26 January 2008 Speech

Embargoed until 10am

Non-Communicable Disease and the Law

Inaugural Public Health Law Summer School:
University of Otago Faculty of Law and Wellington School of Medicine

E nga reo, e nga mana, e nga tauira ma,

Tenei te mihi ki a koutou,

Tena koutou, tena koutou, tena ra tatou katoa.

Good morning everyone. It gives me great pleasure to present this opening lecture.

The relationship between the law and the health of a society is complex. We can, and often do, use the law to bring about changes to improve the health of individuals and the nation. For example, we use the law to limit people’s smoking, reduce their driving speeds, encourage them to eat better and protect them from dangerous substances such as asbestos - all for reasons of their own health or the health of others.

The question for today is - should we do this, and if so, how far should we go? Are there boundaries the state should not overstep even to protect people from disease? How far can we legitimately impinge on individual decision-making simply because we believe it is better for their health?

Should we ban people going to the beach because of the risk of drowning and skin cancer? Should we make it illegal for kids to climb trees since a good proportion of them will fall out and get hurt? Of course not. We prefer the state to play an educative role instead.

Unfortunately, the answer is not always as simple as that. Should we raise or lower the driving age? Should we raise or lower the drinking age? Or should we do nothing with the laws and simply put more ads on TV? Should we prevent certain TV ads or restrict their screen times? I’m sure the students in the room will have a view on those questions. Will requirements for more comprehensive food labelling increase costs - and how will that impact on people’s food-buying choices?

Should we make vaccinating children compulsory irrespective of their parent’s wishes? These are all medico-legal issues this country has grappled with in recent times and some of them are being grappled with right now.

I believe there is a legitimate place for the use of law as a lever for achieving better health outcomes, but there also have to be boundaries - and the truth is that we usually decide where those boundaries lie on a case-by-case basis.

And when I say “we” I mean the Government. I believe Parliament is the most appropriate place for these types of decisions to be made. With all due respect to the lawyers, officials and academics in the room, who may well make more rational or scientific decisions than we politicians, it is appropriate that politicians, who are ultimately accountable to the people, decide the extent to which the state will limit individual decision-making.

I should also say that I do not believe these types of decisions can be appropriately made by “the market”. For example, the makers of “fast food”, tobacco or alcohol will say that people should have the right to buy their products wherever and whenever they choose. Sometimes the freedom to do so is escalated into “the democratic freedoms for which wars were fought”.

The problem is that right now we are seeing whole communities suffering unacceptable levels of obesity, diabetes, lung cancer and other preventable diseases. They were given the freedom to choose but not the information to make an informed choice. So I believe Government has a vital role in ensuring people have the information they need to make informed choices. How should this reality be balanced against the individual freedom argument?

The “individual freedom” argument does not address the issue of collective consequences. When a young person chooses to drink and drive and consequently injures or kills someone else, who pays? When someone chooses to smoke and develops lung cancer, who pays? The answer is invariably the rest of us. And I’m not just talking about the financial cost to organisations like my own ACC or the public health system but also the impact on the families, communities and employers of the people involved. So for generations now, governments have made decisions to use the law to limit individual freedoms and thus reduce the collective consequences.

We don’t do this lightly. We take the best advice we can get from experts, we seek public input and sometimes we make these decisions conscience votes in the House. But eventually we do need to make decisions, in the full knowledge we won’t always please everyone.

Sometimes reactions can be, or appear to be, contradictory. In the wake of a tragic death, for example, there are frequently calls for some time of type of “tough” Government response to prevent a repeat incident. Yet the same voices can often be heard stridently opposing initiatives which seek to reduce the relevant risks, on the grounds they curtail individuals’ rights. Crackdowns on drinking and driving – now near universally accepted – initially evoked such reactions. More recently, despite widespread calls for action on our unacceptably high rates of child abuse, we saw similar responses during the repeal of Section 59 of the Crimes Act. Inevitably once such decisions are made, some will say we have gone too far and others that we have not gone far enough. And actually, that tends to show we got it about right!

One problem we face in relying on laws to deliver better public health outcomes, especially now, is that the context in which the law must operate is changing more and more rapidly. For example, new research may show us how to prevent a disease, thereby making use of the law unnecessary. Alternatively, advances in medical technology or pharmaceuticals may make curing the disease easier, so that a legal approach is less appropriate than an educative one. And, of course, public expectations change all the time. So while we could regularly change or remove offending laws, there are good reasons for not building a legal framework that has to change every time a new development occurs.

By now, I am sure some of you have asked yourselves why the Minister for ACC is speaking to you on this topic? The fact is that as ACC Minister I am involved daily with questions about the application of law (in my case the Injury Prevention Rehabilitation and Compensation Act) to people’s health needs – albeit mainly injury related. Also, you may not be aware that the ACC scheme does in fact cover a range of non-communicable diseases, which I will discuss a little later.

Before that, I’d like to discuss briefly the four ways society can fund the health needs of its citizens, because it gives an important context for the conversation about what ACC does and doesn’t cover. They are taxation, social health insurance, private health insurance and ‘out of pocket expenditure’, i.e. people pay the cost of their own healthcare.

In New Zealand we use all four methods. General taxation funds the public health system. Separate but compulsory levies fund the ACC scheme, which is a form of social health insurance worth a total of about $4 billion per annum once Government contributions for non-earners are taken into account. Private health insurance and out of pocket expenditure cover any needs that people have above what the public health systems can provide.

In New Zealand’s situation the question for Government then becomes, what do you cover under your public health system and what do you cover under your social health insurance scheme - ACC? It’s an important and difficult question, and one I am faced with almost daily.

The fact is that New Zealand’s ACC scheme provides a level of coverage and entitlements for injured people unmatched anywhere else in the world, and at a premium that is highly competitive internationally.

While that’s a situation we can be proud of, it has led to more and more calls for health issues other than injury to be covered by ACC. And I can fully understand those calls. If you have two people in wheelchairs, one there because of injury and the other because of disease, it seems inequitable that they receive different levels of care from the state agencies responsible for them.

A recent Business Council for Sustainable Development survey found; “58 percent support for extending the ACC scheme to cover catastrophic illness, such as cancer, where the treatment is long-term and the person being treated may be unable to work.” That type of call is becoming increasingly common.

As I mentioned, ACC does already cover some non-communicable diseases. They are diseases contracted as a result of an occupation, such as lung cancer or mesothelioma diagnosed as caused by working with asbestos. Schedule 2 of the Injury Prevention, Rehabilitation and Compensation Amendment Act contains a list of occupational diseases for which there is a simplified process for accessing ACC cover. I was pleased to announce in December last year that the list of occupational diseases on Schedule 2 was being increased from 17 to 41.

At the same time a number of other amendments to the Act were introduced to the House, which continued the Labour-led Government’s commitment to improving access to the ACC scheme. One change will further improve the cover provisions for Schedule 2 diseases. It amends the test of work-causation set out in the existing Act to provide greater certainty of cover for these claimants with these conditions and clarifies that the responsibility and cost for investigating a claim rests with ACC.
Another amendment will ensure employees who develop a mental injury after being exposed to a sudden traumatic event during the course of their work will be entitled to ACC support.

The Bill will also improve access to weekly compensation for seasonal and casual workers following concerns they were disadvantaged by the current rules for calculating entitlements. Nearly a quarter of today’s workforce is in non-standard work and the change reflects the increasingly varied labour market.

Vocational rehabilitation provisions will be made more flexible, giving ACC the discretion to fund rehabilitation beyond the current three year time limit. The 65 year age limit on vocational rehabilitation will also be removed in recognition that this age group is increasingly opting to remain in, or return to, work.

These are all examples of law adapting to meet the changing health needs of the nation, including in relation to non-communicable disease.

But there are limits to what can be loaded on to the ACC scheme without jeopardising its sustainability, or affordability. Levy payers, whether they be businesses, individuals or indeed the Government itself, which funds ACC for “non-earners” like children and the elderly, simply cannot afford to fund the level of cover offered by ACC for all health situations.

So the Government has to make choices about what’s in and what’s out, and to legislate accordingly, based largely on people’s willingness and ability to pay.

As an example, over the last five years ACC has been hit with a wave of claims for work-related, noise-induced hearing loss from a generation of older men who have lost their hearing from working in factories, on construction sites or in other noisy occupations without appropriate hearing protection. Current ACC statistics indicate that total costs of noise-induced hearing loss exceed $40 million per year (double that of five years ago). Cost impacts like that affect our ability to add more to the Scheme.

A very different issue for ACC is the extent to which people with certain non-communicable diseases are more likely to injure themselves, such as those with alcohol or other drug addictions. Such people are in ACC’s high-risk category for sustaining injuries, particularly for long term or sensitive claims. Obese people are also in the high risk category, and we know that people with chronic illnesses such as asthma or diabetes are twice as likely to register an ACC claim through their GP in any one year.

Where changes to law are concerned, ACC has been a strong supporter of cross-government initiatives. This has included working with agencies such as the Ministry of Health, Police, MSD, SPARC and the Housing Ministry, to name a few, not to mention the dozens of health sector NGOs ACC works with regularly.

There is clearly merit in ACC working closely with District Health Boards to ensure these particular groups of people receive a coordinated, integrated medical approach from both agencies. Not only will this provide a better health outcome but it can also save money and resources. I am pleased to be able to tell you that trials of just such a coordinated approach are under way.

ACC has also shown initiative by being a leader in withdrawing from investments in areas like tobacco. ACC has a $10 billion investment fund, the returns from which go towards providing care for its clients and keeping levies lower than they would otherwise be. The ACC investment team was one of the first in New Zealand to develop an ethical investing policy which precluded investing in tobacco. This is a special area of interest of mine, not only for the obvious ethical reasons but also for reasons of consistency across areas of government activity.

And I would be remiss not to mention the extensive work ACC does in the area of injury prevention. ACC spends over $40 million a year on injury prevention work with employers, community groups, councils and a range of others. It also leads New Zealand’s overall injury prevention efforts to reduce drowning and falls. And it may surprise you to learn that falls are the leading cause of injury hospitalisation and one of the top three causes of injury related death in New Zealand.

Injury prevention is akin to the fence at the top of the cliff, with the potential for every dollar spent to result in multiple dollars saved in the future. We can assume a spin off for disease prevention from this injury prevention work, if only through the improved general health and fitness that it promotes. Legislation can be used as an important tool in encouraging and enforcing injury prevention strategies

In conclusion, I would simply reiterate that the relationship between law and health is a complex matter. If we can better understand how that relationship works we can certainly achieve improved and more cost effective health outcomes. I look forward to the contribution to that understanding which this new public health course will undoubtedly make.

Good luck to you all.

ENDS

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