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Busted - The insurance industry generated myth that insurance companies have unrestricted totalitarian power over accessing and use of their client's information.

Busted - The insurance industry generated myth that insurance companies have unrestricted totalitarian power over accessing and use of their client's information.

The failure in the NZ District Court of ACC's policy of forcing claimants to provide unrestricted consent is also a win for privacy advocates everywhere.



ACC (Accident Compensation Corporation) is New Zealand's state-owned accident and medical malpractice insurance company.


Two recent successful District Court Appeals (one being - NZACC 89, ACR 243/10, judgement date 4 April 2014, heard by Judge LG Powell) by ACC claimants against ACC's decision to stop entitlement because they refused to sign ACC's ACC167 authorization form - is a major victory for ACC claimants and privacy advocates everywhere - because it provides a reasonable legal precedent that insurance companies (including those run by government) do not have the right to demand unrestricted consent to collect information; nor the right to do whatever they want with it.

The ACC167 form required authorization to be given by the claimant for unspecified information to be collected, used and disclosed by ACC. If the claimant refused to give unrestricted consent because of the implications with regard to unwarranted invasion of privacy - this was used by ACC as an excuse to decline a claim or suspend entitlements. 


Many claimants would have signed the form just because they were told to do so, without realizing what it meant. Others would have signed it under duress because ACC made it clear to claimants that they must sign the form as is, with no alterations, or their benefit would be declined or suspended.

This decision does not mean that ACC claimants can refuse to provide consent for ACC to manage the claimant's entitlement to compensation, rehabilitation and medical treatment. Insurance companies need this data. But ACC is not entitled to carte blanche access to, and use of their claimant's information. 

This has been a win for the right to privacy and a win against bullying by government agencies.

The response from ACC and the government has been interesting. 


The Prime Minister responded by saying that the form was not illegal. There's political spin at work. In the ACR243/10 judgement, Judge Powell said: "...it will be important that a new consent form is developed as quickly as possible" which certainly conveys the clear impression that the judge considers the form inappropriate if not illegal. In addition, he makes it very clear: [49] "The respondent's decision to stop entitlements was therefore without basis and wrong in law."


The Minister of ACC, Judith Collins refused to comment, claiming that it was an operational matter. (Remember when election time comes - those politicians who have refused to be accountable for the failures of the organizations in their portfolio.) Given Judith Collins intervention in the Bain case, it remains to be seen whether she is so impervious to human rights - that she encourages ACC to challenge this decision in the High Court.

The drive for positive reform has to come from the very top. The "Who Me?" argument is not the response of a person who has the interests of the public at heart, or a willingness to follow through with positive reform.

Then there have been the "Woe is we" arguments by ACC that designing a flexible consent form is too much work. This is a pathetically weak excuse. Most health care providers have to obtain informed consent from patients/clients before accessing or releasing their data to others - that varies depending on the circumstances. 


If a busy GP or surgeon can obtain informed consent appropriate to the circumstances - why can't a multi-billion dollar organization like ACC do it?


There also needs to be more specific authorization regarding what ACC can do with information - because ACC has a very poor track record with regard to the privacy of claimants records.

Based upon the response to the Bronwyn Pullar scandal - under this government, the likelihood of having any positive change at ACC is slim.

In August 2011, ACC mailed a spreadsheet containing details of 6700 people, including 250 sexual abuse cases to ACC client Bronwyn Pullar.

Malcolm Crompton, the former Australian Privacy Commissioner brought in to conduct the investigation related to this, said: "Pullar has done the people of New Zealand a service by making sure we pay attention to the proper governance of private information."


His comments follow the release of a damning review of privacy at ACC released by Privacy Commissioner Marie Shroff.
Shroff said the release of private information was genuine human error, but, according to feedback to investigators from interested parties, there was an "almost cavalier" attitude at ACC towards protection of clients' private information.
No one in their right mind - in this era of government over-reach and slackness wants any government agency to be able to do whatever they want with their information, without any restrictions.

After the Bronwyn Pullar case - there was a lot of political posturing and so called privacy policies talked about - but most of the actual privacy changes seem to have been geared towards preventing the public from finding out what ACC and its staff have been doing - i.e. ACC's secrecy has expanded. 
The blatant disregard for claimant privacy evident in the ACC167 form shows that while ACC is super keen on its own privacy - claimants are fair game. This is not surprising because the person selected by ACC (if not the Minister herself) to oversee ACC's privacy issues was none other than the person who devised the infamous ACC - RIS Units and their Machiavellian strategies to disentitle claimants by fair means or foul.

The NZ District Court decision (which will hopefully serve to curtail bullying by ACC, and restrict ACC from forcing claimants to provide an unreasonable scope of authorization to ACC) comes at a time when The Washington Post and The Guardian (US) have been jointly named as the Gold Medal Award winners of the 2014 Pulitzer Prize - Public Service Award for their journalistic work that has resulted in public awareness of the scope of government violations of privacy, under the flimsy excuse of national security.




_________________________

Here's a suggestion for an ACC Authorization form that covers the relevant matters.
  • Referral to a Medical Assessor (or other Assessor) should require specific authorization related to that Assessor and the reason for that assessment.
  • If required additional authorization could be negotiated at another time). 

(As you can see, it is not difficult to design a general authorization form that gets the job done with little input required from either party - but with clear intent.)


General Authorization
I authorize ACC to obtain relevant medical information from any health professional(s) involved in my care; and from any hospital or clinic I have attended for care in order to establish cover, entitlement and rehabilitation under this insurance policy for __________________________________ injury 

I authorize ACC to obtain relevant financial information needed for underwriting, administration and adjudicating claims from my accountant, employer or Internal Revenue Depart / IRD. 

I authorize ACC to release relevant information regarding me to appropriate staff members for the purposes of underwriting, administrating and adjudicating my claim. 

I agree that a photocopy or electronic version of the original authorization is as valid as the original and shall continue to have effect throughout the period specified in this authorization. 

This consent is given with the understanding that ACC will insure that my privacy will be respected; and any personal information it holds regarding me will be kept secure. 

Name:__________________________________Date:___________________________________Period of authorization:_____________________

Authorization for _________________ assessment
I authorize ACC to provide (name of assessor)  _______________________ with copies of my documents for the purposes of _______________________ assessment with regard to the following injury (ies): __________________________________________________________
The purpose of this assessment (ACC circles or ticks the correct option) is:
  • need or entitlement to medical treatment
  • need or entitlement to rehabilitation (_________________ type)
  • need or entitlement to vocational rehabilitation
  • medical review - to determine whether disability is related to covered injuries 

I want to be provided: (Claimant circles or ticks if they want this)
  • copies of all documents provided to the Assessor (including ACC's referral letter)
  • copies of the report
  • copies of the resume or CV of the Assessor.
I agree that a photocopy or electronic version of the original authorization is as valid as the original and shall continue to have effect throughout the period specified in this authorization. 

This consent is given with the understanding that ACC will insure that my privacy will be respected; and any personal information it holds regarding me will be kept secure. 
Name:__________________________________Date:___________________________________Period of authorization:_____________________

There is no extra-ordinary onus put on any insurance company, government agency, or any other institution to utilize informed consents such as provided in the example above. This is done in hospitals every day. It is no more of an onus on health professionals to obtain informed consent specific to the circumstances, than it is for a business such as an insurance company. It is done to protect the patient/client's privacy.

If the information sought is not routinely required or covered in the "normal" informed authorization such as in the examples above, then additional consent specific to the situation should be obtained.

The public has a fundamental right to privacy. ACC (or any government agency, insurance company or institution etc) has the obligation to prove that it is necessary for them to have a certain type of information in order to exercise a specific function related to the matter at issue - and therefore it is reasonable for them to ask for it, and it is reasonable for the individual to authorize them to have it. 

The primary onus should not be put on an individual to have to go into a legal battle agains a multi-billion dollar corporation to prove they should not have it. Because most individuals generally do not have the knowledge or determination to take on a behemoth business in court, so either will not be able to challenge them, or they lose - this situation invites opportunism by Machiavellian management who see this situation as a tool to cut costs.

It is a truly twisted system when an important human right such as privacy should be undermined in the interest of the convenience of a government run insurance business.

Unrestricted authorization to access or use personal information invites opportunistic misuse, abuse and serious consequences when human error or malicious acts affect an individual's data and their privacy.

BUSTED - The insurance industry generated myth that insurance companies have unrestricted totalitarian power over accessing and use of their client's information.




Tyranny rising in the UK - Justice denied - Escalating Closed Material Procedures in the UK.

Tyranny Rising

Justice Denied

Escalating Closed Material Procedures in the UK



Under the Justice and Security Act 2013 (which was passed into UK law in 2013) the UK government has made secret procedures known as Closed Material Procedures (CMP) available in all types of civil judicial proceedings. Under CMP the government can decide that the court should hear it's evidence in secret - and their opponent will not be allowed to hear the government's evidence against them (or in other matters, will not be able to know or rebut the government's defense of its actions.)


The Justice and Security Act (JSA) is part of a package of increasingly repressive and anti-democratic legislation going back to the UK Anti-terrorism, Crime and Security Act 2001. Introducing detention without trial for ‘terrorist’ suspects, this allowed the UK government to derogate from article 5 of the European Convention on Human Rights on the grounds that there was a ‘state of emergency threatening the life of the nation’ (another version of the so-called ‘war on terror’.) 




Secret court procedures were originally introduced to deal with appeals by detainees held under the act. Fearing disclosure of material in such appeals which might compromise the activities of the intelligence services, [not to mention what their employees had been up to] the legislation permitted the exclusion of the detainees and their legal representatives from the proceedings and their replacement by security-vetted ‘special advocates’
[It is this type of secrecy that will allow torture and other heinous or corrupt acts by government officials to continue unopposed.]

Mark Neocleous ( Mark Neocleous, chapter 2 `Emergency? What Emergency?’, in Critique of Security (Edinburgh University Press, 2008) indicates that states of emergency giving government extraordinary powers are by no means new in the UK. Something close to the martial law declared during the first world war was repeatedly re-introduced in every decade subsequently. These exceptional powers became the norm and were routinely used against, for example, the organised working class. 



Emergency powers tend to become permanent in spite of politicians’ assurances to the contrary. What attracts the use of emergency powers also has a tendency to spread - at the convenience of government officials. 

The court will have the discretion to declare whether CMP can be used in proceedings and initially it can decide whether CMP would further the ‘fair and effective’ administration of justice. But having done so the court loses its power to order disclosure of sensitive material even where the interests of natural justice or openness would so commend.

Prior to the Act passing, the Law Society of England and Wales, representing solicitors, argued that the Justice and Security Act infringed open justice and jeopardized the right to a fair trial based on equality of arms as an essential element of the rule of law. 


In the same vein, the barrister Michael Fordham commented: ‘Secret trials undermine the principles of open justice and natural justice on which the rule of law is built.’ The spread of secrecy allows ‘the state authorities to become self-immunised from proper public scrutiny’.

Liberal Democrat MPs from the ruling Conservative-Liberal coalition supported the bill through Parliament, despite overwhelming contrary votes at two party conferences. A former Westminster candidate, Jo Shaw, the human-rights lawyers Dinah Rose and Phillipe Sands and the copyright reformer Cory Doctorow all resigned from the party in protest.

The problem has been best summed up by Martin Chamberlain, a barrister who has worked as a ‘special advocate’ (see below) in secret courts since 2003. Chamberlain described the system as worthy of Franz Kafka, likening the use of CMPs to Joseph K’s ordeal in The Trial: ‘As a special advocate, you are able to see and hear both the “open” and “closed” evidence. But often, the Government witness will refuse to answer particular questions in open court, and the issue will have to be pursued by the special advocate in closed hearing. But, after seeing the closed material, I am prohibited from speaking to my client. So I will never know if he had an alibi or innocent explanation and nor will the court.’


Normally, if you are before a court, whether in criminal or civil proceedings, you can see and challenge the other side’s evidence. In a civil case the judge will give detailed reasons for their decisions, and the whole process will be subject to scrutiny by the public and Press. 

On the other hand - closed materials, are never shown to the other party, or his lawyers, who are excluded from parts, if not all of the hearing. 

On the basis of this law, the Government can decide that even in cases where the government is one of the parties - the government can decide that the court is to decide the case, without giving the other party any details of the case against him and without an opportunity to rebut the governments evidence which has been given in secret.

Those who pushed for this radical change to the British justice system did so under the perennial excuse of tyrants - concerns regarding the disclosure of "sensitive material". The definition of sensitive material can and no doubt will expand to include just about anything the government does not want the public to know about.


The ability of the government to hide information (which is effectively what this Act allows) is not just fundamentally unjust to the opposing party - it will undoubtably have negative consequences with regard to government accountability - a situation that is clearly against the public interest. 




You can imagine how readily this type of process will be abused by government officials, who will manipulate the provision of evidence to the court (who will be unaware of the fact that the truth is misrepresented because they are getting only one side of the story.) The opposing party will not know the evidence brought against them and consequently will not have an opportunity to speak to and correct misinformation.

A submission on this Act from 57 advocates argued that Closed Material Procedures noted: "represent a departure from the foundational principle of natural justice, that all parties are entitled to see and challenge all evidence relied upon before the court, and to combat that evidence by calling evidence of their own".

The advocates' submission also rightly stated that "Government ministers should not be endowed with discretionary powers to extend unfairness and lack of transparency to any proceedings to which they are themselves party". Further warning, "it would leave Britain with more draconian rules than any other country in the world, more suited to despotic regimes such as Iran and North Korea". (These warnings were ignored - which is to be expected in an evolving authoritarian state.)

The right to a fair trial has been defined in numerous regional and international human rights instruments. It is one of the most extensive human rights and all international human rights instruments enshrine it in more than one article. The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. 

The aim of the right is to ensure the proper administration of justice. 
As a minimum the right to a fair trial includes the following fair trial rights in civil and criminal proceedings:

1. the right to be heard by a competent, independent and impartial tribunal
2. the right to a public hearing
3. the right to be heard within a reasonable time
4. the right to counsel

The Joint Committee on Human Rights 24th Report (Ch 6) on the Act in its Green Paper stage - identified democratic accountability and media freedom as “the missing issue in the Green Paper”. The Committee indicated that Closed Materials Procedures established an unnecessary, unjustifiable regime of secrecy, with the potential to become widespread in cases already beset by secrecy, and in which CMPs would not result in fairer trials. The Bill denies the press and public to know about important matters of public interest. The scope of amendments to the Bill fell well below what the Joint Committee on Human Rights recommended.


The Joint Committee on Human Rights also said "in all the evidence it had received, apart from that of the Government, the proposals indicate a ‘radical departure’ from ancient principles of ‘open justice and fairness’". 

So there you have it - the UK government has passed a corrupt law with which it can cloak it's acts in secrecy - and which it can use unilaterally to its advantage in court. 

Secrecy and unilateral power and control are fundamental traits of authoritarian and tyrannical governments and dictatorships. 

When the government can hide its acts under the cloak of law (particularly in surveillance police states) - maliciousness, cruelty, corruption and other wrong-doing is hidden. More people become implicated in hiding wrong-doing. The self-confidence of wrong-doers (particularly the ringleaders) that they can get away with things increases - as do the wrongs they and their cronies enact. 

Unequal application of justice as enacted with Closed Materials Procedures is fundamentally unjust.



This is not in the public interest.