Statement of Principles concerning erectile dysfunction No. 18 of 2005

Administered by Department of Veterans' Affairs

Legislation au F2005L01462 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 18 of 2005

 

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. 98 of 1996 of 16 August 1996 and Instrument No. 17 of 2002 of 9 January 2002, each of which were determined under subsection 196B(3) of the VEA concerning impotence and death from impotence.

 

2.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that erectile dysfunction and death from erectile dysfunction 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. 18 of 2005 concerning erectile dysfunction. This Instrument will in effect replace the revoked Statements of Principles concerning impotence and death from impotence.

 

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) under the VEA;

 peacetime service under the MRCA,

 

before it can be said that, on the balance of probabilities, erectile dysfunction or death from erectile dysfunction is connected with the circumstances of that service.

 

5.             This new instrument results from an investigation notified by the Authority in the Government Notices Gazette of 22 December 2004 concerning impotence in accordance with section 196G of the Act. 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 the new Instrument are in similar terms as the revoked Instruments.  Comparing the new and the revoked Instruments, the differences include:

 

  • renaming the Instrument;
  • renaming the Instrument;
  • adopting the latest revised Instrument format, which commenced in 2003;
  • deleting the ICD code from the Instrument header;
  • rewording factors 5(a) and (w) relating to mood disorder or anxiety disorder, requiring the disorder to be clinically significant;
  • rewording factors 5(b) and (x) relating to smoking cigarettes or equivalent tobacco products, requiring smoking of at least ten pack years before clinical onset or worsening;
  • new factors 5(c) and (y) relating to hypertension;
  • new factors 5(d) and (z) relating to obesity;
  • new factors 5(e) and (za) relating to ischaemic heart disease;
  • a new factor 5(zb) relating to atherosclerotic peripheral vascular disease (at the time of the clinical worsening);
  • a new factor 5(zc) relating to non-aneurysmal aortic atherosclerotic disease (at the time of the clinical worsening);
  • a new factor 5(zd) relating to diabetes mellitus (at the time of the clinical worsening);
  • a new factor 5(ze) relating to therapeutic radiation (immediately before the clinical worsening);
  • a new factor 5(zf) relating to endocrinological disorders (at the time of the clinical worsening);
  • a new factor 5(zg) relating to trauma to the external genitals, perineum or pelvis (at the time of the clinical worsening);
  • rewording factors 5(l) and (zh) relating to traumatic injury involving the spinal cord or cauda equina within the ninety days immediately before the clinical onset or worsening, and including trauma to the brain and surgical trauma;
  • a new factor 5(zi) relating to neurological disorders (at the time of the clinical worsening);
  • a new factor 5(zj) relating to cirrhosis of the liver (at the time of the clinical worsening);
  • a new factor 5(zk) relating to chronic renal failure (at the time of the clinical worsening);
  • a new factor 5(zl) relating to alcohol dependence or alcohol abuse (at the time of the clinical worsening);
  • rewording factors 5(q), (r), (zm) and (zn) relating to being treated with a drug, differentiating between treatment with certain classes of drugs and certain drugs;
  • rewording factors 5(s) and (zo) relating to low-flow priapism, requiring the condition to be present for a continuous period of four hours or more immediately before the clinical onset or worsening;
  • a new factor 5(zp) relating to Peyronie’s disease (before the clinical worsening);
  • a new factor 5(zq) relating to haemochromatosis (before the clinical worsening);
  • a new factor 5(zr) relating to malignant neoplasm of the reproductive organs (at the time of the clinical worsening);
  • deleting the definitions of ‘alcoholic liver disease’, ‘aortic atherosclerotic disease’, ‘a specified psychiatric condition’, ‘atherosclerotic peripheral vascular disease’, ‘course of therapeutic radiation’, ‘damage to the spinal cord or cauda equina’, ‘DSM-IV’, ‘haemochromatosis’, ‘ICD code’, ‘pack-year’, ‘priapism’,’psychoactive substance abuse or dependence involving alcohol’, ‘suffering from blunt or penetrating trauma’, ‘therapeutic radiation’ and ‘undergoing a course of treatment with drugs identified in the Schedule’ in clause 8;
  • revising the definitions of ‘a specified endocrinological disorder’, ‘a specified neurological disorder’, ‘chronic renal failure’, ‘malignant neoplasm of the reproductive organs’, ‘Peyronie’s disease’ and ‘relevant service’ in clause 8;
  • including new definitions of  ‘a class of drug in Specified List 1’, ‘a course of therapeutic radiation’, ‘being obese’, ‘blunt or penetrating trauma’, ‘clinically significant’, ‘death from erectile dysfunction’, ‘drug in Specified List 2’, ‘low-flow priapism’, ‘pack years of cigarettes, or the equivalent thereof in other tobacco products’, and ‘terminal event’  in clause 8; and
  • specifying a date of effect for the Instrument in clause 10.

 

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 impotence in the Government Notices Gazettes of 22 December 2004, 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, the Military Rehabilitation and Compensation Commission, organisations and persons referred to in section 196E of the VEA (who include persons eligible to make a claim under the MRCA), and any person having expertise in the field. No submissions were received for consideration by the Authority during the investigation.

 

9.             The determining of this new instrument finalises the investigation in relation to impotence as advertised in the Government Notices Gazettes of 22 December 2004.

 

10.         A list of references relating to the above condition is available, on written request, from the Repatriation Medical Authority Secretariat.

Overview

The Repatriation Medical Authority Instrument No. 18 of 2005 was enacted to address the issue of erectile dysfunction and death from erectile dysfunction in relation to service, updating and replacing the previous Instruments No. 98 of 1996 and No. 17 of 2002 concerning impotence and death from impotence, respectively. This new instrument was determined under subsection 196B(3) of the Veterans’ Entitlements Act 1986, reflecting the Authority’s view that it is more probable than not that erectile dysfunction and death from erectile dysfunction can be related to particular kinds of service. The policy objective of this new instrument is to establish a Statement of Principles that outlines the factors that must exist and be related to the service rendered by a person before it can be said that, on the balance of probabilities, erectile dysfunction or death from erectile dysfunction is connected with the circumstances of that service. This legislative update ensures that claims for compensation under the Military Rehabilitation and Compensation Act 2004 are assessed in light of the most current medical-scientific evidence available.

Scope and Application

The Repatriation Medical Authority Instrument No. 18 of 2005, concerning erectile dysfunction, is issued under the Veterans’ Entitlements Act 1986 and applies to individuals who have experienced erectile dysfunction that can be connected to their service in the armed forces. This connection must be established in relation to eligible war service (other than operational service), defence service (other than hazardous service), or peacetime service, as outlined in the Veterans’ Entitlements Act and the Military Rehabilitation and Compensation Act 2004. The Instrument applies nationally across Australia and is designed to provide a clear framework for determining the eligibility of veterans for compensation claims related to erectile dysfunction. The Instrument revokes previous Statements of Principles concerning impotence and death from impotence, incorporating updated medical-scientific evidence and revised criteria to address erectile dysfunction comprehensively. Notably, the Instrument does not explicitly mention exclusions or exemptions, but it does specify the types of service and conditions that must be met for a claim to be considered valid. The Authority may extend or restrict the application of this Instrument through subordinate instruments, aligning with the broader legislative intent and medical evidence available.

Key Provisions

The main operative sections of this legislation, specifically Instrument No. 18 of 2005, outline the determination by the Repatriation Medical Authority (the Authority) of a new Statement of Principles concerning erectile dysfunction, replacing previous Statements of Principles related to impotence and death from impotence. This Statement of Principles, determined under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (the VEA), sets forth the specific factors that must exist and be related to certain kinds of service for erectile dysfunction or death from erectile dysfunction to be considered connected with the circumstances of that service. These kinds of service include eligible war service, defence service, and peacetime service. The Statement of Principles also takes into account various medical conditions and treatments that may contribute to or be associated with erectile dysfunction, such as mood disorders, smoking, hypertension, obesity, ischaemic heart disease, and others. The obligations imposed by this Act on the parties or entities it governs include the requirement for the Authority to consider all sound medical-scientific evidence available when determining the connection between erectile dysfunction and service. The Authority must also ensure that the new Statement of Principles is communicated to relevant parties, including veterans, service personnel, and their dependants, as well as any experts or organisations with relevant expertise. This is done through advertising the intention to investigate and inviting submissions from interested parties, as was done in this case. The Statement of Principles must be determined in a manner that is fair and transparent, taking into account all relevant evidence and submissions. There are no specific offences, penalties, or consequences outlined in the explanatory statement for breach of the provisions of this Act or the Statement of Principles. However, any claims for compensation under the Military Rehabilitation and Compensation Act 2004 (the MRCA) must be made in accordance with the requirements of the Act and the Statement of Principles. Failure to comply with these requirements could result in a claim being rejected or denied. The MRCA provides for various civil and criminal penalties for false or misleading statements made in the course of making a claim for compensation, but these are not detailed in the explanatory statement. The maximum penalties for such offences under the MRCA can include fines and imprisonment, depending on the nature and severity of the offence.

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