"Most damning, and most encouraging for the future of Sensitive Claims, is the findings of the legal opinion commissioned by the Review panel which found that the interpretation of the legislation and common law used by ACC to justify these changes (the “aw schucks we can’t do anything, it’s the law” argument) was just plain wrong:
“Thus, while the Court provides some support for the principle that a DSM-IV diagnosis is one authoritative means of establishing “mental injury”, it is stretching the decision beyond its capacity to argue that it supports a legal principle that a DSM-IV diagnosis is the only means of establishing “mental injury.”
Furthermore they go on to roundly criticize the change in application of the definition of causality that has resulted in so many claims being declined:
“As a result, ACC will have to exercise considerable care in declining claims on the basis that the sexual abuse was not the exclusive or sole cause of the mental injury; or that the claimant came from a dysfunctional childhood background and that the sexual abuse was part of that context, and it is therefore not possible to assign a causal link between the sexual abuse and the current mental injury… …Because very little in the experience of life has an exclusive or single cause, it is unrealistic, and seems unduly restrictive and unfair in the context of multiple causes of a claimant’s mental injury, for it to be a requirement that the claimant prove on the balance of probabilities that the sexual abuse constitutes the sole or exclusive cause of the claimant’s mental injury. This seems especially so in the context of childhood sexual abuse, where there is a high likelihood of a generally dysfunctional environment, of which the sexual abuse forms a significant part. It is well established in common law cases of causation that exclusive causation is not required to be proved, and that often a “material contribution” to the injury or a showing of “substantial cause” is sufficient to establish the causal nexus.”
These findings are game changing. They open up the process for a return to a structure that more closely resembles the previous structure than anything else, including counselors once again being able to assess their own clients:
“there seems to be nothing in the legislation ... which would restrict ACC from accepting a clinician without a DSM-IV qualification, as having the necessary clinical training and expertise to provide expert advice on the existence or otherwise of ‘clinically significant behavioural, cognitive, or psychological dysfunction.’”
And:
“It will be important that the Massey Guidelines principles of safety, client focus, and the therapeutic relationship are considered when developing the assessment process. The assessors should themselves be experts who have worked with sexual abuse victims. There will need to be a sufficient workforce so that clients can be assessed without undue delay.”
Implementation is now the name of the game. And ACC are consulting with representatives of the sector now, myself included. The devil will be in the detail, as they say, but at least we now have a document that we can hold ACC accountable to. And that is thanks to all of you, providers and survivors, who put so much work into your submissions. If you haven’t already read the Review Panel report, I suggest you do. It is very validating of all our hard work.
Overall I have struggled throughout this process to know whether all of this madness has been the result of outright incompetence from ACC, or malicious intent. The latter seems evident in stories such as those highlighted in the recent Sunday Star Times expose of the possible involvement of Dr. Felicity Goodyear Smith; the former, namely incompetence, is the tune the review panel plays.
I think I’ve reached the point now where I don’t really care either way. ACC owes New Zealand an apology regardless, and sorry may very well go a long way towards earning back the trust of a very angry and disillusioned sector.
They certainly owe an apology to all those who have suffered, still suffer and some who may have even lost their life, as a direct result of this ill-informed and incompetent little “experiment.”"
Kyle MacDonald is an enlightened soul, who has campaigned tirelessly for victim's rights of fair-care and healing - and he's quite clever too! So you know what, Kyle, you have played a intergral part in shining the light on the truth over this last year, so Bravo! to you, and good on you through all this madness for staying solution focused. You can find his blog by clicking HERE.
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