Statement of Principles concerning dental caries (Reasonable Hypothesis) (No. 122 of 2015)

Administered by Department of Veterans' Affairs

Legislation au F2015L01675 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 122 of 2015

 

VETERANS’ ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

EXPLANATORY STATEMENT

 

 

  1. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), revokes Instrument No. 71 of 2007 determined under subsection 196B(2) of the VEA concerning dental caries.
  2. The Authority is of the view that there is sound medical-scientific evidence that indicates that dental caries and death from dental caries 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 dental caries (Reasonable Hypothesis) (No. 122 of 2015).  This Instrument will in effect replace the revoked Statement of Principles.

Purpose and Operation

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

4.             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 dental caries or death from dental caries, with the circumstances of that service.  The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.

5.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 31 October 2012 concerning dental caries 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 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 ICD-10-AM codes in subsection 7(3);
  • revising the reference to 'ICD-10-AM code' in subsection 7(4);
  • revising the factor in subsection 9(2) concerning 'fermentable dietary carbohydrates';
  • new factor in subsection 9(3) concerning 'smoking';
  • revising the factor in subsection 9(5) concerning 'effective personal dental hygiene';
  • revising the factor in subsection 9(7) concerning 'hyposalivation';
  • revising the factor in subsection 9(8) concerning 'xerostomia';
  • revising the factor in subsection 9(9) concerning 'an acquired enamel defect';
  • revising the factor in subsection 9(10) concerning 'gingival recession', for root surface caries only;
  • new definitions of 'being exposed to fermentable dietary carbohydrates as specified', 'hyposalivation', 'MRCA', 'pack-years of cigarettes, or the equivalent thereof in other tobacco products' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definitions of 'exposure to fluoride' and 'relevant service' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'a course of therapeutic radiation', 'being exposed to fermentable dietary carbohydrates', 'extreme or catastrophic hyposalivation' and 'oral hygiene'.

Consultation

7.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to dental caries in the Government Notices Gazette of 31 October 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.

Human Rights

8.             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

9.             The determining of this Instrument finalises the investigation in relation to dental caries as advertised in the Government Notices Gazette of 31 October 2012.

References

10.         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. 122 of 2015

Kind of Injury, Disease or Death: Dental caries

 

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 dental caries;
  • 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 dental caries with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Statement;
  • replaces Instrument No. 71 of 2007; and
  • reflects developments in the available sound medical-scientific evidence concerning dental caries 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 Repatriation Medical Authority Instrument No. 122 of 2015, issued under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), was enacted to address the gap in recognising the connection between dental caries and certain types of military service. The Authority determined that there is sufficient medical-scientific evidence to establish a reasonable hypothesis linking dental caries and death from dental caries to specific service conditions. The primary objective of this legislation is to facilitate the assessment and determination of claims for dental caries by specifying the minimum factors that must exist and be related to particular types of service to support a claim under the VEA and MRCA. This instrument replaces the previous Instrument No. 71 of 2007, incorporating the latest medical-scientific evidence and revised ICD-10-AM codes. The Authority's determination ensures that the process of assessing and adjudicating claims is both transparent and evidence-based, ultimately promoting the human rights of veterans and service members by ensuring their entitlement to social security and healthcare benefits without discrimination.

Scope and Application

The Repatriation Medical Authority Instrument No. 122 of 2015 pertains to the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, replacing the previously revoked Instrument No. 71 of 2007 concerning dental caries. This legislative instrument sets out the Statement of Principles, outlining the minimum factors that must exist to establish a reasonable hypothesis connecting dental caries or death from dental caries to certain types of service rendered by a person. The types of service include operational, peacekeeping, hazardous service, British nuclear test defence service under the Veterans' Entitlements Act, and warlike and non-warlike service under the Military Rehabilitation and Compensation Act. This instrument applies to claimants making claims under the aforementioned acts and aims to facilitate the assessment of such claims by the Repatriation Commission, as well as the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal. The instrument also ensures compatibility with human rights, promoting various rights including the right to social security and the highest attainable standard of physical and mental health.

Key Provisions

The main operative sections of this legislation involve the revocation of Instrument No. 71 of 2007 and the determination of a new Statement of Principles (Reasonable Hypothesis) concerning dental caries (No. 122 of 2015) (section 3). This Statement of Principles outlines the circumstances under which a reasonable hypothesis can be raised that dental caries or death from dental caries is related to specific kinds of military service (section 4). The Statement of Principles is intended to replace the revoked instrument and reflects recent advancements in medical-scientific evidence (section 5). This determination is made pursuant to subsection 196B(2) of the Veterans' Entitlements Act 1986 (VEA) and will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) (sections 3 and 4). The obligations imposed by the Act include the necessity for claimants to demonstrate that certain factors, as outlined in the Statement of Principles, exist and are related to the service rendered (section 4). These factors include exposure to fermentable dietary carbohydrates, smoking, effective personal dental hygiene, hyposalivation, xerostomia, acquired enamel defects, and gingival recession, among others (subsection 9). The Repatriation Commission must consider these factors when assessing claims, and the Veterans' Review Board and Administrative Appeals Tribunal may review decisions made under the Act (section 2). The Authority is also required to ensure compatibility with human rights and freedoms as recognised or declared in international instruments (section 8). Breaches of the provisions outlined in this legislation may result in civil or criminal consequences, depending on the nature of the offence. The exact penalties are not specified within this document but would be determined according to the relevant Acts (VEA and MRCA) and the severity of the breach. For instance, knowingly providing false or misleading information to the Repatriation Commission could lead to penalties under the VEA, which may include fines or imprisonment. Similarly, any failure to comply with the obligations imposed by the Act could result in legal action or penalties as stipulated in the relevant legislation. This legislation ensures that the Repatriation Medical Authority can determine and update Statements of Principles concerning specific medical conditions, such as dental caries, based on the most recent medical-scientific evidence. By doing so, it facilitates the assessment of claims and the provision of benefits to eligible veterans and Defence Force members. It also ensures that the rights of these individuals, including their right to social security and an adequate standard of living, are protected and exercised without discrimination.

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