Howard's End: ACC Patients To Become Guinea Pigs
Are injured New Zealanders who continue to suffer debilitating pain about to become experimental lab-rats for the rest of the world as the Accident Compensation Corporation plans to implement a nation-wide injection therapy programme next month? Maree Howard writes.
In New Zealand, injured people cannot sue because of the ACC 'no-fault' scheme introduced in 1972, where New Zealanders gave up that valued and valuable right in return for receiving compensation and rehabilitation entitlements.
But under the new ACC legislation, which came into force on 1 April this year, if injured New Zealanders unreasonably refuse treatment they do so at the risk of losing their entitlements. What is "unreasonable" and who defines that? ACC it seems!
This new ACC legislation about unreasonably refusing treatment is contrary to the New Zealand Bill of Rights Act, which specifically states that everyone has the right to refuse treatment.
ACC Minister, Hon Lianne Dalziel, was asked by Scoop earlier this year whether the Attorney-General had advised Parliament about the inconsistency about treatment refusal between the new ACC legislation and the NZ Bill of Rights Act.
Ms Dalziel's answer was simple: "No."
This raises a legal dilemma as to whether the provision in the new ACC Act enacted by Parliament about being unable to refuse treatment is legal.
Our Parliament is sovereign and can do what it likes with no real checks and balances. Providing it proceeds according to law when enacting legislation it can pass any law that it sees fit.
However, the safeguard, following upon decision not to enact the NZ Bill of Rights as supreme law, is provision for the Attorney-General to give Section 7 notification to Parliament about any new legislation which conflicts with the NZ Bill of Rights Act.
Legally, Parliament must know what is occurring and give proper consideration to proposed legislation in that light.
According to the ACC Minister this was not done, so Parliament enacted a provision in the new ACC legislation about being unable to refuse treatment which contradicts the NZ Bill of Rights Act.
The mandatory lawful procedures (manner and form) for the Attorney-General to advise Parliament when it is enacting new legislation were not followed, so Parliament appears to have blindly enacted that treatment provision.
Moreover, the International Convention of Civil and Political Rights, which New Zealand has ratified, says that everyone has the right to refuse to be part of medical experiments.
The consequence of these flaws in procedure now look likely to be visited on injured New Zealanders who are suffering pain and come under ACC.
Earlier this year, the ACC advertised for expressions of interest from recognised pain clinics and suitably qualified vocationally registered clinicians to provide specialised injection therapies from 2 September to injured New Zealanders who continue to suffer pain. The advertisement said this is to be a nation-wide initiative.
The ACC website referring to these contracts says: "Currently there are no clinical guidelines or criteria governing necessary and appropriate access, and service specifications will need to be developed. The purpose of setting up this contract is to capture service boundaries, to provide clinical guidelines and define service specifications around injection therapies."
Indeed, there appears to be no real clinical guidelines and the reason for that seems to come from a position paper about trigger point injections published by the American Academy of Physical Medicine and Rehabilitation.
The position paper says that a panel of medical experts established by the U.S. Department of Health in 1995 found that trigger point injections were not effective. it goes on to say that trigger point injections, like other medical procedures, have been both used and unfortunately abused.
"Since no clinical controlled trials have demonstrated the effectiveness of trigger point injections for low back pain, the panel recommended against the continued use of trigger point injections in the treatment of low back pain or lumbar radiculitis."
" Based on the panel's recommendations, HCFA issued its guidelines and as a result several states have stopped Medicare reimbursement for trigger point injections in the treatment of spinal problems, cervical or lumbar. It is likely that many other states will follow suit, as undoubtedly will many insurance companies," the position paper says.
"To date, very little is known about trigger point injections - how effective are the treatments, how many injections, which muscle(s) to inject, and what corrective manoeuvres need to be made after a trigger point injection.
The paper laments: "The reason for the gap in our knowledge is that very little funding has gone into research of these treatments, as there is little financial incentive for anybody to sponsor such research efforts."
" In the thirteen years since the original publication of the myofascial dysfunction textbook by Travell and Simons, no clinical studies with proper controls have been published."
The position paper says that studies could be initiated to see if any significant improvement can be achieved through acceptable clinical trials.
But the therapy remains controversial. The "Mission" of the International Spinal Injection Society states that it "..seeks to consolidate developments in diagnostic needle procedures and to identify and resolve persistent controversies...."
The Chairman of the Arthritis and Rheumatic Diseases Division of the Oregon Health Sciences University, Dr Robert Bennet, who uses injection therapies says, "Unfortunately, many physicians have not been taught the proper technique of performing myofascial trigger point injections. But for success, the injections must be integrated into a systemic pain relief programme, sleep improvement, physical modalities and education."
But a review of "Injection therapy for subacute and chronic low back pain" (the Cochrane Review) found that: "Convincing evidence is lacking of the effects of injection therapies for low back pain. There is need for more, well designed, explanatory trials in this field."
No worries, it seems. Come to New Zealand who has a nation-wide "no-fault" ACC scheme where, unlike the rest of the world, you can't be sued if something goes wrong, and now under the new ACC legislation, the guinea pigs can't unreasonably refuse the treatment either unless they want to lose their entitlements altogether.
Scoop has been told that one clinic in Auckland has already been contracted to do injection therapy procedures. Scoop intends to contact the NZ Medical Council and the Health and Disability Commissioner and seek their views.
This ACC injection therapy programme, which I prefer to call by a different name - "experiments" - seems about to commence next month on injured New Zealanders who suffer long-term pain.
It's likely that the injured people in rest of the world will be grateful that it is New Zealanders, and not them, who are about to become the guinea pigs to help set clinical guidelines, criteria and explanatory trials in this field for what has been described in the U.S. as "alternative medicine."