REPATRIATION MEDICAL AUTHORITY

INSTRUMENT NO. 55 of 2012

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

EXPLANATORY NOTES FOR TABLING

1. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans’ Entitlements Act 1986 (the VEA) revokes Instrument No. 75 of 2008, as amended by Instrument No. 46 of 2009, determined under subsection 196B(3) of the VEA concerning deep vein thrombosis and death from deep vein thrombosis.

2.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that deep vein thrombosis and death from deep vein thrombosis 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, Instrument No. 55 of 2012 concerning deep vein thrombosis.  This Instrument will in effect replace the revoked Statements of Principles.

3.             The provisions of the Military Rehabilitation and Compensation Act 2004 (the MRCA) relating to claims for compensation commenced on 1 July 2004.  Claims under section 319 of the MRCA for acceptance of liability for a service injury sustained, a service disease contracted or service death on or after 1 July 2004 are determined by the Military Rehabilitation and Compensation Commission by reference to Statements of Principles issued by the Authority pursuant to the VEA.

4.             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, deep vein thrombosis or death from deep vein thrombosis is connected with the circumstances of that service.

5.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 29 February 2012 concerning deep vein thrombosis 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.

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

• revising the definition of 'deep vein thrombosis' in clause 3;
• revising factor 6(a) concerning 'trauma';
• new factor 6(b) concerning 'a course of therapeutic radiation';
• new factor 6(c) concerning 'a central venous catheter, indwelling cardiac pacemaker or defibrillator leads, or implantation of another device';
• new factor 6(d) concerning 'smoking';
• revising factor 6(e) concerning 'restricted mobility';
• revising factor 6(f) concerning 'being an inpatient in a hospital or a resident in a nursing home';
• revising factor 6(g) concerning 'surgery requiring a general, spinal or epidural anaesthetic';
• revising factor 6(h) concerning 'an injury or illness as specified';
• revising factor 6(i) concerning 'immobilisation of the affected upper or lower limb';
• revising factor 6(j) concerning 'having a neurological disease causing motor impairment';
• revising factor 6(k) concerning 'a cardiac disease from the specified list';
• revising factor 6(m) concerning 'a drug or a drug from a class of drugs from the specified list';
• revising factor 6(n) concerning 'using hormone replacement therapy or using combined oestrogen-progestin contraception';
• revising factor 6(o) concerning 'external compression';
• new factor 6(p) concerning 'having osteomyelitis, an abscess or other infection';
• revising factor 6(q) concerning 'an autoimmune disease or inflammatory vasculitis from the specified list';
• revising factor 6(r) concerning 'a hypercoagulable state';
• revising factor 6(u) concerning 'being pregnant or being within the two months postpartum';
• revising factor 6(v) concerning 'superficial vein thrombosis';
• new factor 6(w) concerning 'exercise of the affected upper limb, for deep vein thrombosis in an upper limb only';
• new factor 6(x) concerning 'human immunodeficiency virus';
• new factor 6(y) concerning 'cytomegalovirus infection';
• new factor 6(z) concerning 'chronic bronchitis or emphysema';
• new factor 6(aa) concerning 'nephrotic syndrome, or any acute or chronic renal disease requiring dialysis or renal transplant';
• new factor 6(bb) concerning 'animal envenomation';
• deleting the factors concerning 'congestive cardiac failure' and 'myocardial infarction' as they are now covered by factor 6(k) concerning 'a cardiac disease from the specified list';
• deleting the factors concerning 'cytotoxic agent for malignant disease', 'thalidomide or lenalidomide', 'selective oestrogen receptor modulator' and 'erythropoietin' as they are now covered by factor 6(m) concerning 'a drug or a drug from a class of drugs from the specified list';
• deleting the factors concerning 'myeloproliferative disease', 'dysfibrinogenaemia', 'hyperhomocysteinaemia', 'protein C deficiency, protein S deficiency, antithrombin III deficiency or activated protein C resistance', 'paroxysmal nocturnal haemoglobinuria', 'antiphospholipid antibody syndrome' and 'heparin-induced thrombocytopaenia' as they are now covered by factor 6(r) concerning 'a hypercoagulable state';
• deleting the factor concerning 'space occupying lesion causing venous compression' as it is now covered by factor 6(o) concerning 'external compression';
• deleting the factors concerning 'systemic lupus erythematosus', 'Buerger's disease' and 'Behçet’s disease' as they are now covered by factor 6(q) concerning 'an autoimmune disease or inflammatory vasculitis from the specified list';
• deleting the factor concerning 'having paralysis of either or both lower limbs' as it is now covered by factor 6(j) concerning 'having a neurological disease causing motor impairment';
• deleting the factor concerning 'having varicose veins';
• deleting the factor concerning 'congenital forms of protein C deficiency, protein S deficiency, antithrombin III deficiency or activated protein C resistance';
• new definitions of 'a cardiac disease from the specified list', 'a drug or a drug from a class of drugs from the specified list', 'a hypercoagulable state', 'a neurological disease causing motor impairment', 'an autoimmune disease or inflammatory vasculitis from the specified list', 'an injury or illness as specified', 'exercise of the affected upper limb', 'external compression of the affected vein or a vein draining the affected vein', 'having restricted mobility' and 'pack-years of cigarettes, or the equivalent thereof in other tobacco products' in clause 9;
• revising the definitions of 'relevant service' and 'trauma to the affected vein' in clause 9;
• deleting the definitions of 'a selective oestrogen receptor modulator', 'activated protein C resistance', 'antiphospholipid antibody syndrome', 'antithrombin III', 'Behçet’s disease', 'being immobile', 'congestive cardiac failure', 'dysfibrinogenaemia', 'hyperhomocysteinaemia', 'ICD-10-AM code', 'malignant neoplasm', 'myeloproliferative disease', 'paralysis of either or both lower limbs', 'paroxysmal nocturnal haemoglobinuria', 'protein C deficiency', 'protein S deficiency', 'significant head injury', 'spinal cord injury' and 'superficial vein thrombosis'; and
• specifying a date of effect for the Instrument in clause 11.

7.             Further changes to the format of the Instrument reflect the commencement of the MRCA and clarify that pursuant to subsection 196B(3A) of the VEA, the Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to deep vein thrombosis in the Government Notices Gazette of 29 February 2012, 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 8 June 2012, 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 factors relating to varicose veins and having protein C deficiency, protein S deficiency, antithrombin III deficiency or activated protein C resistance. 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 typographical changes were made to the proposed Instrument following this consultation process.

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.

11.         The determining of this Instrument finalises the investigation in relation to deep vein thrombosis as advertised in the Government Notices Gazette of 29 February 2012.

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. 55 of 2012

Kind of Injury, Disease or Death: Deep vein thrombosis

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).

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 deep vein thrombosis;
• 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, deep vein thrombosis is connected with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes;
• replaces Instrument No. 75 of 2008, as amended by Instrument No. 46 of 2009; and
• reflects developments in the available sound medical-scientific evidence concerning deep vein thrombosis which have occurred since those earlier instruments were 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.