Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016)

Administered by Department of Veterans' Affairs

Legislation au F2016L00557 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

STATEMENT OF PRINCIPLES CONCERNING

CHOLELITHIASIS

(REASONABLE HYPOTHESIS) (NO. 51 OF 2016)

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016).

Background

2.             The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 7 of 2008, determined under subsection 196B(2) of the VEA concerning cholelithiasis.

3.             The Authority is of the view that there is sound medical-scientific evidence that indicates that cholelithiasis and death from cholelithiasis can be related to particular kinds of service.  The Authority has therefore determined pursuant to subsection 196B(2) of the VEA a Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016).  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 as a minimum exist, and which of those factors must be related to the following kinds of service rendered by a person:

 operational service under the VEA;

 peacekeeping service under the VEA;

 hazardous service under the VEA;

 British nuclear test defence service under the VEA;

 warlike service under the MRCA;

 non-warlike service under the MRCA,

before it can be said that a reasonable hypothesis has been raised connecting cholelithiasis or death from cholelithiasis, 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 12 May 2015 concerning cholelithiasis 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 'cholelithiasis' in subsection 7(2);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(2) and new factor in subsection 9(25) concerning 'rapid and extreme weight loss';
  • new factors in subsections 9(3) & 9(26) concerning 'a very low calorie diet';
  • new factors in subsections 9(4) & 9(27) concerning 'bariatric surgery';
  • revising the factor in subsection 9(5) and new factor in subsection 9(28) concerning 'a drug or a drug from a class of drugs';
  • new factors in subsections 9(7) & 9(30) concerning 'non-alcoholic fatty liver disease';
  • new factors in subsections 9(8) & 9(31) concerning 'hepatitis C virus infection', for males only;
  • revising the factor in subsection 9(10) and new factor in subsection 9(33) concerning 'Crohn's disease';
  • revising the factor in subsection 9(13) and new factor in subsection 9(36) concerning 'total parenteral nutrition';
  • revising the factor in subsection 9(15) and new factor in subsection 9(38) concerning 'estrogen therapy';
  • revising the factor in subsection 9(17) and new factor in subsection 9(40) concerning 'a gastric or oesophageal resection, or another operation that included a vagotomy';
  • revising the factor in subsection 9(19) and new factor in subsection 9(42) concerning 'a parasitic disease';
  • new factors in subsections 9(21) & 9(44) concerning 'cholangiohepatitis or recurrent pyogenic cholangitis';
  • new factors in subsections 9(22) & 9(45) concerning 'somatostatinoma';
  • new factors in subsections 9(23) & 9(46) concerning 'physical activity';
  • new factor in subsection 9(24) concerning 'obesity', for clinical worsening;
  • new factor in subsection 9(29) concerning 'cirrhosis of the liver', for clinical worsening;
  • new factor in subsection 9(32) concerning 'haemolytic disease', for clinical worsening;
  • new factor in subsection 9(34) concerning 'ileal resection or ileal bypass', for clinical worsening;
  • new factor in subsection 9(35) concerning 'type 2 diabetes mellitus', for clinical worsening;
  • new factor in subsection 9(37) concerning 'being pregnant', for clinical worsening;
  • new factor in subsection 9(39) concerning 'spinal cord injury', for clinical worsening;
  • new factor in subsection 9(41) concerning 'a foreign body in the biliary tract, or a mechanical obstruction of the biliary tract', for clinical worsening;
  • new factor in subsection 9(43) concerning 'bacterial infection', for clinical worsening;
  • new definitions of 'bariatric surgery', 'BMI', 'Crohn's disease', 'estrogen therapy', 'MET', 'MRCA', 'non-alcoholic fatty liver disease', 'somatostatinoma', 'specified list of drugs', specified list of parasitic diseases', 'VEA' and 'very low calorie diet' in Schedule 1 - Dictionary;
  • revising the definitions of 'being obese', 'foreign body', 'rapid and extreme weight loss', 'relevant service', 'total parenteral nutrition' and 'type 2 diabetes mellitus' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'a drug from the specified list', 'fascioliasis' and 'oestrogen therapy'.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to cholelithiasis in the Government Notices Gazette of 12 May 2015, 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.

Human Rights

9.             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

10.         The determining of this Instrument finalises the investigation in relation to cholelithiasis as advertised in the Government Notices Gazette of 12 May 2015.

References

11.         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. 51 of 2016

Kind of Injury, Disease or Death: Cholelithiasis

 

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 cholelithiasis;
  • 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 as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting cholelithiasis with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
  • replaces Instrument No. 7 of 2008; and
  • reflects developments in the available sound medical-scientific evidence concerning cholelithiasis 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 cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016) is an instrument determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This instrument was introduced to address the medical-scientific evidence linking cholelithiasis, or gallstones, and death from cholelithiasis to certain kinds of military service. The primary purpose of this instrument is to outline the minimum factors that must exist for a reasonable hypothesis to connect cholelithiasis or death from cholelithiasis with the service circumstances, thus facilitating claims for medical treatment and compensation. The instrument replaces an earlier statement of principles and incorporates updated medical-scientific evidence concerning the condition. The Repatriation Medical Authority, acting under subsection 196B(8) of the Veterans' Entitlements Act 1986, determined this instrument following an investigation initiated in 2015. The instrument specifies the circumstances under which veterans, current and former Defence Force members, and their dependents can claim benefits for cholelithiasis. It reflects the latest medical-scientific evidence available and promotes the human rights of affected individuals by ensuring the qualifying conditions for benefits are reasonable, proportionate, and transparent. This instrument also facilitates the assessment and determination of compensation and benefits in relation to treatment and rehabilitation, thus supporting the rights to social security and an adequate standard of living.

Scope and Application

The Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016) applies to eligible persons who have developed cholelithiasis as a result of certain kinds of service rendered under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). The Statement of Principles sets out the minimum factors that must exist, and which must be related to specific types of service, before it can be said that a reasonable hypothesis has been raised connecting cholelithiasis or death from cholelithiasis with the circumstances of that service. The legislation operates on a national level and replaces the previously revoked Instrument No. 7 of 2008. The determination of this instrument finalises the investigation in relation to cholelithiasis as advertised in the Government Notices Gazette of 12 May 2015. No submissions were received for consideration by the Authority during the investigation. The instrument is compatible with human rights and promotes various rights of veterans, current and former Defence Force members, and other persons such as their dependents.

Key Provisions

The Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016) (the Instrument) outlines the minimum factors that must exist to establish a reasonable hypothesis connecting cholelithiasis or death from cholelithiasis with particular kinds of service rendered by a person. These factors are relevant for operational, peacekeeping, hazardous, and British nuclear test defence service under the Veterans' Entitlements Act 1986 (VEA), as well as warlike and non-warlike service under the Military Rehabilitation and Compensation Act 2004 (MRCA). This Statement of Principles is crucial for determining claims and assessing compensation for eligible veterans and Defence Force members suffering from cholelithiasis (section 5). The Instrument imposes specific obligations on claimants, the Repatriation Commission, and other relevant authorities. Claimants must provide evidence linking their cholelithiasis to their service, ensuring that the factors outlined in the Statement of Principles are met. The Repatriation Commission, in turn, is required to assess these claims based on the medical-scientific evidence presented and the criteria specified in the Instrument. The Instrument also facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal, ensuring that claimants have access to a fair and thorough review process (section 2). Breaches of the requirements set out in the Statement of Principles may lead to legal consequences. However, the primary focus of this Instrument is on ensuring that claimants receive appropriate medical treatment and compensation, rather than imposing strict penalties. The Repatriation Medical Authority, which determines these Instruments, is tasked with ensuring the accuracy and relevance of the medical-scientific evidence supporting the factors outlined in the Statement of Principles. Failure to comply with the requirements may result in the denial of claims, but there are no specific criminal or civil penalties outlined in the text for non-compliance with the Instrument itself (section 6). The Instrument reflects developments in the available sound medical-scientific evidence concerning cholelithiasis, including new factors such as rapid and extreme weight loss, a very low-calorie diet, bariatric surgery, and various medical conditions and treatments that may contribute to cholelithiasis. These updates ensure that the Statement of Principles remains relevant and based on the most current medical understanding (section 7). In conclusion, the Statement of Principles concerning cholelithiasis (Reasonable Hypothesis) (No. 51 of 2016) provides a clear framework for assessing claims related to cholelithiasis in veterans and Defence Force members. It sets out the minimum factors that must exist to establish a reasonable hypothesis connecting the condition with relevant service, ensuring that claimants receive appropriate medical treatment and compensation. The Instrument also facilitates the review process, promoting fairness and transparency in the claims process.

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