Statement of Principles concerning chilblains (Balance of Probabilities) (No. 30 of 2018)

Administered by Department of Veterans' Affairs

Legislation au F2018L00199 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

CHILBLAINS

(BALANCE OF PROBABILITIES) (NO. 30 OF 2018)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning chilblains (Balance of Probabilities) (No. 30 of 2018).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 10 of 2009, determined under subsection 196B(3) of the VEA concerning chilblains.

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that chilblains and death from chilblains can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(3) of the VEA a Statement of Principles concerning chilblains (Balance of Probabilities) (No. 30 of 2018).  This Instrument will in effect replace the revoked Statement of Principles.

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the following kinds of service rendered by a person:

 eligible war service (other than operational service) under the VEA;

 defence service (other than hazardous service and British nuclear test defence service) under the VEA;

 peacetime service under the MRCA,

before it can be said that, on the balance of probabilities, chilblains or death from chilblains is connected with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

6.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 3 May 2016 concerning chilblains in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.

7.             The contents of this Instrument are in similar terms as the revoked Instrument.  Comparing this Instrument and the revoked Instrument, the differences include:

  • adopting the latest revised Instrument format, which commenced in 2015;
  • specifying a day of commencement for the Instrument in section 2;
  • revising the definition of 'chilblains' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(1) concerning 'exposing the affected part of the body to non-freezing temperatures';
  • revising the factor in subsection 9(2) concerning 'having a disease from the specified list of diseases';
  • new factor in subsection 9(3) concerning 'body mass index';
  • deleting the factor concerning 'having a disease from the specified list', for clinical worsening only;
  • new definitions of 'BMI', 'MRCA', 'specified list of diseases' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definition of 'relevant service' in Schedule 1 - Dictionary; and
  • deleting the definition of 'a disease from the specified list'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to chilblains in the Government Notices Gazette of 3 May 2016, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants.  The Authority invited submissions from the Repatriation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field.  No submissions were received for consideration by the Authority during the investigation.

9.             On 16 October 2017, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority.  This letter emphasised the deletion of a factor relating to having a disease from the specified list, for clinical worsening only.  The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination.  No submissions were received for consideration by the Authority.  Minor changes were made to the proposed Instrument following this consultation process.

Human Rights

10.         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.

Finalisation of Investigation

11.         The determining of this Instrument finalises the investigation in relation to chilblains as advertised in the Government Notices Gazette of 3 May 2016.

References

12.         A list of references relating to the above condition is available to any person or organisation referred to in subsection 196E(1)(a) to (c) of the VEA.  Any such request must be made in writing to the Repatriation Medical Authority at the following address:

The Registrar

Repatriation Medical Authority

GPO Box 1014

BRISBANE    QLD    4001

Statement of Compatibility with Human Rights

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

 

Instrument No.:   Statement of Principles No. 30 of 2018

Kind of Injury, Disease or Death: Chilblains

 

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(8) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).  Part XIA of the VEA requires the determination of these instruments outlining the factors linking particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.

2. This Legislative Instrument:-

  • facilitates claimants in making, and the Repatriation 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 chilblains;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
  • outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, chilblains is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 10 of 2009; and
  • reflects developments in the available sound medical-scientific evidence concerning chilblains which have occurred since 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;
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
  • ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).

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 Statement of Principles concerning Chilblains (Balance of Probabilities) (No. 30 of 2018) was enacted to address the problem of establishing a connection between chilblains and service rendered by veterans and members of the Defence Force. This instrument was developed by the Repatriation Medical Authority under the authority vested in them by the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. The policy objective of this instrument is to facilitate the assessment and determination of claims for medical treatment and compensation related to chilblains by clearly outlining the necessary factors that must exist for such a connection to be established on the balance of probabilities. The instrument replaces the previously revoked Statement of Principles concerning chilblains, reflecting developments in available sound medical-scientific evidence since the earlier instrument was determined. This legislative instrument ensures that the process for evaluating claims is transparent, reasonable, and proportionate, thereby promoting the human rights of veterans, current and former Defence Force members, and their dependents, including their right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health. It does not derogate from any human rights and 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.

Scope and Application

The Statement of Principles concerning chilblains (Balance of Probabilities) (No. 30 of 2018) applies to claims made under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It outlines the medical and scientific factors that must be present for chilblains, or death from chilblains, to be considered connected to eligible service, including eligible war service, defence service, and peacetime service. The determination of these principles is intended to ensure that claims are assessed based on sound medical-scientific evidence, thereby facilitating the provision of benefits and compensation to affected veterans and service personnel. The instrument replaces the previously revoked Instrument No. 10 of 2009, reflecting updates in medical evidence and incorporating revisions to the instrument format and definitions. Although no submissions were received during the consultation process, minor changes were made to the proposed instrument following consultation with relevant organisations. The instrument is compatible with human rights, promoting the rights of veterans and service personnel to social security, an adequate standard of living, and the highest attainable standard of physical and mental health, without discrimination.

Key Provisions

The Statement of Principles concerning chilblains (Balance of Probabilities) (No. 30 of 2018), as determined by the Repatriation Medical Authority under subsection 196B(8) of the Veterans' Entitlements Act 1986, establishes the criteria for linking chilblains and death from chilblains to particular kinds of service. Section 5 of the Statement of Principles identifies the factors that must exist and be related to specific types of service—eligible war service (other than operational service) under the VEA, defence service (other than hazardous service and British nuclear test defence service) under the VEA, and peacetime service under the MRCA—to establish a connection on the balance of probabilities. This replaces the previous Instrument No. 10 of 2009. The Statement of Principles facilitates claims under the VEA and the Military Rehabilitation and Compensation Act 2004 by setting out the necessary conditions for a claim to be assessed and compensated. The Act imposes several obligations on the parties involved. Claimants must provide evidence that the factors outlined in the Statement of Principles are met, demonstrating the existence of chilblains or death from chilblains and its connection to their service. The Repatriation Commission is required to assess claims based on the criteria set out in the Statement of Principles, ensuring that claims are evaluated fairly and in accordance with the latest medical-scientific evidence. Furthermore, the Veterans' Review Board and the Administrative Appeals Tribunal are tasked with reviewing decisions made by the Repatriation Commission, ensuring that the process is transparent and that claimants' rights are protected. Breach of the obligations outlined in the Statement of Principles can lead to various consequences. For instance, submitting false or misleading information to support a claim may be considered a breach, leading to the denial of benefits or compensation. The Repatriation Commission has the authority to investigate such breaches, and if found guilty, individuals may face penalties as determined by the courts. Additionally, the Repatriation Medical Authority retains the right to revoke or amend the Statement of Principles if new evidence or circumstances warrant such action, ensuring that the criteria for claims remain accurate and up-to-date.

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