Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020

Administered by Department of Veterans' Affairs

Legislation au F2020L01109 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020 (Instrument 2020 No. R28)

 

EMPOWERING PROVISION

Subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).

PURPOSE

The attached instrument (Instrument 2020 No. R28) amends the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017 (the determination) to extend the intake period of the Provisional Access to Medical Treatment Trial (the Trial) by twelve months to 1 July 2021 and the closing date of the provision of treatment under the Trial by twelve months to 31 December 2021.

The 2017–2018 Budget provided the original funding for an initiative to provide provisional access to medical treatment for a “top 20” list of specified conditions. Following previous extensions an additional $5.8 million in funding has been provided under the July 2020 “Special Budget’ to extend the Trial into the 2021-22 financial year.

The Trial consists of two stages.  Firstly, the registration (intake) stage where clients register to access medical treatment. Secondly, the access to treatment stage where the Department of Veterans’ Affairs (DVA) pays for treatment that has been provided to a person who has registered for the Trial.  

The current extension of the trial was scheduled to cease 31 December 2020, with an evaluation to be provided to the Government for their consideration in the Budget context. The intake period of the Trial is being extended by a further twelve months to 1 July 2021.

Flowing from this, the provision of treatment has also been extended by twelve months to 31 December 2021, which reflects changing processing times and capacity amid unprecedented increases in claims intakes as well as workforce capacity within the COVID-19 pandemic environment. The purpose of this extension is to allow participants to continue to receive treatment while their claim is being determined.

The extension will also provide a longer period for data collection, analysis and client feedback to produce a comprehensive evaluation of the Trial. The evaluation will help inform decisions in relation to the ongoing viability of the Trial past 30 June 2021.

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.

Consultation has occurred within DVA concerning the extension of the Trial. The proposed extension continues access to the Trial and is consistent with how DVA has provided treatment under the Trial since it commenced on 1 July 2017. Consequently, the additional consultation that occurred during the development of the original beneficial legislative instrument is considered as still relevant for the purposes of the extension.

The measure implemented by this instrument is entirely beneficial in nature in terms of its impact on Australian Defence Force members and former members.

In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.

RETROSPECTIVITY

The determination will be taken to have commenced on 1 July 2020 in line with the provision of additional funding for the Trial and will operate from that date.

The retrospective commencement is designed to support clients who have been provided with treatment for claims made on or after that date.  Treatment provided to clients who had made a claim prior to 1 July 2020 will be covered by the current instrument.

The retrospective operation of the instrument will not infringe section 12 of the Legislation Act 2003 because the retrospective operation would not disadvantage any person or impose a liability on a person other than the Commonwealth.

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. 

The attached legislative instrument engages and promotes the Right to Health.

Human rights implications

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

The instrument varies the determination to extend the intake period of the Trial by a further twelve months to 1 July 2021 and the provision of treatment by twelve months to 31 December 2021. This will allow new clients to register for treatment under the Trial during the extension period, and extend the treatment period for those people as well as existing clients.

Conclusion

The attached instrument promotes the Right to Health by extending the intake period and the provision of treatment under the Trial. DVA clients will benefit from the extension as they will be able to access medical treatment by participating in the Trial. The attached instrument also confirms treatment is to continue under the Trial while an appeal or review is being undertaken.  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 (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020.

Section 2

This section provides that the instrument commences on 1 July 2020.

Section 3

This section sets out the primary legislation that authorises the making of the instrument, namely subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).

Section 4

This section provides that the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017 is varied in accordance with the items in the Schedule to this instrument.

Schedule

Variations to the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017

Item 1

This item omits from section 4 the reference to “1 July 2020” and substitutes a reference to “1 July 2021”.

Item 2

This item omits from paragraph 7(1)(a) the reference to “1 July 2020” and substitutes a reference to “1 July 2021”.

Item 3

This item omits from subparagraph 7(1)(d)(ii) the reference to “1 July 2020” and substitutes a reference to “1 July 2021”.

Item 4

This item omits from paragraph 8(a) the reference to “1 July 2020” and substitutes a reference to “1 July 2021”.

Item 5

This item omits paragraph 9(1)(c) the reference to “31 December 2020” and substitutes a reference to “31 December 2021”.

Overview

The Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020 extends the intake period and the provision of treatment under the Provisional Access to Medical Treatment Trial, which was established under the Veterans' Entitlements Act 1986. The amendment was enacted to address the gap in medical treatment access for veterans and their families, particularly in the context of the COVID-19 pandemic and increased claims intakes. The instrument was made by the Repatriation Commission, as the rule-maker under subsection 88A(2) of the Veterans’ Entitlements Act 1986. The policy objective of this amendment is to promote the Right to Health by extending the intake period and the provision of treatment under the Trial, ensuring that Department of Veterans’ Affairs clients can continue to access medical treatment while their claims are being determined. This extension also allows for more comprehensive data collection, analysis, and client feedback to inform decisions regarding the Trial's ongoing viability.

Scope and Application

The Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020 amends the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017, extending both the intake period and the provision of treatment under the Provisional Access to Medical Treatment Trial. This amendment applies to Australian Defence Force members and former members seeking provisional access to medical treatment for specified conditions, enabling them to register and receive treatment until 1 July 2021 and 31 December 2021, respectively. The extension is designed to accommodate the increased demand for claims processing and treatment during the COVID-19 pandemic, while also allowing for comprehensive data collection and evaluation of the trial's effectiveness. The amendment is applicable across the Commonwealth of Australia, aligning with the jurisdiction of the Veterans’ Entitlements Act 1986, and does not include any specific exclusions or exemptions. The retrospective commencement of the amendment on 1 July 2020 ensures that treatment provided after this date is covered by the extended trial period.

Key Provisions

The main operative sections of the Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020 (Instrument 2020 No. R28) are sections 1 to 5, which detail the name, commencement date, empowering provision, and the variation of the 2017 Determination. Section 1 states that the instrument is the Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No. 2 2020. Section 2 sets the commencement date as 1 July 2020. Section 3 specifies the empowering provision as subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA). Section 4 describes how the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017 is amended according to the items in the Schedule. The Schedule contains specific variations, such as extending the intake period and the provision of treatment to 1 July 2021 and 31 December 2021, respectively. The obligations and requirements imposed by the Act on the parties or entities it governs include ensuring that the Department of Veterans' Affairs (DVA) continues to provide provisional access to medical treatment for specified conditions under the Trial. This involves registering clients during the extended intake period, providing treatment, and facilitating data collection and analysis to inform a comprehensive evaluation of the Trial. The Act also requires the DVA to comply with the human rights considerations, particularly the Right to Health, by extending the provision of treatment while claims are being determined or appealed. The Act includes provisions for offences, penalties, and civil or criminal consequences for breaches. Although the determination itself does not specify penalties, any breaches of the broader Veterans' Entitlements Act 1986 (VEA) or related regulations could result in penalties. For example, offences under the VEA may incur penalties such as fines, imprisonment, or both, depending on the severity of the breach and the specific provisions of the VEA or related legislation. However, the primary focus of this amendment is to extend the Trial and facilitate continued access to medical treatment without introducing new penalties or consequences specifically tied to this amendment.

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