Statement of Principles concerning ingrowing nail (Balance of Probabilities) (No. 107 of 2015)

Administered by Department of Veterans' Affairs

Legislation au F2015L01327 Not in force Legislative Instrument

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REPATRIATION MEDICAL AUTHORITY

 

INSTRUMENT NO. 107 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. 94 of 2007, determined under subsection 196B(3) of the VEA concerning ingrowing nail.
  2. The Authority is of the view that there is sound medical-scientific evidence that indicates that ingrowing nail and death from ingrowing nail 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 ingrowing nail (Balance of Probabilities) (No. 107 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, ingrowing nail or death from ingrowing nail 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 31 October 2012 concerning ingrowing nail 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 definition of 'ingrowing nail' in subsection 7(2);
  • revising the factor in subsection 9(1) concerning 'an acquired deformity of the affected digit, affected nail or the affected nail bed';
  • revising factors in subsections 9(2) & 9(6) concerning 'an injury to the affected nail or the affected nail bed';
  • revising factors in subsections 9(3) & 9(7) concerning 'an epidermal growth factor receptor inhibitor or antiviral treatment with indinavir';
  • revising factors in subsections 9(4)(a) & 9(8)(a) concerning 'poor nail care', for ingrowing toenail only;
  • revising the factor in subsection 9(8)(b) concerning 'poor foot hygiene', for ingrowing toenail only and for clinical worsening only;
  • new factors in subsections 9(4)(c) & 9(8)(d) concerning 'hyperhydrosis', for ingrowing toenail only;
  • new factors in subsections 9(4)(d) & 9(8)(e) concerning 'an inability to keep the skin of the feet dry', for ingrowing toenail only;
  • new factors in subsections 9(5) & 9(9) concerning 'fungal infection involving the affected nail';
  • new definitions of 'deformity of the affected digit, affected nail or the affected nail bed', 'MRCA', 'poor nail care of the affected toenail' and 'VEA' in Schedule 1 - Dictionary;
  • revising the definitions of 'ill-fitting footwear', 'poor foot hygiene' and 'relevant service' in Schedule 1 - Dictionary; and
  • deleting the definitions of 'a deformity of the affected digit or the affected nail bed' and 'poor nail care'.

Consultation

7.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to ingrowing nail 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 ingrowing nail 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. 107 of 2015

Kind of Injury, Disease or Death: Ingrowing nail

 

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 ingrowing nail;
  • 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, ingrowing nail 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. 94 of 2007; and
  • reflects developments in the available sound medical-scientific evidence concerning ingrowing nail 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. 107 of 2015 was enacted to address the problem of ingrowing nail in veterans and Defence Force members, providing clearer guidelines for claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. This instrument, developed by the Repatriation Medical Authority, revokes the previous Instrument No. 94 of 2007 and incorporates updated medical-scientific evidence to improve the quality of outcomes for claimants. The policy objective of this instrument is to facilitate the assessment and determination of social security benefits for eligible persons who have ingrowing nail, ensuring that the qualifying conditions for benefits are reasonable, proportionate, and transparent. The instrument also promotes the human rights of veterans and Defence Force members, including their rights to social security, an adequate standard of living, and the enjoyment of the highest attainable standard of physical and mental health.

Scope and Application

This legislative instrument applies to individuals who have rendered eligible service and are making or have made claims under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It specifically addresses the circumstances under which ingrowing nail and death from ingrowing nail can be related to particular kinds of service, thus affecting the eligibility of claims for medical treatment and compensation. The instrument is designed to guide the Repatriation Commission in assessing such claims, the Veterans' Review Board and the Administrative Appeals Tribunal in reviewing these assessments, and ultimately to benefit the claimants themselves. The instrument is applicable across Australia, as it pertains to federal acts, thus it has a national reach. There are no stated exclusions, exemptions, or thresholds in the instrument itself, but the specific circumstances under which claims are assessed are outlined within the instrument. The application of the instrument can be extended or restricted through subordinate instruments, which may provide further clarification or adjustments based on new evidence or changes in policy.

Key Provisions

The Repatriation Medical Authority (the Authority) has revoked Instrument No. 94 of 2007 and issued a new Statement of Principles concerning ingrowing nail, under subsection 196B(8) of the Veterans' Entitlements Act 1986 (VEA). This new Statement of Principles, No. 107 of 2015, is designed to replace the old one and is determined pursuant to subsection 196B(3) of the VEA, indicating a link between ingrowing nail, death from ingrowing nail, and certain types of service. This Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (MRCA), setting out the factors that must exist for ingrowing nail or death from ingrowing nail to be connected with service (section 4). The Authority has undertaken an investigation into ingrowing nail, as notified in the Government Notices Gazette of 31 October 2012, in accordance with section 196G of the VEA. This investigation involved examining the latest sound medical-scientific evidence. The new Instrument differs from the revoked one in several ways, including adopting the latest revised format, specifying a day of commencement, and revising various definitions and factors related to ingrowing nail (section 6). Obligations and requirements imposed by this Act include facilitating claims and assessments under the VEA and MRCA by specifying circumstances for medical treatment and compensation for ingrowing nail. It also outlines the factors that must exist for ingrowing nail to be connected with service and replaces the previous Instrument with updated evidence. The Authority must ensure that the qualifying conditions for benefits are reasonable, proportionate, and transparent, which aligns with the right to social security and an adequate standard of living (section 2). Breach of this legislation can lead to various civil and criminal consequences. While specific penalties are not detailed in the provided text, the general implication is that failure to comply with the new Statement of Principles could result in the denial of claims or the incorrect assessment of benefits under the VEA and MRCA. The Instrument promotes human rights by facilitating the assessment and determination of social security benefits, ensuring these benefits are accessible and fair for eligible veterans and Defence Force members (section 4).

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Veterans' Law
Instrument
Regulation
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Statement of Principles
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