EXPLANATORY STATEMENT

Veterans' Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016 (Instrument 2016 No.R34)

EMPOWERING PROVISION

Subsection 88A(2) and paragraphs (a) and (d) of subsection 88A(1) of the Veterans’ Entitlements Act 1986 (VEA).

PURPOSE

The attached instrument (Instrument 2016 No.R34) is part of a package of instruments that implements the Government’s 2016-17 Budget measure to expand access to Non-Liability Health Care (NLHC) for mental health treatment. 

The 2016–17 Budget provided $37.9 million for an initiative to extend NLHC for treatment for certain mental health conditions to all past and current permanent members of the Australian Defence Force (ADF) irrespective of how long or when they served, or the type of service.  

This proposal gives effect to a recommendation of the Senate Committee of Inquiry into Abuse (Senate Foreign Affairs, Defence and Trade Committee – in its final report of October 2014 – Processes to support victims of abuse in Defence) that the three year minimum service requirement for eligibility for NLHC be removed and eligibility for NLHC be otherwise expanded.  This initiative will enable many victims of abuse in the ADF to access NLHC for the specified range of mental health conditions.

Treatment will be available for a specified range of mental health conditions, namely alcohol use disorder, substance use disorder, anxiety disorder, depressive disorder and post-traumatic stress disorder.

The treatment is known as “Non-Liability Health Care” because it need not be linked to a condition arising from the service of the eligible person. NLHC enables eligible persons to access treatment at the expense of the Department of Veterans’ Affairs (DVA) for the specified conditions without needing to establish a link to service. Further, it is completely separate from any claim for compensation.

The 2016 /17 Budget proposal to expand access to NLHC for mental health conditions is implemented by the attached instrument together with the following instruments:

• Veterans’ Entitlements (Treatment Principles – Extension of Non-Liability Health Care for Mental Health Treatment) Amendment Instrument 2016

• Veterans' Entitlements (Electronic Lodgement Approval) Instrument 2016 (a non-legislative instrument made by the Repatriation Commission).

The attached instrument, made under section 88A of the VEA, specifies as a class of persons who are eligible for treatment on a Non-Liability Health Care basis, a person who is, or has been, a member of the ADF with continuous full-time service who has made a request to DVA for treatment for a specified mental health condition.  Further, the instrument specifies the kind of treatment that such a person may receive at the expense of the DVA.

Previously, only certain classes of members, broadly described as “veterans” and “Peacetime Personnel” were covered for NLHC treatment for these mental health conditions.  This instrument extends eligibility to all current and former members of the ADF rendering continuous full-time service. It will cover groups not previously covered, including those with peacetime-only service prior to December 1972 and those with less than three years of peacetime-only service since this time.

In addition, the instrument simplifies the claims process by allowing requests for treatment to be made to the Department via phone call or email. Further, it removes the requirement for a client to obtain an upfront diagnosis for the mental health condition before DVA will give the go-ahead for funding for the treatment. This will have the effect of allowing a client to receive treatment, including being assessed and diagnosed, at DVA’s expense for a six month period before needing to provide a formal diagnosis to DVA.

The instrument continues to streamline the legislative framework governing NLHC mental health treatment by revoking the following instruments and replacing them with the one determination that will, from 1 July 2016, establish eligibility for DVA-funded treatment for the expanded new category of members.

(a)   Veterans' Affairs (Peacetime Service Eligibility for Non-Liability Health Care) Instrument 2014 (Instrument 2014 No. R18); and

(b)   Veterans' Entitlements Treatment (Anxiety and Depressive Disorders) Determination (Instrument 2015 No. R13).

Finally, the instrument enables newly eligible members to have their treatment costs backdated to 3 months before the date on which their request for treatment is received (but no earlier than 1 July 2016).  The instrument preserves the full 3 months backdating for members eligible under one of the former instruments (including backdating to a date that is earlier than 1 July 2016).

CONSULTATION

The key element of the attached instrument is the expansion of eligibility for NLHC mental health treatment to any person who has served any amount of continuous full-time service in the ADF.  

Before implementing the proposal, DVA consulted widely with organisations that represent the veteran community (including organisations that represent younger and contemporary veterans) and organisations that support victims of abuse in the Defence Force. 

Organisations consulted directly include:

• Ex-Service Organisation Round Table (ESORT)
• Younger Veterans Contemporary Needs Forum (YVCNF)
• Returned Soldiers League (RSL)
• William Kibby VC Veterans Shed Inc (WKVCVS)
• Victims of Abuse in the Australian Defence Force Association Inc.

ESORT is a consultative forum that includes representatives from the Australian Peacekeepers and Peacemakers Veterans Association (APPVA), the Australian Special Air Service Association (ASASA), the Defence Force Welfare Association (DFWA), Defence Families Australia (DFA), Legacy Australia Inc., the Naval Association of Australia, the Partners of Veterans Association, the Royal Australian Air Force Association (RAAFA), the Royal Australian Regiment Association (RARA), the RSL, the TPI Federation Australia, the Vietnam Veterans Association of Australia, and the Vietnam Veterans Federation of Australia.

A number of these bodies are also represented on the Younger Veterans Contemporary Needs Forum including APPVA, ASASA, DFWA, DFA, and Legacy Australia Inc.  This forum also encompasses contemporary veterans organisations and support groups including Mates4Mates, Soldier On, the Department of Defence Support for Wounded Injured or Ill Program, and the Warrior’s Return.

The method of consultation for this proposal included presentations and face to face sessions followed by a call for written submissions from the organisations.

The result of consultation was widespread approval of the measure. The RSL and the WKVCVS both pointed to the need for DVA to expand eligibility for NLHC mental health treatment to those with less than the three year minimum service requirement.

The proposals to remove the requirements for up-front diagnosis and lodgement of a formal claim are beneficial in nature and all interested parties could reasonably be expected to support them.  External consultation for these aspects of the NLHC Budget proposal was considered – in accordance with the requirement in section 17 of the Legislation Act 2003 – but was not undertaken on the basis that it was not considered necessary.

RETROSPECTIVITY

If the attached instrument commenced before registration, subsection 12(2) of the Legislation Act 2003 (legislative instrument of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person) would not be contravened because the instrument does not disadvantage any person or impose a liability on any person (except the Commonwealth).

DOCUMENTS INCORPORATED-BY-REFERENCE

Section 10 of the determination refers to the Veterans’ Entitlements (Electronic Lodgement Approval) Instrument 2016.  This instrument is non-legislative in nature and is made under subsection 5T(3) of the VEA.

The instrument referred to is the instrument in the form in which it exists on 1 July 2016.

A copy of this instrument is available for inspection at Level 4, Gnabra Building, Corner Bunda and Genge Streets, Civic, Canberra and is also available on the DVA website at http://clik.dva.gov.au/legislation-library.

REGULATORY IMPACT 

Nil.

HUMAN RIGHTS STATEMENT

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

The attached legislative instrument engages the Right to Health 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

The attached instrument ensures the mental health needs of entitled persons are met through further streamlining of access and expansion of eligibility for NLHC mental health treatment. The policy recognises that current and former serving personnel may develop certain mental health conditions and that the earlier an individual seeks treatment, the more effective the likely health and other outcomes will be.

Under these changes, it is estimated that around 67,000 additional current and former permanent members of the ADF will become eligible to receive NLHC treatment for mental health conditions, should they have need of it. This includes many victims of abuse in the ADF who have previously been excluded from NLHC coverage due to the period in which they served or the length of their service.

It will have the effect of removing administrative and financial barriers to accessing mental health care for past and present ADF members and will allow them to seek treatment as quickly as possible. Accessing treatment at an early stage is an important part of achieving good long term outcomes and increases the likelihood of an individual returning to a healthy and productive life.

Conclusion

The attached instrument expands and simplifies access to DVA-funded treatment for certain mental health conditions on a non-liability health care basis.  It promotes the Right to Health by implementing an expanded regime of DVA-funded care and support for mental health treatment for all current and former members of Australia’s Defence Force.  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 that the name of the instrument is the Veterans' Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016.

Section 2

This section provides that the instrument commences, or is taken to have commenced on 1 July 2016.

Section 3

This section revokes:

(c)   Veterans' Affairs (Peacetime Service Eligibility for Non-Liability Health Care) Instrument 2014 (Instrument 2014 No. R18); and

(d)   Veterans' Entitlements Treatment (Anxiety and Depressive Disorders) Determination (Instrument 2015 No. R13).

The authority for the revocation is subsection 88A(2) of the Veterans’ Entitlements Act 1986.

These earlier instruments provided access to non-liability health care treatment for mental health conditions for certain, more limited categories of members, broadly classed as “veterans” and “Peacetime Service Personnel”. These classes of members will now be covered by the attached instrument.

Section 4

Section 4 is a purpose provision. It outlines the policy intent behind the instrument, namely, to ensure that those seeking treatment for one of the five specified mental health conditions covered by the attached instrument, receive that treatment as soon as practicable after a request has been made and accepted and regardless of whether the condition is a war-caused or service-related injury or disease.

Section 5

This is a transitional provision. It provides for any claims made under a former instrument (that is, an instrument that is revoked by section 3) that are unresolved at the commencement of this instrument, to be determined under the attached instrument as if the request had been made under the attached instrument.

The section is designed to ensure that a person eligible under one of the former instruments who has lodged a claim that has not been determined before the commencement date, will have the benefit of these more beneficial provisions – i.e. – removal of the upfront diagnosis requirement.

Section 6

This is the interpretation section. It defines terms that are used in the instrument.

Section 7

This section sets out the meaning of the term “specified mental health condition” for the purposes of the instrument. The term is defined in section 7 to mean one or more of the following conditions:

(a)   alcohol use disorder;

(b)   anxiety disorder;

(c)   depressive disorder;

(d)   post-traumatic stress disorder; or

(e)   substance use disorder.

Section 8

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 under this Part.”

Using this power, section 8 specifies, as a particular class, “veterans” (within the meaning of section 80 and 81 of the VEA) who make a request to the Department to be provided with treatment for a specified mental health condition.

“Veterans” are currently covered for NLHC treatment for the mental health conditions of alcohol use disorder, post-traumatic stress disorder and substance use disorder under section 85(2) of the VEA.  NLHC treatment for veterans was extended to cover the mental health conditions of anxiety disorder and depressive disorder by the revoked instrument - Veterans' Entitlements Treatment (Anxiety and Depressive Disorders) Determination. 

This instrument will help streamline the NLHC framework by providing the one consistent legislative gateway for access by veterans to treatment for all specified mental health conditions including anxiety disorder and depressive disorder.

Section 9

Paragraph 88A(1)(d) of the Act 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 under this Part.”

Using this power, section 9 specifies, as a particular class, a person (other than a person who is covered by paragraphs (a), (b) or (c) of section 88A of the Act) who is, or has been, a member of the Defence Force rendering continuous full-time service (CTFS) and who makes a request to the Department to be provided with treatment for a specified mental health condition.

This class is very broadly defined and, in accordance with the Minister’s Budget speech is intended to cover all current and former permanent members of the ADF, irrespective of how long or when they served, or the type of service.

The addition of the words “rendering continuous full-time service” is intended to ensure that permanent members, even if they have rendered one day of service, will be included.  This excludes the majority of army reservists other than those who are called up to serve in the permanent forces as a full-time ADF member for a period of time on “CFTS”.  This might, for example, occur in the case of deployments when additional personnel are needed to support the regular forces for a particular operation.

Section 10

This section covers the ways in which a request for treatment under Part 2 of the instrument may be made.

Subsection (1) provides that a request for treatment under this Part may be made in writing, in person or by phone call.

Subsection (2) provides that a request that is made in writing may be lodged electronically in a manner, and to an electronic address, that is approved for the electronic transmission of applications under subsection 85(2) of the VEA by the Veterans’ Entitlements (Electronic Lodgement Approval) Instrument 2016, as in force on 1 July 2016.

The Veterans’ Entitlements (Electronic Lodgement Approval) Instrument 2016 is a non-legislative instrument made for the purposes of section 5T of the VEA.  

The note to section 10 sets out the methods that are approved by the Veterans’ Entitlements (Electronic Lodgement Approval) Instrument 2016 for the electronic lodgement of claims under subsection 85(2) of the VEA. The approved methods are  via fax, internet, and email. The approved email address is:  nlhc@dva.gov.au.  The approved fax numbers and URL for online applications are also found in that instrument.

This subsection will create consistency in the way in which claims for NLHC treatment may be made to the Department under subsection 85(2) of the VEA and under this instrument.

Subsection (3) outlines the day on which a request, transmitted electronically, is taken to be received. The subsection provides that it is taken to be received at an office of the Department in Australia on the day on which it is received at the approved electronic address.  This is in line with the provisions of the VEA governing the time of receipt of claims, requests and applications under the VEA that are approved for electronic lodgement.  See subsection 5T(3) of the VEA.

Section 11

Section 11 deals with backdating of treatment. It provides for backdating of treatment to the date that is 3 months before the day on which the request to be provided with that treatment is received at an office of the Department in Australian, but no earlier than 1 July 2016.

Subsection (2) preserves the full 3 months backdating for members eligible under one of the former instruments (an instrument revoked under section 3) including backdating to a date that is earlier than 1 July 2016.

Section 12

Section 12 specifies, for the purpose of section 88A(1), the particular treatment that is available to persons in the classes specified in Part 2 of the instrument. The section specifies the following kind of treatment:

Treatment that can be applied to an alcohol use disorder, substance use disorder, anxiety disorder, depressive disorder or post-traumatic stress disorder as the case may be, under, and subject to:

(a)   the Treatment Principles; or

(b)   the Repatriation Pharmaceutical Benefits Scheme; or

(c)   the Repatriation Private Patient Principles; or

(d)   an arrangement between the Repatriation Commission and a health care provider pursuant to Part V of the Act.

The Budget measures package includes the Veterans’ Entitlements (Treatment Principles – Extension of Non-Liability Health Care for Mental Health Treatment) Amendment Instrument 2016 which varies the Treatment Principles to establish the Repatriation Commission’s obligations in relation to the acceptance of financial responsibility for the costs of mental health treatment for those within a class specified by the attached instrument.