Veterans’ Entitlements (Anti-Malarial Medications Health Assessment) Determination 2019

EXPLANATORY STATEMENT

Veterans’ Entitlements (Anti-Malarial Medications Health Assessment) Determination 2019

(Instrument 2019 No. R36)

EMPOWERING PROVISIONS

Paragraphs 88A(1)(a) and (d) of the Veterans’ Entitlements Act 1986 (VEA).

PURPOSE

The attached instrument (Instrument 2019 No. R36) implements the Government’s 2019-20 Budget measure to provide assistance to people who were prescribed the anti-malarial medications, mefloquine or tafenoquine, during their service with the ADF. To be eligible, a person needs to have had at least one day of continuous full time service on or after 1 January 1989. The Government is committing $2.1 million to this measure which will deliver a national program of comprehensive health assessments for eligible persons.

This Budget initiative responds to the Foreign Affairs, Defence and Trade References Committee’s Report, The use of the Quinoline anti-malarial drugs Mefloquine and Tafenoquine in the Australian Defence Force. The Committee’s Report and Government Response can be accessed at the Australian Parliament House website:

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Mefloquine.

As acknowledged in the Committee’s report, many of the individuals who have taken these medications are unwell and have complex health needs. The health assessments will provide eligible persons with an opportunity to discuss their concerns with a general practitioner with an understanding of health issues related to mefloquine or tafenoquine, the complex conditions with which some eligible persons may present and the ADF experience. This will allow for identification of service related illness, disease and injury. Where appropriate, the eligible person will be referred for further specialist assessment, treatment and support, including potential referral to the Open Arms – Veterans and Families Counselling Neurocognitive Health Pilot.

The attached instrument is made under section 88A of the VEA. The instrument specifies the class of person who is eligible for specified treatment under Part V of the VEA. To be eligible, a person must:

• have rendered at least one day of continuous full-time service since 1 January 1989 (the year which mefloquine was first prescribed to members of the ADF) ; and
• have taken mefloquine or tafenoquine during their service or believe on reasonable grounds that they have taken mefloquine or tafenoquine during their service.

This is the case whether or not the person has ceased to be a member of the ADF.

The specified treatment consists of one comprehensive health assessment by an authorised general practitioner. An authorised general practitioner is a general practitioner engaged by an organisation that has entered into a contract with the Commonwealth or the Repatriation Commission, or both, to provide health assessments for the purposes of this instrument. Only an authorised general practitioner can provide a health assessment under this instrument. The term ‘general practitioner’ has its ordinary meaning. A general practitioner refers to someone who is trained in a wide range of medicine and medical procedures, but excludes medical specialists who have undergone speciality training in a specific field of medicine after completing the same training as a general practitioner.

An external service provider will be contracted to deliver the national program of health assessments. An eligible person seeking to access a health assessment will only need to contact the contracted service provider to schedule the assessment (rather than needing to contact or seek approval from DVA first). The service provider will be required to ensure the eligible person meets eligibility criteria. Access to these health checks is in addition to any existing entitlements eligible persons have to health assessments.

This instrument commences on the day after it is registered on the Federal Register of Legislation.

CONSULTATION

Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.

External consultation has been undertaken with the Department of Defence. DVA hosted Mefloquine and Tafenoquine Consultation Forums across Australia in late 2018. Consultation within DVA has been undertaken with the Wellbeing Policy Branch.

Further consultation was not considered necessary as the proposal is beneficial in nature in terms of its impact on clients and does not have regulatory impacts on businesses, community organisations or individuals. In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.

RETROSPECTIVITY

None.

DOCUMENTS INCORPORATED BY REFERENCE

None.

REGULATORY IMPACT

Nil.

HUMAN RIGHTS STATEMENT

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 

Human rights implications

The attached legislative instrument engages and promotes the Right to Health. The Right to Health is contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights. The Right to Health is the right to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

Overview

There has been ongoing public concern in sections of the ADF community about the use of the anti-malarial medications mefloquine and tafenoquine in the ADF, in particular relating to the anti-malarial trials conducted by the ADF. Although there is limited medical scientific evidence underpinning the causal effect of taking mefloquine and tafenoquine, the Government acknowledges that there is a cohort of eligible persons in need of additional assistance and seeks to provide them with appropriate treatment and support.

The measure will allow any eligible person who has concerns about having taken the anti-malarial medications, mefloquine or tafenoquine, during service to access a comprehensive health check by an authorised general practitioner. 

Conclusion

The attached instrument promotes the Right to Health by enabling eligible persons to access treatment by way of a comprehensive health assessment by an authorised general practitioner. 

Accordingly, the attached instrument is considered to be “human rights compatible”

Repatriation Commission

Rule-Maker

FURTHER EXPLANATION OF PROVISIONS

See: Attachment A

Attachment A

FURTHER EXPLANATION OF PROVISIONS 

Section 1

This section provides the name of the instrument is the Veterans’ Entitlements (Anti-Malarial Medications Health Assessment) Determination 2019.

Section 2

This section provides the instrument is to commence on the day after it is registered on the Federal Register of Legislation.

Section 3

This section sets out the primary legislation that authorises the making of the instrument, namely paragraphs 88A(1)(a) and (d) of the VEA.

Section 4

This section is a purpose provision. The purpose of this instrument is to enable persons within a class specified in section 6 to receive treatment consisting of one health assessment by an authorised general practitioner.

The note to this section informs the reader that a person’s health assessment by an authorised general practitioner is in addition to any other health assessment available to the person as a client of the Department of Veterans’ Affairs.

Section 5

This is the interpretation section.

The term ‘Australian Defence Force’ has the same meaning as in the Defence Act 1903.

The term ‘authorised general practitioner’ is defined as a general practitioner engaged by an organisation that has entered into a contract with the Commonwealth or the Repatriation Commission, or both, to provide health assessments for the purposes of this instrument.

The note to section 5 provides that ‘continuous full-time service’ is defined in subsection 5C(1) of the VEA.

Section 6

Paragraph 88A(1)(a) of the VEA empowers the Repatriation Commission to make a written determination stating “that a veteran included in a specified class is eligible to be provided with treatment of a specified kind”.

Paragraph 88A(1)(d) of the VEA empowers the Repatriation Commission to make a written determination stating “that a person who is not covered by paragraph (a), (b) or (c) and who is in a specified class is eligible to be provided with treatment of a specified kind”.

Using these powers, section 6 specifies the class of person who will be eligible for the treatment specified in section 7 of the instrument.

The class of person specified in section 6 is a person who:

• has taken, or reasonably believes that he or she has taken, mefloquine or tafenoquine as part of his or her service in the Australian Defence Force; and
• has rendered at least one day of continuous full-time service on or after 1 January 1989;

whether or not they have ceased to be a member of the Australian Defence Force.

The Note to section 6 provides that mefloquine and tafenoquine are prescribed anti-malarial medications.

Section 7

Section 7 sets out the kind of treatment under Part V of the VEA that a person who is in the specified class in section 6 is eligible to be provided with. The treatment is one health assessment by an authorised general practitioner. Only an authorised general practitioner can provide a health assessment under this instrument.

The note to section 7 confirms that the Treatment Principles under section 90 of the VEA, the Repatriation Private Patient Principles under section 90A of the VEA and the Repatriation Pharmaceutical Benefits Scheme under section 91 of the VEA apply to any treatment provided, if they are relevant to the treatment.

Section 8

This section provides that the instrument is repealed on 30 June 2023.