Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022)

Administered by Department of Veterans' Affairs

Legislation au F2022L00682 In force Legislative Instrument

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EXPLANATORY STATEMENT

 

Statement of Principles concerning

THORACIC OUTLET SYNDROME

(Balance of PROBABILITIES) (NO. 48 OF 2022)

 

VETERANS' ENTITLEMENTS ACT 1986

MILITARY REHABILITATION AND COMPENSATION ACT 2004

 

  1. This is the Explanatory Statement to the Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022).

Background

2.             The Repatriation Medical Authority (the Authority) has determined, under subsection 196B(3) of the Veterans' Entitlements Act 1986 (the VEA), Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022).

3.             The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that thoracic outlet syndrome and death from thoracic outlet syndrome can be related to particular kinds of service.  The Authority has therefore determined this Statement of Principles concerning thoracic outlet syndrome pursuant to subsection 196B(3) of the VEA.

Purpose and Operation

4.             The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).

5.             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, thoracic outlet syndrome or death from thoracic outlet syndrome 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.

6.             The Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans' Review Board or Administrative Appeals Tribunal cannot accept any claim for pension; or a claim for liability or compensation relating to thoracic outlet syndrome or death from thoracic outlet syndrome that was lodged on or after 1 June 1994 in the case of the VEA, or 1 July 2004 in the case of the MRCA respectively, unless this Statement of Principles upholds that claim (subsection 120B(3) of the VEA or subsection 339(3) of the MRCA).

7.             This new Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 6 July 2021 concerning thoracic outlet syndrome in accordance with section 196G of the VEA.  The investigation involved an examination of the sound medical-scientific evidence available to the Authority.

Consultation

8.             Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to thoracic outlet syndrome in the Government Notices Gazette of 6 July 2021, 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, and any person having expertise in the field.  No submissions were received for consideration by the Authority in relation to the investigation.

Human Rights

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.

Finalisation of Investigation

10.         The determining of this new Instrument finalises the investigation in relation to thoracic outlet syndrome as advertised in the Government Notices Gazette of 6 July 2021.

References

11.         A list of references relating to the above condition is available on the Authority's website at: www.rma.gov.au. Any other document referred to in this Statement of Principles is available on request to the Repatriation Medical Authority at the following address:

              

Email:    info@rma.gov.au

Post:      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. 48 of 2022

Kind of Injury, Disease or Death: Thoracic outlet syndrome

 

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(3) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).  Part XIA of the VEA requires the determination of these instruments outlining the factors connecting particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.

2. This Legislative Instrument:-

  • facilitates claimants in making, and the Repatriation Commission and the Military Rehabilitation and Compensation 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 thoracic outlet syndrome;
  • facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal; and
  • outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, thoracic outlet syndrome is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement.

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, ICESCR; 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, ICESCR 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;
  • the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
  • ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).

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 Statement of Principles concerning Thoracic Outlet Syndrome (Balance of Probabilities) (No. 48 of 2022) was enacted under the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA). This legislation was introduced to clarify and facilitate the process for veterans and service members who have been diagnosed with thoracic outlet syndrome (TOS) to seek compensation and medical treatment. The Repatriation Medical Authority, which operates under the purview of the Australian government, determined this Statement of Principles based on available sound medical-scientific evidence, asserting that it is more probable than not that TOS and death from TOS can be linked to particular kinds of service. The primary policy objective is to ensure that claims for TOS-related disabilities or death are assessed fairly and consistently, thereby promoting the human rights of affected veterans and service members, including their right to social security and health care. The enactment of this Statement of Principles aims to streamline the claims process by setting out specific factors that must be present for a claim to be considered valid under the VEA and MRCA. This legislative instrument is designed to assist the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans' Review Board, and Administrative Appeals Tribunal in their respective roles of assessing and reviewing claims. By doing so, it ensures that claimants receive timely and appropriate benefits, thereby upholding the rights of veterans and service personnel to fair and transparent processes in the adjudication of their claims. The instrument also underscores the government's commitment to human rights by promoting equitable access to social security and health care for those affected by TOS.

Scope and Application

The Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022), issued under the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004, pertains to the determination of claims by veterans and current or former Defence Force members who suffer from thoracic outlet syndrome or who have died from it. This legislative instrument outlines the specific factors that need to be present, and their relation to particular kinds of service, to establish a connection between the service and the condition on the balance of probabilities. This applies to eligible war service, defence service, and peacetime service, as defined by the Acts. The Statement of Principles is mandatory for the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans' Review Board, and Administrative Appeals Tribunal when assessing claims filed after 1 June 1994 under the VEA and after 1 July 2004 under the MRCA. The determination of this Statement of Principles concludes the investigation into thoracic outlet syndrome that was initiated on 6 July 2021, and it ensures that the instrument aligns with human rights as recognised by relevant international instruments. This legislative instrument ensures that claims are assessed based on sound medical-scientific evidence and facilitates the provision of benefits and compensation to those affected.

Key Provisions

The Statement of Principles concerning thoracic outlet syndrome (Balance of Probabilities) (No. 48 of 2022), as determined under subsection 196B(3) of the Veterans' Entitlements Act 1986 (VEA) and the Military Rehabilitation and Compensation Act 2004 (MRCA), outlines the specific conditions under which thoracic outlet syndrome (TOS) and death from TOS can be considered related to certain types of service (section 5). These conditions must be established to support a claim for pension or compensation under either the VEA or the MRCA. The Statement of Principles applies to eligible war service, defence service (excluding hazardous and British nuclear test defence service), and peacetime service, as defined by the respective acts (section 5). For claims to be considered valid, they must be lodged after the specified dates: 1 June 1994 for the VEA and 1 July 2004 for the MRCA (section 6). Under this legislative instrument, the Repatriation Commission, Military Rehabilitation and Compensation Commission, Veterans' Review Board, and Administrative Appeals Tribunal are mandated to uphold the Statement of Principles when assessing claims related to thoracic outlet syndrome (section 6). They cannot accept any claim unless the Statement of Principles supports it, thereby ensuring that all claims are assessed consistently with the latest medical-scientific evidence. This approach facilitates a more accurate and reliable evaluation of claims, providing clarity and direction for claimants and decision-makers alike. The Statement of Principles imposes several obligations on claimants and relevant authorities. Claimants must provide sufficient evidence that their TOS or death from TOS meets the criteria outlined in the Statement of Principles (section 5). Authorities, in turn, are required to rigorously assess this evidence against the established criteria, ensuring that claims are evaluated fairly and transparently. Additionally, the Repatriation Medical Authority must continue to review and update the Statement of Principles as new medical-scientific evidence becomes available, maintaining its relevance and accuracy (section 7). In terms of penalties and consequences, there are no direct criminal penalties outlined in the Statement of Principles itself. However, any breach of the provisions related to the submission of false or misleading information in claims could result in civil or administrative penalties under the respective acts. For instance, providing false information in a claim could lead to the denial of benefits or even legal action for misrepresentation. The precise nature and severity of penalties would depend on the specific circumstances and the relevant sections of the VEA or MRCA. The Statement of Principles, by establishing clear criteria, aims to prevent such breaches and ensure that all claims are legitimate and supported by sound evidence.

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