REPATRIATION MEDICAL AUTHORITY

INSTRUMENT NO. 106 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. 93 of 2007, determined under subsection 196B(2) 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(2) of the VEA a Statement of Principles concerning ingrowing nail (Reasonable Hypothesis) (No. 106 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 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 ingrowing nail or death from ingrowing nail, 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 factor in subsection 9(8)(f) concerning 'diabetes mellitus or atherosclerotic peripheral vascular disease', for ingrowing toenail only and for clinical worsening 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. 106 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 as a minimum exist, before it can be said that a reasonable hypothesis has been raised, connecting ingrowing nail with the circumstances of eligible service rendered by a person, as set out in clause 4 of the Explanatory Notes;
• replaces Instrument No. 93 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.