Cover Assessments

 

 

The legislation is broken down into various processes some of which are sequential. The first and indeed an essential consideration under the Act is Cover. There is specific legislation that forms the basis for the determination of Cover for Sensitive Claimants. That is Section 21:

 

21    Cover for mental injury caused by certain criminal acts

 

• (1)  A person has cover for a personal injury that is a mental injury if—

o (a) he or she suffers the mental injury inside or outside New Zealand on or after 1 April 2002; and

o (b) the mental injury is caused by an act performed by another person; and

o (c) the act is of a kind described in subsection (2).

 

(2) Subsection (1)(c) applies to an act that—

   (a) is performed on, with, or in relation to the person; and

   (b) is performed—

    (i) in New Zealand; or

    (ii) outside New Zealand on, with, or in relation to a person who is ordinarily resident in New Zealand when the act is performed; and

    (c) is within the description of an offence listed in Schedule 3.

 

(3) For the purposes of this section, it is irrelevant whether or not the person is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury.

 

(4) Section 36 describes how the date referred to in subsection (3) is determined.

 

(5) For the purposes of this section, it is irrelevant that—

   (a) no person can be, or has been, charged with or convicted of the offence; or

   (b) the alleged offender is incapable of forming criminal intent.

 

Experience has taught me that Section 21 determinations for any type of mental injury outside of Post-Traumatic Stress Disorder are typically fraught. To aggravate matters there seems to be a somewhat chaotic approach to making determinations in relation to Axis II disorders. Many decisions which generally find against Axis II sufferers are looking for a medical determination from a Psychiatrist to say sexual abuse will result in the outcome of the victim developing whatever diagnosed mental injury or cognitive dysfunction is considered present in the clinical presentation.

 

Recently I successfully achieved Cover for an Axis II sufferer by arguing that the determination of Cover is not so much a medical question but rather a question of fact and logic. The correct question to ask is what if any actions of the offender carried out on, with or in relation to the victim have contributed to the development of the disorder in question.

 

The legislation is concerned with the individual circumstances surrounding the abuse of the victim and as such is a much wider question that looks for more than pat narrow medical opinion. This matter went to Review and the Corporation conceded and provided Cover before the Review outcome was provided. So at this stage there is no real case law that really nails the issue down for future determinations. However we do have common sense and logic to rely upon.

 

For example, Axis II disorders like Borderline Personality are often linked to environment and maternal deprivation amongst other things. The normal response from the Corporation is that the existing disorder is not directly linked to the reported sexual abuse as environment and maternal deprivation are considered the necessary precursor to the Borderline Personality condition identified. The Corporation’s reasoning was that Borderline Personality is caused by maternal deprivation and environment which can occur separately from sexual abuse. There is truth in that rationale but the question can only be answered by considering these causative factors in the context of the individual abuse suffered by the claimant.

 

In the case I dealt with I linked the actions of the offender to the maternal deprivation and the environment that the Psychiatrists had identified as the cause of the Axis II disorder in question. I demonstrated the impact the offender had on my client’s environment and the functionality of the relationship with her mother by actions carried out by him to facilitate the continued abuse of his victim. This argument really set the cat amongst the pigeons coming as it did from a lay advocate for one thing and being so counter to established reasoning that it was considered heresy for another. After a thorough review by ACC senior management the Corporation conceded the argument.

 

The same logic applies to conditions like Phobias. If we take claustrophobia for instance there is no medical consensus that sexual abuse will lead to claustrophobia. 15% - 37% of the population suffer from this phobia to one degree or another and most don’t seek treatment. Yet this is not the question. It is my opinion that the legislators did not intend for the question of cover to be based on a narrow medical test but rather on the individual circumstances of the abuse based on the specific actions of the offender.

 

Let us take a hypothetical cases for example. Say the victim suffers repeated sexual assaults as a child. The offender would place a pillow on the victims face when this happened. I would argue that the offender’s actions are directly linked to claustrophobia suffered by the claimant. The offender used the pillow to facilitate the assaults against the victim so the test of Section 21 is met in my opinion. Psychiatry tells us that Conditioning Experiences can result in the onset of Claustrophobia so the medical basis is set for the Section 21 determination which essentially asks did the offender’s actions result in the diagnosed condition? The offender used the pillow over repeated offenses and the Conditioning Experience is clearly identified. The casual link is obvious and essentially a matter of logic.

 

For Borderline Personality sufferers the link or lack thereof is found in the examination of the offenders actions throughout the victim’s childhood. It is argued that the offender is operating in an environment that allows the abuse to take place. The question is what kind of impact is occurring on the child’s environment due to the actions of the offender. This is an important consideration. The link is clearly much more evident if the offender is a close relative who plays a significant role in the child’s daily life. On the other hand if a Borderline sufferer is not abused as a child but rather raped as an adult it is not possible to argue a link as the Psychiatrists have determined that Borderline Personality is formed in the child hood years.

 

If you are an Axis II sufferer or you suffer from any other condition that is separate from any Post Traumatic Stress then you must sit down with your treatment providers and relate your complete history to the best of your capabilities. Once this is done all consideration should be given to how the offender’s actions have contributed or not to any diagnosed disorders or cognitive dysfunction. Unless this information is successfully documented and put into the correct legal context then Axis II sufferers have almost no chance of getting Cover for their personality Disorders.

 

Additionally any Axis II sufferer should avoid direct communication with the Corporation and communicate solely through your advocate. The nature of ACC disputes trigger Axis II sufferers to a significant degree and it is not long before an Axis II sufferer finds their condition working against them in many ways.

 

It is also important to remember that the just because an Axis II disorder or other condition exists that is not linked to sexual abuse, it does not mean that any Post Traumatic Stress is automatically disqualified from Cover. The issues for those suffering co morbid conditions are found when it comes to determinations of capacity. An excellent judgment that deals with this situation is Simmonds v ACC.