ACC compo policy 'wrong in law'

By Martin Johnston

Form requesting signature to consent to information with threat of compensation cut is deemed inlawful.

Denise Powell
Denise Powell

A judge has overturned ACC's policy of cutting off accident claimants' compensation if they refuse to approve widespread gathering of information about themselves.

The Accident Compensation Corporation's actions were "without basis and wrong in law", District Court Judge Grant Powell says in two just-released verdicts.

The decisions come 2 years after ACC's mass privacy breach.

ACC, asked yesterday if it was following the judge's advice to rewrite the ACC167 form, said the form was "not illegal". ACC was "amending the relevant processes to address the matters raised by the court".

ACC argued before the court cases that the blanket consent form provided "administrative efficiency".

Claimants Denise Powell, a part-time university lecturer who had a back injury, and "K", a sexual abuse victim and brain injury claimant, appealed against ACC cutting off their entitlements after they repeatedly refused to sign the ACC167 form. Their entitlements were reinstated after they eventually signed but they said they only signed because they were put under duress.

Both claimants previously had arrangements with ACC to give it consent to obtain specific information relating to their claims case-by-case. This system ran for several years until 2009 and 2010 when case managers indicated the corporation could no longer accept those arrangements and they would have to sign the form or lose their entitlements.

But Judge Powell said the ACC167 form was much broader in its consent to gather information than the requirement in the Accident Compensation Act that claimants approve the release of "medical and other records that may be relevant to the claim".

ACC was justified to seek a wide range of information and could request consent for this from claimants. But it could use section 117/3 of the act to cut off entitlements for refusing consent only for the "medical and other records" specified in the act, and not for the wider information search that ACC167 enabled.

The judge cites, as an example of the kind of wider information sought, Dr Powell's ACC case manager asking her GP if the medical certificates he wrote accurately reflected the amount of work she was capable of doing. "It would appear," the case manager wrote, "that the hours both paid and unpaid combined could almost exceed a full week's work. If you do not agree will you please provide your reasons."

Dr Powell, an ACC claimants' support group spokeswoman, said the case manager's letter was inappropriate and after a complaint she was assigned to a different case manager.

"K" told the corporation he was concerned about its use or possible misuse of private information including details about his sensitive claim with ACC.

Warren Forster, the advocate for both claimants, said there had been a long line of failed appeals against having ACC payments stopped because of refusing to sign the ACC167 form, but there had not been full legal argument on the issue before the K and Powell cases. ACC is setting up a dedicated phone line for clients with historical consent concerns.

Prime Minister John Key told TV3's Firstline today that while it was an "operational matter'' for ACC, he understood the ACC167 form was not illegal.

"So, therefore it's not a big privacy breach as people might say.''

However, it was illegal for ACC not to process a claim if a claimant refused to sign the form.

"So it's not the form that's illegal - apparently that's totally legal, as I'm advised - it's just the fact that they're not paying out or processing a claim if you won't sign that form.''
Mr Key said it was not unusual for people to test their rights in the courts.

"This is a couple of claimants who have said, `Well, we don't think that should be the case - we should be able to keep our medical records away from ACC, or whatever it might be, by not accessing or authorising them through that form.'

"People test that, and that's what the courts are there to do - to determine whether the law does allow this or doesn't allow that.''

Mr Key denied it was a black mark on ACC Minister Judith Collins.

"Not at all. The reality is that people their rights in the courts.''

• ACC consent concern line 0800 745 254.

Form filling

• ACC167 form asked claimants to sign: "I give my consent for information about me to be collected, used and disclosed..."
• The Accident Compensation Act says: "A claimant who receives any entitlement must, when reasonably required to do so by the corporation...authorise the corporation to obtain medical and other records that may be relevant to the claim."
• What the judge said: "In my view, even a casual glance at the ACC167 form...shows that the authorisation is considerably more extensive than provided by section 72, 1, c [of the act]."

- NZ Herald

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