The Cover Question
The Section 21 question that determines cover for mental injury related to sexual assault / abuse has been interpreted in various ways since the ACC legislation was put in place for sexual abuse victims. The people who have struggled the most with Section 21 issues are claimants who are diagnosed with Axis II conditions such as Borderline Personality Disorder. BPD sufferers are also up against some assessors who believe that BPD is more about people behaving badly to get what they want, rather than a distinct mental injury that can be caused by sexual abuse. Some providers will not treat Axis II claimants. Cassandra's view on the matter is that while many Axis II sufferers will not meet the criteria for cover there are some who will, for example incest victims. To determine the correct answer the right questions have to be asked. The diagrams below demonstrate how this works.
Illegal sexual activities as defined under the Crimes Act. The "event" must meet the definition of one of the crimes listed in this Schedule.
Focuses on the actions of
the offender and how those actions relate to the
identified mental injury or injuries.
Requires that a significant psychological or cognitive dysfunction be diagnosed.
Post Traumatic Stress Disorder as a result of Child Sexual Abuse
This example is a very basic example of how the legislation works when it comes to making claims for Cover. PTSD is an Axis I disorder as defined in the DSM-5. PTSD relies upon an precipitating event to be considered for diagnosis. This makes this disorder fit simplistically with the legislation. This scenario should certainly lead to Cover for PTSD.
128B(1) Sexual Violation
129A(1) Inducing sexual connection by threat
Offender forces young person to have sex using threats to ensure compliance
Being in a state of continual fear through childhood due to offenders actions result in PTSD
Cover is achieved as the PTSD is linked to the actions of the offender
Borderline Personality Disorder as a result of Child Sexual Abuse
Traditionally the Corporation has relied on using Axis II diagnoses like Borderline Personality Disorder to avoid granting entitlements. The question regarding the casual nexus for BPD sufferers has traditionally been vague or non existent when claimants have been sent for assessment. Certain psychiatrists created a mantra in their findings that BPD is not materially related to sexual abuse and it was not long before generic opinions pushing this view became the norm. This resulted in another rubber stamping process in that BPD sufferers were declined as a matter of course for cover and or entitlements. Psychologists who knew better were marginalized by the Corporation that created a super assessor pool that was only open to psychiatrists. This first example demonstrates BPD resulting in Cover.
How did the offenders actions contribute to the diagnosed BPD?
Diagnosis Borderline Personality Disorder Axis II
Cover achieved as offender actions are linked to BPD precursors
Offender sexually offended against child.
Child Sexual Abuse
Offender used relationship with child;s mother
to facilitate offending.
Offender is the child's mother
Emotional / Maternal Deprivation
Offender had considerable control over the child's environment and used this fact to facilitate offending.
Borderline Personality Disorder not as a result of Child Sexual Abuse
Borderline Personality Disorder finds its genesis in the childhood years so child sexual abuse is an essential requirement for the disorder to be considered for cover. This next example demonstrates how BPD would not achieve cover.
128B(1) Sexual Violation
Offender sexually assaults adult female
PTSD and BPD diagnosed
Event trauma and fear results in PTSD. BPD related to childhood events
Cover granted for PTSD
Cover declined for BPD as adult events and offenders actions not linked to BPD
This example demonstrates how any sort of disorder can meet the test of Section 21 depending on the actions of the offender.
128B(1) Sexual Violation
Offender repeatedly assaults victim of any age. Uses a pillow to silence and subdue victim
Diagnosed with PTSD and Claustrophobia
Cover for PTSD and Claustrophobia as offenders actions create conditions for onset of both disorders
The problem that has been plaguing all claimants who suffer disorders with the exception of PTSD is that the assessment process does not pay enough consideration for the wording and the requirements of Section 21. When a psychiatrist fails for whatever reason to correctly consider the test in Section 21 the report generally comes back with the finding that sexual abuse is not considered a material cause of whatever the additional disorder may be such as Borderline Personality Disorder. The claimant is then declined cover and or entitlements on the basis that the specific disorder is unrelated to the sexual assaults experienced by that claimant.
No consideration for offender influence on disorder's precursor. Considered only from a generic medical view
Diagnoses Borderline Personality. Precursor such as maternal deprivation considered in isolation
BPD cover declined. Maternal deprivation etc treated as unrelated cause without regard for Section 21
The best defense you can have is to make sure that your treatment providers have an understanding of how the Section 21 question is dealt with. Go over your history with your provider and make sure that the link between the offender's behavior and any diagnosed conditions is well documented. Make sure that your GP is kept in the loop. The treatment provider and the GP can combine opinion to make a very strong basis to argue your claim.