EXPLANATORY STATEMENT

Veterans’ Entitlements (Treatment Principles – Extension of Non-Liability Health Care for Mental Health Treatment) Amendment Instrument 2016 (Instrument 2016 No. R36)

EMPOWERING PROVISION

Subsection 90(4) of the Veterans’ Entitlements Act 1986 (the VEA).

PURPOSE

The attached instrument (Instrument 2016 No.R36) 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 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 will be implemented by the attached instrument together with the following instruments:

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

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

Collectively, these instruments will give effect to the following measures:

• extend eligibility to NLHC treatment for specified mental health conditions to cover all current and former members including those with less than three years of peacetime continuous full-time service and those with peacetime service prior to 7 December 1972; and
• allow access to NLHC mental health treatment without needing to obtain a formal diagnosis prior to seeking treatment; and
• enable approval for NLHC mental health treatment to be requested by phone or email without the need for a prescribed formal application to be lodged; and
• enable eligible persons to be reimbursed for costs of treatment incurred up to three months prior to the date of making the request (but no earlier than 1 July 2016 for those members within the expanded class who were not previously eligible).

The attached instrument varies the legislative instrument known as the Treatment Principles.  The Treatment Principles set out the circumstances in which treatment may be provided to clients of the Department. The variations to the Treatment Principles made by the attached instrument will accommodate the expansion of access to mental health treatment implemented by the Veterans' Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016 (section 88A determination).  

Specifically, the variations to the Treatment Principles made by the attached instrument will:

• amend paragraph 2.4 of the Treatment Principles to remove the references to mental health conditions. The NLHC treatment for all mental health conditions for veterans, and others within the expanded class specified in the section 88A determination, will be dealt with in discrete new provisions in paragraph 2.5A;
• add new provisions (in paragraph 2.5A) to establish the Repatriation Commission’s obligations in relation to the acceptance of financial responsibility, on a NLHC basis, for the costs of treatment for the specified mental health conditions for those within the expanded class specified in the section 88A determination;
• make a minor corrective amendment to the heading in paragraph 2.5 and a consequential amendment to the note to that paragraph.

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.

The key element of the Budget proposal 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 NLHC Budget 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.  Accordingly, external consultation for these aspects of the NLHC Budget proposal was not undertaken on the basis that it was not considered necessary.

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

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

No.

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 an applicable right or freedom - the Right to Health contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights and to the rights of people with a disability.

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 policy underlying the attached instrument 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. Further, the instrument ensures funding for mental health treatment is demand-driven and not capped—if an eligible person requires treatment, it is funded.

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 mental health conditions on a non-liability health care basis.  It engages the Right to Health by implementing an expanded regime of DVA-funded care and support for mental health care treatment for all current and former members of Australia’s Defence Force.  Accordingly, it is considered to be “human rights compatible”

Dan Tehan

Minister for Veterans’ Affairs

Rule-Maker

FURTHER EXPLANATION OF PROVISIONS

See Attachment A

Attachment A

FURTHER EXPLANATION OF PROVISIONS

Section 1

This section sets out the name of the instrument – Veterans’ Entitlements (Treatment Principles – Extension of Non-Liability Health Care for Mental Health Treatment) Amendment Instrument 2016.

Section 2

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

Section 3

This section sets out the empowering provision of the Veterans’ Entitlements Act 1986 under which the variations to the Treatment Principles are made.  Specifically, these variations are made by the Repatriation Commission (the Commission) under subsection 90(4) of that Act.

Section 4

This section provides for the Treatment Principles to be varied in accordance with the items in the Schedule.

Schedule  – Variations to the Treatment Principles under the Veterans’ Entitlements Act 1986

The variations outlined in items 1 to 5 of the Schedule amend the provisions of paragraph 2.4 of the Treatment Principles to remove the references and provisions relating to the treatment of mental health conditions.  As a result, paragraph 2.4 will be limited to the Commission’s responsibilities in relation to NLHC applications by veterans for the treatment of malignant neoplasia and pulmonary tuberculosis.

The Commission’s responsibilities in relation to requests for treatment for mental health conditions for veterans and others within the expanded new class specified in the section 88A determination will be dealt with separately in paragraph 2.5A.

Item 1

This item updates the heading in paragraph 2.4 to remove the reference to the “mental health conditions”.

Item 2

This item omits the reference in paragraph 2.4.1 to mental health conditions – namely, post-traumatic stress disorder, alcohol use disorder and substance use disorder.

Item 3

This item omits paragraph 2.4.2A.

Item 4

This item omits paragraph 2.4.2B.

Item 5

This item omits the reference in subparagraph 2.4.3(b) to mental health conditions – namely, post-traumatic stress disorder, alcohol use disorder and substance use disorder.

Item 6

This item omits paragraph 2.4.5.

Item 7

This is a minor “tidy-up” measure to update the heading in paragraph 2.5 following the recent Veterans’ Entitlements (Treatment Principles – Streamlining Access to Non-Liability Health Care) Amendment Instrument 2016 (Instrument 2016 No.R16). 

Item 8

This is a consequential change to update the note at the end of paragraph 2.5 to refer to the Veterans' Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016 made under section 88A of the VEA.

Item 9

This item substitutes the heading and provisions of paragraph 2.5A.

Paragraph 2.5A.1 establishes the Commission’s financial responsibility for treatment in relation to the expanded class of persons specified in Part 2 of the Veterans' Entitlements (Extension of Non-Liability Health Care for Mental Health Treatment) Determination 2016.

Paragraph 2.5A.2 gives the Commission discretion to review and withdraw financial responsibility for treatment at any time after 6 months from the date from which financial responsibility for treatment was accepted.

The discretion is enlivened in cases where the client, following a request by the Commission, has not provided a diagnosis for the relevant mental health disorder within that 6 month period, or where the Commission is otherwise satisfied that the client does not have, or no longer has, the relevant mental health condition.

The examples illustrate how the 6 month review mechanism is intended to work in practice.

Para 2.5A.3 empowers the Commission to fund the cost of any reasonable treatment to the extent that it is a necessary part of, and is directly associated with, the treatment of the person’s mental health condition for which the Commission has accepted financial responsibility under 2.5A.1.