Statement of Principles concerning epilepsy No. 75 of 2013

Administered by Department of Veterans' Affairs

Legislation au F2013L01894 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 75 of 2013

 

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. 49 of 2005, determined under subsection 196B(2) of the VEA concerning epilepsy.

 

2.             The Authority is of the view that there is sound medical-scientific evidence that indicates that epilepsy and death from epilepsy 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, Instrument No. 75 of 2013 concerning epilepsy.  This Instrument will in effect replace the revoked Statement 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 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 epilepsy or death from epilepsy, with the circumstances of that service.

 

5.             This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 18 May 2011 concerning epilepsy 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:

 

  • new definition of 'epilepsy' in clause 3;
  • revising factors 6(a) & 6(o) concerning 'a moderate to severe traumatic brain injury';
  • revising factors 6(b) & 6(p) concerning 'concussion';
  • new factors 6(c) & 6(q) concerning 'a surgical procedure which involves a craniotomy';
  • revising factors 6(d) & 6(r) concerning 'a cerebrovascular accident or subarachnoid haemorrhage';
  • revising factors 6(e) & 6(s) concerning 'an hypoxic cerebral insult';
  • new factors 6(g) & 6(u) concerning 'an autoimmune disorder affecting the brain';
  • revising factors 6(j) & 6(x) concerning 'human immunodeficiency virus';
  • new factors 6(k) & 6(y) concerning 'dementia';
  • revising factors 6(l) & 6(z) concerning 'alcohol';
  • new factors 6(m) & 6(aa) concerning 'a medical condition from the specified list affecting the brain';
  • new factor 6(bb) concerning 'sleep apnoea', for clinical worsening of epilepsy only;
  • new factors 6(n)(i) & 6(cc)(i) concerning 'a sensory stimulus', for reflex epilepsy only;
  • new factors 6(n)(ii) & 6(cc)(ii) concerning 'a repetitive task involving intense concentration', for reflex epilepsy only;
  • deleting factors concerning 'Alzheimer's disease' and 'Creutzfeldt-Jakob disease', as they are now covered by factors 6(k) & 6(y) concerning 'dementia';
  • deleting factors concerning 'multiple sclerosis', as they are now covered by factors 6(m) & 6(aa) concerning 'a medical condition from the specified list affecting the brain';
  • new definitions of 'a medical condition from the specified list', 'a moderate to severe alcohol use disorder', 'a sensory stimulus', 'an autoimmune disorder affecting the brain', 'an hypoxic cerebral insult', 'alcohol', 'dementia' and 'reflex epilepsy' in clause 9;
  • revising the definitions of 'an infection of the brain or meninges', 'an intracranial space-occupying lesion' and 'relevant service' in clause 9;
  • deleting the definitions of 'a mild head injury' and 'cerebral trauma' in clause 9; 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 epilepsy in the Government Notices Gazette of 18 May 2011, 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.             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.

 

10.         The determining of this Instrument finalises the investigation in relation to epilepsy as advertised in the Government Notices Gazette of 18 May 2011.

 

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. 75 of 2013

Kind of Injury, Disease or Death: Epilepsy

 

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 epilepsy;
  • 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 epilepsy with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes;
  • replaces Instrument No. 49 of 2005; and
  • reflects developments in the available sound medical-scientific evidence concerning epilepsy 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; 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. 75 of 2013, under the Veterans' Entitlements Act 1986, addresses the gap in the recognition of epilepsy as a service-related condition for veterans. The Act was enacted to revise the previous Statement of Principles concerning epilepsy, updating it to reflect the latest medical-scientific evidence. This revision was necessary due to the evolving understanding of the relationship between epilepsy and specific types of military service. The policy objective is to facilitate claims for medical treatment and compensation by clearly defining the circumstances under which epilepsy can be considered service-related, thereby ensuring that eligible veterans receive appropriate support and benefits. The Instrument is designed to streamline the assessment process for claims under both the Veterans' Entitlements Act and the Military Rehabilitation and Compensation Act 2004, reflecting developments in medical science since the previous Instrument was determined. This legislative instrument aims to improve the medico-scientific quality of outcomes and ensure that the rights of veterans, including those with disabilities, are adequately protected and promoted.

Scope and Application

The Repatriation Medical Authority Instrument No. 75 of 2013, determined under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), establishes the circumstances under which medical treatment and compensation can be extended to eligible persons who have epilepsy. This legislation applies to veterans, current and former Defence Force members, and other eligible persons, including their dependents, who have contracted epilepsy as a result of their service. The geographic reach of this Act is national, as it applies across Australia and is relevant to individuals who have rendered various kinds of service, including operational, peacekeeping, hazardous, and British nuclear test defence service under the VEA, as well as warlike and non-warlike service under the MRCA. The Act specifies the factors that must exist to establish a connection between epilepsy or death from epilepsy and the circumstances of the service rendered, as outlined in the Statement of Principles. The Act revokes the previous Instrument No. 49 of 2005 and includes new definitions and factors reflecting recent medical-scientific evidence concerning epilepsy. It also clarifies that the Statement of Principles applies to both the VEA and the MRCA. This Instrument is compatible with human rights and does not derogate from any human rights, promoting the rights of veterans, 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.

Key Provisions

The main operative sections of Instrument No. 75 of 2013, as determined under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), include the revocation of Instrument No. 49 of 2005 and the establishment of a new Statement of Principles concerning epilepsy (section 2). This new Instrument outlines the circumstances under which epilepsy and death from epilepsy can be connected to particular kinds of service, including operational, peacekeeping, hazardous, British nuclear test defence, warlike, and non-warlike services (section 4). The Instrument also revises various factors and definitions related to epilepsy, such as the definition of "epilepsy" and factors concerning traumatic brain injury, concussion, and various medical conditions (section 6). These provisions serve to clarify the conditions under which veterans and Defence Force members can claim compensation and medical treatment for epilepsy related to their service. The obligations imposed by the Act on the parties it governs include the requirement for claimants to provide evidence of their service and the onset of their condition, in accordance with the factors outlined in the Statement of Principles (section 4). The Repatriation Medical Authority (the Authority) is responsible for determining and revising the Statement of Principles based on sound medical-scientific evidence, and for advertising its intention to investigate and inviting submissions from relevant parties (section 7). The Authority must also ensure that the Instrument is compatible with human rights as recognised in international instruments (section 11). The Repatriation Commission, Veterans' Review Board, and Administrative Appeals Tribunal must then assess claims and decisions in accordance with the provisions of the Instrument (section 2). The Act does not explicitly outline offences, penalties, or civil/criminal consequences for breach. However, the failure to comply with the requirements of the Instrument or to provide evidence in accordance with the Statement of Principles may result in the rejection of a claim for compensation or medical treatment. The Authority may also conduct investigations and reviews of decisions made under the VEA and the MRCA, which may lead to further determinations or revisions of the Statement of Principles. The compatibility of the Instrument with human rights ensures that the rights of veterans, Defence Force members, and their dependents are protected and promoted.

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