Image: Archi Banal
Image: Archi Banal

OPINIONSocietySeptember 4, 2023

Why doesn’t ACC cover all babies injured at birth?

Image: Archi Banal
Image: Archi Banal

Last year, the government extended ACC cover to birthing parents, but babies were excluded from the change. Dr Andrew Dickson explores this discrepancy and asks MPs to justify it. 

Caring for a child who suffered an injury at birth is never a simple thing. I could tell you about the symptoms: physical, emotional, psychological. Often, all three. I could tell you about the system: falling through every funding gap, misdiagnosis, under-diagnosis, over-diagnosis. Diagnonsense, I call it. I could tell you about the othering: the strange kid, the strange dad, the strange family. I could tell you about the financial burden, the constant threat of poverty. I could tell you about the stress, how much I stress about his future.

Last year, the government passed legislation to extend ACC to cover injuries sustained by birthing parents. These injuries can be grim, and recovery can be complicated and costly. By removing the barrier to accessing ACC for birthing parents, the government removed a lot of stress, suffering, and financial strain. But there’s still something missing.

Think about a birth, and the people present. Parents, midwives, sometimes doctors. And, of course, the baby. If the mother suffers an injury, she is covered now. If the midwife twists their ankle slipping on the mother’s blood, they too are covered. If the doctor slips with the scalpel and cuts themselves, they’re covered. But the baby isn’t – at least, not automatically.

Around 20 babies per year do get covered by ACC for a brain injury sustained during birth. Up to 360 suffer some type of brain injury, though, so by my count, that’s a coverage rate of less than 6%. ACC would contest those figures. They claim to cover 20% of babies injured at birth, because only 100 or so applications are made for them – usually just the very serious ones, because cover is so damn hard to get. I know because I waged a five-year battle of my own.

My son Ben suffered a brain injury during his birth in 2010. The ACC claim was filed when he was six, after the impact of the injury became clear. He didn’t get cover until 2021, after years of lawyers fees and specialists arguing via reports. Ben has received care under both systems, health and welfare on the one hand, and ACC on the other. 

How does ACC cover change things? Well, our son now has a Recovery Partner: an actual human, with a budget, who coordinates therapy for him. We have an income for his care, and real access to specialists and therapists. All of this was close to impossible to achieve in our fractured and over-burdened health and welfare system. Our son also has a future, free of the threat of poverty: in this country, a disabled child is more than twice as likely to face material hardship than a non-disabled child.

Babies injured at birth aren’t automatically covered by ACC, even after the recent changes extending cover to birthing parents. (Photo: Getty)

It is difficult to explain why babies injured at birth aren’t automatically covered. Imagine a no-fault car crash. Dad is driving, mum is in the front passenger seat, and the newborn baby is in the back, in a properly-installed capsule. A duck bursts out from the undergrowth on the side of the road. Dad automatically reacts, swerving to the left and clipping a fence post at 70km/h. No one dies, but Dad sustains minor injuries and mum has a broken pelvis. Baby has some lacerations from broken glass and seems out of sorts. Mum and baby are admitted to hospital for care. Both are covered by ACC for the injuries they suffered. The baby was in an accident, so the baby is covered.  

But for no good reason, this isn’t always the case if the baby is injured during birth. This isn’t because babies were overlooked, either. MBIE, the ministry responsible for ACC, noted in its regulatory impact statement ahead of the above law change that it was “aware that there has been advocacy for ACC to cover babies who are injured during birth and delivery (who are not already covered under the treatment injury provision). It is likely this group would become more active in advocating for change if birthing parents are given ACC Scheme cover for injuries suffered during childbirth, while their babies remain without cover.”

Almost a year has passed since this legislation came into force. That means around 300 more brain-injured babies, around 80 of them with complex, lifelong injuries. Eighty whānau forever changed. These babies and their families face the constant threat of poverty, diagnonsense, and all the stress.

I had my slot at the select committee for this legislative change. A few minutes to convey my complete outrage at the absolute injustice of it all. Many others did the same. But the legislation passed. By design, babies were excluded. 

Let’s shift gears. I need some action. I decided to ask all of the main political parties, and a few of the minor ones, what they thought about ACC’s exclusion of cover for babies injured at birth. I asked them what they would do differently. 

For me, this is a test. An attempt to reconcile our so-called egalitarian society with the reality. Would they recognise the inequity, be outraged, and commit to changing it? I am not a member of any political party, though I might be by the end of this story. I am not impartial. No one is.

The first to reply is Raf Manji, the leader of The Opportunities Party (TOP). Raf has his finger on the pulse. He immediately makes a connection to the mosque shootings, and the inability for those with mental injuries to get ACC cover. It is the same issue, and he used the car crash metaphor when commenting on this in 2021. He finished his email to me by saying, “Yes, completely support the extension to cover babies who are injured during childbirth.” Unambiguous support.

The perspective of the Green Party has remained the same. Jan Logie was magnificent during the legislative process extending ACC cover to birthing parents. She fought for the legislation, because it is incredibly important that birthing parents are covered. However, the Greens did not want to exclude babies then, and would happily extend cover to them now, within the context of a reform of ACC more generally.

Toni Severin from the Act Party would also cover the babies. I have to admit I was surprised by this, given the costs associated. But fair play to them: Act were also on board, and they were so right through the legislative process. 

I did not hear from Te Pāti Māori. I also didn’t hear from the National Party. I asked three times, but received no meaningful response. 

The Labour Party’s minister for ACC, Peeni Henare, sent me a letter rolling out the usual arguments that it is too expensive to properly care for brain-injured babies. I don’t buy this, because the costs are already borne by New Zealanders, they’re just dispersed across a number of agencies and the families themselves. He also said it was important to retain ACC’s “boundary between accidents and illnesses, as well as avoiding further disparities in support across ACC and the health and welfare systems”. He added that “we have avoided creating further disparities between babies injured during birth and babies born with congenital conditions”.

I found this awful. The minister accepts that these babies have sustained injuries. But these injuries are somehow not covered in our no-fault system designed to cover injuries. In essence he is arguing that we should accept that some brain injuries during birth are an “illness”, except these injuries aren’t inevitable, they’re not part of a degenerative disease process, and they aren’t genetic. 

I think the above issue is a good voting guide for October 2023; a guide to thinking about civics, citizenship, and how to help the most vulnerable. I draw one non-partisan conclusion: the centre has lost its way. The Labour Party is confused about its ideology: the minister’s letter contains justifications that make no sense and the party refuses to care for the most vulnerable. The National Party ignored me.

But TOP, the Greens and Act looked at the situation and did not hesitate: cover the babies, they said. There has been a strong shift of support to minor parties this year, and perhaps this issue captures why. 

Keep going!