Statement of Principles concerning fracture (Balance of Probabilities) (No. 95 of 2015)

Administered by Department of Veterans' Affairs

Legislation au F2015L01343 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 95 of 2015

 

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. 54 of 2006, determined under subsection 196B(3) of the VEA concerning fracture.
  2. The Authority is of the view that there is sound medical-scientific evidence that indicates that fracture and death from fracture 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 concerning fracture (Balance of Probabilities) (No. 95 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 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, fracture or death from fracture is connected 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 2 May 2012 concerning fracture 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 factors in subsections 9(1) & 9(13) concerning 'physical trauma';
  • new factor in subsection 9(3) concerning 'significant biomechanical abnormality', for stress fracture of the lower limb only;
  • revising factors in subsections 9(8) & 9(16) concerning 'osteomyelitis';
  • new factors in subsections 9(11) & 9(17) concerning 'osteogenesis imperfecta';
  • new factor in subsection 9(12)(a) concerning 'smoking', for minimal trauma fracture only;
  • new factor in subsection 9(12)(b) concerning 'alcohol', for minimal trauma fracture only;
  • new factor in subsection 9(12)(c) concerning 'diabetes mellitus', for minimal trauma fracture only;
  • new factor in subsection 9(12)(d) concerning 'human immunodeficiency virus', for minimal trauma fracture only;
  • new factor in subsection 9(12)(e) concerning 'glucocorticoid drugs', for minimal trauma fracture only;
  • new factor in subsection 9(12)(f) concerning 'rheumatoid arthritis', for minimal trauma fracture only;
  • new factor in subsection 9(12)(g) concerning 'an aromatase inhibitor', for minimal trauma fracture only;
  • new factor in subsection 9(18) concerning 'diabetes mellitus';
  • new factors in subsection 9(19) concerning 'human immunodeficiency virus';
  • new factor in subsection 9(20) concerning 'glucocorticoid drugs';
  • new factor in subsection 9(21) concerning 'rheumatoid arthritis';
  • new factor in subsection 9(22) concerning 'an aromatase inhibitor';
  • new definitions of 'alcohol', 'glucocorticoid drug as specified', 'minimal trauma fracture', 'MRCA', 'pack-years of cigarettes, or the equivalent thereof in other tobacco products', 'significant biomechanical abnormality' and 'VEA' in Schedule 1 - Dictionary; and
  • revising the definition of 'relevant service' in Schedule 1 – Dictionary.

Consultation

7.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to fracture in the Government Notices Gazette of 2 May 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.  One submission was 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 fracture as advertised in the Government Notices Gazette of 2 May 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. 95 of 2015

Kind of Injury, Disease or Death: Fracture

 

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 fracture;
  • 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, fracture 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. 54 of 2006; and
  • reflects developments in the available sound medical-scientific evidence concerning fracture 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 Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004 established the framework for providing benefits to veterans and members of the Australian Defence Force. To enhance the medico-scientific quality of outcomes under these Acts, the Repatriation Medical Authority revoked Instrument No. 54 of 2006 concerning fracture and determined a new Statement of Principles concerning fracture (Balance of Probabilities) No. 95 of 2015. This new Instrument, enacted by the Repatriation Medical Authority under the authority of subsection 196B(8) of the Veterans' Entitlements Act, aims to ensure that the qualifying conditions for benefits related to fracture are reasonable, proportionate, and transparent. It also facilitates the assessment and determination of social security benefits, ensuring that claimants receive the support they are entitled to in a fair and efficient manner. This new Instrument replaces the previous one and incorporates the latest available sound medical-scientific evidence concerning fracture. It is compatible with human rights, promoting the rights of veterans and Defence Force members 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. 95 of 2015, under subsection 196B(8) of the Veterans' Entitlements Act 1986 (VEA), revokes the previous Instrument No. 54 of 2006 concerning fractures and replaces it with a new Statement of Principles concerning fracture (Balance of Probabilities) (No. 95 of 2015). This Instrument applies to eligible persons making claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) by setting out the factors that must exist for a fracture or death from fracture to be considered connected with the circumstances of their service. The scope of the Instrument includes various types of service such as eligible war service, defence service, and peacetime service, as well as various new and revised factors such as 'physical trauma','significant biomechanical abnormality', and 'osteomyelitis', among others. The Instrument facilitates the assessment and determination of social security benefits and compensation, thereby promoting the human rights of veterans and other eligible persons by ensuring accessibility to social security and the highest attainable standard of health. This Instrument is compatible with human rights as it does not derogate from and promotes several human rights including the right to social security, an adequate standard of living, and the highest attainable standard of physical and mental health.

Key Provisions

The Repatriation Medical Authority (the Authority) has revoked Instrument No. 54 of 2006, determined under subsection 196B(3) of the Veterans' Entitlements Act 1986 (VEA) concerning fracture, and has issued a new Statement of Principles concerning fracture (Balance of Probabilities) (No. 95 of 2015) (section 3). This new Instrument will apply to claims under both the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA) (section 4). The new Statement of Principles outlines the factors that must exist, and which of those factors must be related to particular kinds of service, before it can be said that, on the balance of probabilities, fracture or death from fracture is connected with the circumstances of that service (section 4). This Instrument is a result of an investigation notified by the Authority in the Government Notices Gazette of 2 May 2012 concerning fracture, in accordance with section 196G of the VEA (section 5). The contents of this Instrument are similar to the revoked Instrument, but include a number of changes, such as adopting a new revised Instrument format, specifying a day of commencement, and revising or introducing new factors concerning physical trauma, significant biomechanical abnormality, osteomyelitis, osteogenesis imperfecta, and various health conditions and behaviours that may contribute to fracture (sections 5 and 6). The obligations imposed by this Instrument primarily involve ensuring that claims for medical treatment and compensation related to fracture are assessed in accordance with the specified factors outlined in the Statement of Principles (section 4). This includes obligations for claimants to provide evidence of the relevant factors and for the Repatriation Commission to assess claims based on these factors (sections 4 and 5). The Instrument also facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal (section 2). The new definitions and revised definitions included in Schedule 1 – Dictionary provide clarity and specificity for the terms used in the Instrument (section 6). There are no specific offences, penalties, or civil/criminal consequences outlined in the explanatory notes for breach of the provisions in this Instrument. However, the Authority’s determination and the application of the Statement of Principles are integral to the administration of the VEA and the MRCA, and non-compliance with the specified factors and requirements could potentially lead to disputes or challenges in the assessment and determination of claims. The authority of the Repatriation Medical Authority in determining these Instruments and the reliance of claimants and the Repatriation Commission on these determinations underscore the importance of adhering to the outlined factors and procedures (sections 2 and 4).

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