Statement of Principles concerning epileptic seizure No. 78 of 2013

Administered by Department of Veterans' Affairs

Legislation au F2013L01899 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 78 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. 48 of 2005, as amended by Instrument No. 38 of 2009, determined under subsection 196B(3) of the VEA concerning epileptic seizure.

 

2.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that epileptic seizure and death from epileptic seizure 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. 78 of 2013 concerning epileptic seizure.  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, epileptic seizure or death from epileptic seizure 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 18 May 2011 concerning epileptic seizure 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:

 

  • new definition of 'epileptic seizure' in clause 3;
  • revising factor 6(a) concerning 'a moderate to severe traumatic brain injury';
  • revising factor 6(b) concerning 'concussion';
  • new factor 6(c) concerning 'a surgical procedure which involves a craniotomy';
  • revising factor 6(d) concerning 'a cerebrovascular accident or subarachnoid haemorrhage';
  • revising factor 6(e) concerning 'an hypoxic cerebral insult';
  • new factor 6(g) concerning 'an autoimmune disorder affecting the brain';
  • revising factor 6(h) concerning 'carbon monoxide poisoning';
  • revising factor 6(i) concerning 'an intracranial space-occupying lesion';
  • revising factor 6(j) concerning 'an infection of the brain or meninges';
  • revising factor 6(k) concerning 'human immunodeficiency virus';
  • revising factor 6(l) concerning 'using a drug from Specified List 1';
  • new factor 6(m) concerning 'dementia';
  • new factor 6(n) concerning 'a specified physical stimulus';
  • revising factor 6(o) concerning 'alcohol';
  • revising factor 6(t) concerning 'acute renal failure' or 'chronic renal disease requiring renal transplantation or dialysis';
  • revising factor 6(u) concerning 'renal dialysis';
  • revising factor 6(v) concerning 'a solid organ or stem cell transplantation';
  • revising factor 6(w) concerning 'a drug or a drug from a class of drugs';
  • new factor 6(x) concerning 'taking a drug';
  • new factor 6(aa) concerning 'a medical condition from the specified list affecting the brain';
  • new factor 6(dd) concerning 'a neurotoxic substance, or a food or compound containing a neurotoxic substance';
  • new factor 6(ee) concerning 'a specified metal';
  • new factor 6 (ff) concerning 'animal envenomation';
  • deleting factors concerning 'Alzheimer's disease' and 'Creutzfeldt-Jakob disease', as they are now covered by factor 6(m) concerning 'dementia';
  • deleting a factor concerning 'reflex epilepsy' which is now covered by the Statements of Principles concerning epilepsy;
  • deleting a factor concerning 'multiple sclerosis' as it is now covered by factor 6(aa) concerning 'a medical condition from the specified list affecting the brain';
  • deleting factors concerning 'organochlorine insecticide' and 'RDX' as they are now covered by factor 6(dd) concerning 'a neurotoxic substance, or a food or compound containing a neurotoxic substance';
  • deleting a factor concerning 'being stung by a scorpion' as it is now covered by factor 6 (ff) concerning 'animal envenomation';
  • deleting a factor concerning 'having not slept within the forty-eight hours' as it is now covered by factor 6(n) concerning 'a physical stimulus';
  • new definitions of 'a drug or a drug from a class of drugs from the specified list', 'a medical condition from the specified list', 'a moderate to severe alcohol use disorder', 'a neurotoxic substance or a food or compound containing a neurotoxic substance', 'a specified metal', 'a specified physical stimulus', 'alcohol intoxication', 'an autoimmune disorder affecting the brain', 'an hypoxic cerebral insult', 'an inhalant', 'alcohol', 'dementia', 'signs and symptoms of poisoning' and 'sleep deprivation' in clause 9;
  • revising the definitions of 'a drug from Specified List 1', 'acute renal failure', 'an infection of the brain or meninges', 'an intracranial space-occupying lesion' and 'relevant service' in clause 9;
  • deleting the definitions of 'a class of drug from Specified List 2', 'a mild head injury', 'cerebral trauma', 'chronic renal failure' and 'reflex epilepsy' 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 epileptic seizure 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 epileptic seizure 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. 78 of 2013

Kind of Injury, Disease or Death: Epileptic seizure

 

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 epileptic seizure;
  • 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, epileptic seizure 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. 48 of 2005, as amended by Instrument No. 38 of 2009; and
  • reflects developments in the available sound medical-scientific evidence concerning epileptic seizure which have occurred since these 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.

Overview

The Repatriation Medical Authority Instrument No. 78 of 2013 amends the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 by updating the Statement of Principles concerning epileptic seizure. The legislation was enacted to address the issue of determining the circumstances under which epileptic seizures, or death from epileptic seizure, can be connected to eligible service. This Instrument, determined by the Repatriation Medical Authority under the Veterans' Entitlements Act 1986, aims to facilitate claims for compensation and medical treatment for veterans and Defence Force members suffering from epileptic seizures. The Authority's determination follows a review of the sound medical-scientific evidence, replacing previous Instruments from 2005 and 2009 with updated criteria and factors that may contribute to the onset of epileptic seizures. The policy objective of this Instrument is to ensure that the criteria for compensation and medical treatment are reasonable, proportionate, and transparent, thereby promoting human rights, including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health.

Scope and Application

The Repatriation Medical Authority Instrument No. 78 of 2013, concerning epileptic seizure, applies to persons and entities under the jurisdiction of the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This includes veterans, current and former Defence Force members, and their dependents who have sustained or contracted an injury or disease in the course of eligible service. The Instrument sets out the factors that must exist for epileptic seizure or death from epileptic seizure to be connected with service, thereby facilitating claims for compensation and medical treatment. The Instrument’s geographic reach extends to the national level, as it applies to service rendered both during war and peacetime, including eligible war service, defence service, and peacetime service. The Instrument replaces previous instruments concerning epileptic seizure and incorporates recent developments in sound medical-scientific evidence. Any exclusions or exemptions are not explicitly stated within the provided text; however, the Instrument’s scope is limited to the specific factors outlined within its clauses. Subordinate instruments may further extend or restrict the application of this Instrument as necessary.

Key Provisions

The Repatriation Medical Authority has issued Instrument No. 78 of 2013 under subsection 196B(8) of the Veterans’ Entitlements Act 1986 (VEA) (paragraph 1). This Instrument revokes the previous Instrument No. 48 of 2005, as amended by Instrument No. 38 of 2009, concerning epileptic seizure and replaces it with a new Statement of Principles (paragraph 2). The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the service rendered by a person, before it can be said that, on the balance of probabilities, epileptic seizure or death from epileptic seizure is connected with the circumstances of that service (paragraph 4). This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 18 May 2011 concerning epileptic seizure in accordance with section 196G of the VEA (paragraph 5). The Act imposes obligations on claimants to ensure that they meet the criteria set out in the Statement of Principles when making a claim for compensation under the VEA or the Military Rehabilitation and Compensation Act 2004 (MRCA). The Repatriation Medical Authority is responsible for determining the Statement of Principles, which sets out the circumstances in which medical treatment and compensation can be extended to eligible persons who have epileptic seizure. The Military Rehabilitation and Compensation Commission is responsible for assessing claims under the MRCA by reference to the Statements of Principles issued by the Authority. The Veterans' Review Board and the Administrative Appeals Tribunal are responsible for reviewing decisions made by the Repatriation Commission and the Military Rehabilitation and Compensation Commission. There are no specific offences or penalties outlined in the Act. However, failure to comply with the requirements of the Act may result in the denial of a claim for compensation. The maximum penalty for any offence under the VEA or the MRCA is a fine of up to $22,200 for individuals and $111,000 for bodies corporate, or imprisonment for up to two years, or both. However, these penalties are not specifically related to the provisions concerning epileptic seizure. It is important to note that the Act 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, the right to an adequate standard of living, and the right to the enjoyment of the highest attainable standard of physical and mental health (paragraphs 3 and 4).

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