Amendment Statement of Principles concerning posttraumatic stress disorder No. 19 of 2014

Administered by Department of Veterans' Affairs

Legislation au F2014L00066 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 19 OF 2014

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY NOTES FOR TABLING

 

 

  1. The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(10) of the Veterans’ Entitlements Act 1986 (the VEA) Amendment Statement of Principles Instrument No. 19 of 2014 concerning posttraumatic stress disorder.
  2. This instrument amends Statement of Principles Instrument No. 5 of 2008 concerning posttraumatic stress disorder as follows:
  • inserting new factors 6(ba), 6(da), 6(fa) & 6(ha) concerning 'a threatening, hostile, hazardous and/or menacing situation and/or environment'; and
  • specifying the date of effect of this amendment.

3.             The changes are made at the direction of the Specialist Medical Review Council (the SMRC) in accordance with its Declaration No. 23 dated 17 December 2013.  The SMRC Declaration appeared in the Government Notices Gazette of 19 December 2013.

4.             In accordance with subsection 196B(13) of the VEA, the changes as made by Instrument No. 19 of 2014, take effect from 19 December 2013.

5.             As these changes provide additional means by which posttraumatic stress disorder can be related to relevant service the earlier date of effect does not affect the rights of claimants so as to disadvantage them nor would it impose additional liabilities on them.

6.             No consultation was undertaken by the Authority prior to determining this Instrument, as the changes are made at the direction of the SMRC in accordance with section 196W of the VEA. The SMRC undertook public notification and consultation as part of its consideration of the matter, inviting eligible persons or organisations to make submissions. The SMRC decision, and directions to the Authority, were contained in a Declaration published in the Government Notices Gazette of 19 December 2013.

7.             This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights follows.


Statement of Compatibility with Human Rights

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

Instrument No.:   Amendment Statement of Principles No. 19 of 2014

Kind of Injury, Disease or Death: Posttraumatic stress disorder

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

1. This Legislative Instrument is determined pursuant to subsection 196B(10) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

2. This Legislative Instrument:-

  • facilitates claimants in making, and the Repatriation Commission and Military Rehabilitation and Compensation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have posttraumatic stress disorder;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • includes new factors which the current sound medical-scientific evidence indicates must as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting posttraumatic stress disorder with the circumstances of eligible service rendered by a person;
  • amends Instrument No. 5 of 2008; and
  • reflects the Specialist Medical Review Council's review of the available sound medical-scientific evidence concerning posttraumatic stress disorder considered by the Repatriation Medical Authority when that earlier instrument was determined.

3. The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the VEA and the MRCA. 

Human Rights Implications

4. This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:

  • the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];
  • the right to an adequate standard of living (Art 11, ICSECR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;
  • the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICSECR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members; and
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD).

Conclusion

This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.

 

Repatriation Medical Authority

 

 

[1] In General Comment No. 19 (The right to social security), the Committee on Economic, Social and Cultural Rights said (at paragraph 24) this to be one of the elements of ensuring accessibility to social security.

Overview

The Repatriation Medical Authority Instrument No. 19 of 2014 amends the Statement of Principles Instrument No. 5 of 2008 concerning posttraumatic stress disorder, as directed by the Specialist Medical Review Council under the Veterans’ Entitlements Act 1986 (VEA). This legislative instrument aims to improve the medico-scientific quality of outcomes under the VEA and the Military Rehabilitation and Compensation Act 2004 by introducing new factors that must exist before a reasonable hypothesis can be raised connecting posttraumatic stress disorder with service circumstances. The changes are designed to facilitate the assessment and determination of claims, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent, thereby promoting the human rights of veterans and their dependents, including the right to social security and the highest attainable standard of physical and mental health. This instrument takes effect from 19 December 2013 and does not disadvantage claimants or impose additional liabilities on them.

Scope and Application

The Repatriation Medical Authority Instrument No. 19 of 2014, issued under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, amends the Statement of Principles concerning posttraumatic stress disorder. This legislative instrument applies to veterans, current and former Defence Force members, and their dependents, who are eligible to claim benefits under the VEA and MRCA. The amendments, directed by the Specialist Medical Review Council, introduce new factors related to 'a threatening, hostile, hazardous and/or menacing situation and/or environment' to facilitate the assessment of claims for posttraumatic stress disorder. The changes, effective from 19 December 2013, do not disadvantage claimants or impose additional liabilities on them. The Repatriation Medical Authority did not undertake consultation for this instrument, as the changes were made in response to the SMRC's Declaration No. 23, which included public notification and consultation. This instrument is deemed compatible with the human rights and freedoms recognised in international instruments, promoting rights such as social security, adequate living standards, and health for veterans and their dependents.

Key Provisions

The main operative sections of the Repatriation Medical Authority Instrument No. 19 of 2014 pertain to the amendment of the Statement of Principles Instrument No. 5 of 2008 concerning posttraumatic stress disorder (PTSD). This amendment, as outlined in section 3 of the explanatory statement, inserts new factors 6(ba), 6(da), 6(fa) and 6(ha) which specify additional circumstances under which PTSD can be related to relevant service, specifically detailing 'a threatening, hostile, hazardous and/or menacing situation and/or environment'. The instrument also specifies the effective date of these amendments. The changes are made under the authority granted by subsection 196B(10) of the Veterans’ Entitlements Act 1986 (VEA) and take effect from 19 December 2013, as mandated by subsection 196B(13) of the VEA. This Act imposes obligations on the Repatriation Medical Authority, the Repatriation Commission, the Military Rehabilitation and Compensation Commission, the Veterans' Review Board, and the Administrative Appeals Tribunal to consider the newly specified factors when assessing claims for PTSD related to service. The legislation also ensures that the changes do not adversely affect the rights of existing claimants, maintaining the integrity of their entitlements. Furthermore, the Specialist Medical Review Council's directions, as detailed in Declaration No. 23 dated 17 December 2013, guide the amendments, reflecting an updated understanding of PTSD based on sound medical-scientific evidence. The Act does not explicitly outline specific offences or penalties for breaches within the explanatory statement provided. However, any breaches of the legislative requirements for assessing and determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) could potentially lead to civil or administrative consequences. These might include the need for the Repatriation Commission or the Military Rehabilitation and Compensation Commission to review and potentially revise their decisions on claims, or for the Veterans' Review Board and the Administrative Appeals Tribunal to address appeals based on the updated criteria. The precise legal consequences would depend on the nature and severity of the breach, but they are likely to involve corrective actions to ensure compliance with the legislative requirements. Overall, the Repatriation Medical Authority Instrument No. 19 of 2014 aims to enhance the clarity and fairness of the claims process for PTSD by providing more detailed criteria for relating PTSD to service, thereby improving the quality of outcomes for veterans and their dependents under the VEA and MRCA.

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