a clinically
significant behavioural, cognitive, or psychological dysfunction”.
Under an earlier variant of this Act, Sensitive Claims were
first dealt with about 1988, when ACC reported it had accepted just 221 such
claims. Since then,
ACC has accepted tens of thousands of Sensitive Claims at a cost to the
taxpayer of hundreds of millions of dollars.
Recent Correspondence
I recently wrote to the Auditor-General about the above matters
(Enclosure 1 dated 26 October 2011 – a letter and three Annexes). The response from her Office
(Enclosure 2, 23 December
2011) suggested that the matters I raised would best be handled by referral to
the relevant Minister.
Accordingly, I then wrote to Hon Judith Collins, Minister
for ACC (Enclosure 3 dated 9 January 2012). The task of answering my correspondence was
delegated to her Associate Minister for ACC, Hon Craig Foss. His response at MIN 12/0035 of 14
February 2012 failed to address the issues raised (Enclosure 4).
The response from Hon Craig Foss at MIN 12/0035 focused on
just one point. He wrote that the
ACC legislation “does not require there to be proof of a criminal sexual
offence”. He explained
his opinion that claimants must instead report “an act that fits the
description of a criminal sexual offence”
(as listed in Schedule 3 of the AC Act). It seemed to me the explanation given by
Mr Foss was confusing.
I later sought clarification from him about those evidential
needs. His response was
letter MIN 12/0148 of 3 April, (Enclosure 5) in which he advised “ACC does need
to be satisfied, to the civil standard of persuasion on the balance of
probabilities, that the described act has in fact occurred.”
I cannot detect any practical or significant difference
between the meaning of “obtaining proof of a criminal sexual offence”, and
being satisfied that “the described act has in fact occurred”. Mr Foss’ explanation
therefore appears to confirm that ACC has an obligation to obtain credible
evidence of criminal offences alleged by claimants in Sensitive Claims.
My Main Concerns
The broad thrust of my concerns is that in the administration of sensitive
claims over the past 20 years, ACC has consistently and routinely :
a. Failed to use critical thinking, evidential
support and intellectual honesty to ensure its Sensitive Claim policies and
practices are evidence-based, scientifically reliable, ethical and safe;
b. Failed to comply with the requirement of IPRCA
s.21 (or its earlier variants) to obtain evidence that criminal sexual offences
alleged by claimants actually did occur and that such offence were the cause of
a definable mental injury.
ACC has subsequently misappropriated taxpayer funds and unjustifiably
applied such funds to counselling, treatment, monetary compensation and other
costs related to Sensitive Claims;
c. Applied a much less rigorous and markedly lower
standard of evidence to Sensitive Claims, than it does to claims for accidental
physical injuries;
d. Misled Parliament
and the public of New Zealand by publishing unscientific and unreliable
information about sexual abuse and its alleged effects, and failed to maintain
and publish full and accurate statistical data in respect of sensitive claim
numbers, their full costs and related data.
My Investigation
Successive governments have avoided making provision in ACC
legislation for mental injuries caused by a wide range of crime. IPRCA s.21 (and similar
clauses in earlier variants of the ACC legislation) appear to have been written
to specifically limit coverage to mental injury caused only by criminal sexual
offences. To that end,
the title line of s.21 uses the words “Cover for mental injury caused by
certain criminal acts ”. The
“certain criminal acts” are those defined in its Schedule 3, being crimes of a
sexual nature listed in the Crimes Act.
IPRCA s.21 therefore establishes the fundamental concept that two main evidential
legs are necessary for acceptance of sensitive claims. The first leg is formed by
evidence that a criminal sexual offence actually did occur and was experienced
by the claimant. The
second leg is formed by evidence that a mental injury does exist and that it
was caused by the criminal sexual offence.
My investigation into these matters showed that in a
majority of cases, ACC has consistently failed to comply with the legislative
need to acquire proof for both evidential legs. In respect to evidence of the alleged criminal sexual
offence, ACC developed a lopsided pseudo-Balance-of-Probability process.
Worse, to determine whether mental injuries occurred that
were a result of criminal sexual acts, it unethically, unscientifically and
unsafely uses a decision-making process in which a vast range of claimant
behaviours are wrongly attributed to sexual abuse.
Cover decisions are thus predominantly based on ill-defined
claimant behaviour, instead of reliable evidence of criminal offending being
the cause of a mental injury.
A few examples of the underlying facts and realities in this
matter (discussed in the attachments to this letter) are :
a.
Despite many years of research,
there is no empirical evidence to show that sexual acts cause any unique or
specific psychiatric, psychological or behavioural conditions, and thus, no “sexual abuse syndrome” can be, or has
been, formulated. In cases
where effects might occur, it is widely accepted that they are idiosyncratic
and unpredictable.
b.
It is irrational, unscientific,
unethical and unsafe to attribute current mental conditions in a client to past
criminal sexual offences, when the offences themselves have not been substantiated;
c.
Despite the obvious and
well-known scientific facts, ACC asserts it knows of “more than 700” effects or symptoms of sexual abuse. In the very best light, such an
assertion is intellectually dishonest. It stems from alarming ignorance. Because every one of those 700+
symptoms has myriad possible causes, none can be uniquely specific to, or even
indicative of, sexual abuse;
d.
The information upon which ACC
relies to underscore its Sensitive Claims policies and practices
(pseudo-research conducted by Massey University), known as “the Massey Guidelines”) is unprofessional, illogical and
unscientific. Of the “more than 700 effects” , the research
avers that “no one
effect on its own is a reliable indicator of sexual abuse” and further states
that “effects never occur in isolation”. It subsequently introduces the concept of “effect clusters”. While it limits “effect clusters” to a maximum of seven items per cluster, it is
then inexcusably contradictory because (after stating “effects never occur in isolation”) it specifies that “single-item groups are
permitted”;
e.
The so-called “clusters” of the 700+ symptoms produce
an array of many billions of combinations and permutations. Their use to determine whether a mental injury
exists, and that it was caused by a criminal sexual offence (especially in the
absence of proof of the alleged crime), is hopelessly unscientific, unethical,
unsafe and impractical.
Nevertheless, ACC has stated its confidence in that concept and process.
f.
Because the individual symptoms
are acknowledged by the research to be untrustworthy, the assumption that “clusters” of them somehow become
reliable is fatally flawed;
g.
ACC
relies on the convenient – but palpably false - belief that claimants can display any,
many, some or all, of the billions of “effect
clusters” and that its registered counselling practitioners are competent
to diagnose mental injuries and attribute causes from such clusters. Without vast computer resources,
it is beyond the capacity of ordinary human beings to recognise, understand and
use the billions of combinations and permuations produced by these “effect clusters”;
h.
Clinical psychologists,
psychotherapists, counsellors, and similar practitioners do not have the
resources, skills or authority to conduct external investigations
into criminal sexual offences alleged by their Sensitive Claim clients. They uncritically accept that
untested client narratives are reliable. In the absence of obvious markers of sexual
abuse and/or evidence from sources external to claimant narratives, it is not
possible for such practitioners -
or ACC - to know whether a
claimant actually did experience (or was likely to have experienced) a criminal
sexual offence;
i.
ACC has acknowledged the
difficulty in separating the effects of sexual abuse (if any) from effects due
to other trauma in a claimant’s life. In the absence of that separation, there can be
no certainty at all that if a claimant does in fact have a
mental injury, it was caused by an alleged criminal sexual offence. That is especially so when
the alleged offence has not itself been impartially examined and
substantiated;
j.
ACC
attempts to use a version of a Balance of Probabilites process to determine
whether criminal sexual offences occurred (or were likely to have
occurred). It is
self-evident that finding a “balance” requires at least two opposing sets of
information. ACC
excludes from its deliberations any evidence capable of opposing claimant
allegations, that might be available from the alleged offender or similar
sources. Without such
opposing evidence, there is nothing to balance and any such decisions by ACC
are open to doubt;
k.
ACC uses markedly lower
standards of evidence to decide cover for Sensitive Claims than it does to
decide cover for accidental physical injuries. For accidental physical injuries, rigorous proof of
cause and effect is required and ACC often rejects claims by deeming them to be
based on degenerative or pre-existing conditions. But in Sensitive Claims, ACC relies on
unscientific beliefs and assumptions born of flawed research, instead of
genuine evidence;
l.
In a majority of the sensitive
claims, especially those of a historical nature, ACC has accepted claims
without obtaining proof for both evidential legs – proof that the alleged criminal sexual offence actually
did occur, and proof that a mental injury exists and that it was caused by the
offence;
m.
An ACC publication states that “Counsellors are witnesses to
crimes……”. Every claim
based on sexual abuse is an allegation that criminal sexual offences were
committed. However, ACC and its counselors do not report
such cases to the Police, and ;
n.
ACC has consistently
misreported data on claim numbers and costs, and published information about
sexual abuse that is patently wrong and misleading. (When I discussed this with ACC, it changed
published data and removed pages from its website – but I retained some of the
cancelled pages.)
Historical Cases and
Evidence
ACC’s
website provides a FAQ section at http://www.acc.co.nz/about-acc/media-centre/frequently-asked-questions/ABA00105#P108_10669
It informs the
public that “ACC receives around 4000 Sensitive Claims per year, the majority
of these relate to historical sexual abuse events, with fewer than 10% relating
to recent sexual assault.”
The fragility of
episodic memory is a well-known fact. In judicial circles as far back as April 1995, it was
held by the Appeal Court president, Sir Robin Cooke, that "...undue delay
in starting a trial might affect its fairness because of the unavailability of
witnesses and the dimming of their memories..." (I understand that in this case, he was only talking about a
two-year delay.)
A result of such
natural memory loss makes so-called “historical” cases notoriously difficult
for Courts and other bodies to resolve. However, in the 3,600 or so “historical”
claims it annually accepts, ACC seemingly decides them with consummate ease.
Nevertheless, ACC says it seeks detailed information for the purposes of determining cover for
mental injury, and includes such matters as :
i. Date of event
ii. Relationship between client
and perpetrator(s) if any
iii. Age of client at the time
iv. Age of perpetrator(s)
v. Gender of Perpetrator:
vi. Frequency of event
vii. Town/city where event
occurred
viii.
Description of event(s).
A glaring and elementary error is that
such information is not evidence -
at any level - of the alleged
criminal sexual offence.
Nor is it evidence of a mental injury or that the alleged offence was
its cause.
Although
the ACC legislation does not appear to prohibit identification of the alleged
offender by ACC, or from obtaining evidence from that person for cover-decision
purposes, ACC conveniently avoids the necessity of collecting and assessing
evidence from alleged offenders and/or others who might have relevant and
credible information about the alleged events. ACC’s use of this pretext allows it to accept
Sensitive Claims without proper investigation and decision-making. Its claim to use a Balance of
Probabilities process to make cover decisions is therefore hollow.
Recent Procedural Changes
ACC introduced a new Sensitive Claims clinical pathway in October 2009 to apply a strengthened
clinical model to the way it manages sensitive claims. The introduction and implementation of
the new clinical pathway created significant public/media attention and
stakeholder issues. In April
2010, The Hon Dr Nick Smith, then Minister for ACC, requested an independent
review of the introduction of the new Sensitive Claims Clinical Pathway.
Those changes are being monitored separately by Dr Barbara
Disley. Her most
recent independent report was the “Monitoring Report on the Implementation of
the Recommendations from the Independent Panel’s Review of the ACC’s Sensitive
Claims Clinical Pathway: 18 Months Follow up.” This report was prepared for the ACC Board by Dr
Disley and issued on 1 July 2012.
Amongst the numerous changes was the introduction of
automatic access for clients to 16 counselling sessions without the need to
progress through the cover determination process to lodge a claim for
compensation.
At paragraph 9 of
its Executive Summary, the report notes “The number of clients moving through
the cover assessment process is low. It could be that access to the sixteen support
sessions is sufficient for the majority of clients and that because their needs
are met they do not need to progress through the cover determination process.”
In tandem with
that change, ACC now only reports the number of claimants who do claim
compensation.
Since about 1990, the total number of such claimants has been measured
in tens of thousands, but ACC now only reports the very small numbers who
proceed through the 16-session process to lodge claims (49 claims accepted in
2012). The number of clients
accessing the 16-session process
is not reported, but given past history is probably measured in thousands.
A conclusion is that ACC has been perverted to provide a
cost-free counselling service to perhaps thousands of clients without the need
to comply with any aspects of its governing legislation. The
dimensions of these matters do not appear to be published and are therefore
invisible to the public.
Conclusions
From the matters
discussed above and in the Enclosures, I conclude that the Associate Minister
for ACC, the Hon Craig Foss, had sufficient authority and reason to take
positive action to rectify the very serious errors I brought to his
attention. He also had
the opportunity to save the taxpayer many millions of dollars by making
appropriate and necessary adjustments to ACC Sensitive Claim policies and
practices. However,
his administrative
acts, decisions and omissions in treating my concerns were inappropriate
and wrong, and resulted in no corrective action being taken.
Outcomes Sought
The outcome I seek form your independent investigation is
that you recommend or direct that the Associate Minister for ACC (and/or the
Minister for ACC, the Hon Judith Collins) takes immediate positive action to
rectify the serious flaws in ACC’s administrative conduct of Sensitive Claims,
by requiring ACC to :
a.
Obtain testable evidence that
criminal acts alleged by claimants actually did occur;
b.
Ensure that evidence or
information opposing a claimant’s allegations of criminal offending (especially
in “historical” cases) is collected from alleged offenders and is fully taken
into account in cover decisions.
c.
Ensure that all criminal acts
alleged in Sensitive Claims are reported to the Police for criminal
investigation;
d.
Separate the effects (if any)
of criminal sexual offences from effects due to other trauma in a claimant’s
life;
e.
By means acceptable to
main-stream medical professions (not counselling or psychotherapy
practitioners) obtain evidence that the claimant has a definable and specific
mental injury ;
f.
Obtain testable evidence that
the alleged criminal act was the cause of the claimed mental injury, as
specified in IPRCA s.21;
g.
Employ only those
administrative, diagnostic and treatment procedures that can be shown to be
intellectually honest, evidence-based, scientific, ethical and safe;
h.
Apply to Sensitive Claims the
same rigorous standards of proof it uses for accidental physical injuries,
especially in relation to degenerative and pre-existing conditions;
i.
Ensure that information it publishes about sexual abuse and
its effects is scientifically valid, reliable and complete; and,
j.
Maintain and publish full and accurate statistical data in
respect of sensitive claim numbers, their costs, counselling costs, and related
data, so that such data and information is freely and readily available to the
public.
Sincerely,
Gordon Waugh
1. Letter to
Auditor-General dated 26 October 2011
2.
Auditor-General’s letter of reply dated 23 December 2011
3. Letter to Hon
Judith Collins, Minister for ACC, dated 9 January 2012
4. Letter from
Hon Craig Foss, Associate Minister for ACC, MIN 12/0035 of 14 February 2012
5. Letter from
Hon Craig Foss, Associate Minister for ACC, MIN 12/0148 of 3 April 2012
