B61/1993 The decision-making process

DATE OF ISSUE: 11 NOVEMBER 1993

The decision-making process

Introduction

A Departmental Instruction was issued following the High Court's decision in Bushell v. Repatriation Commission concerning the manner in which claims for pension relating to operational, peace-keeping, and hazardous service were to be considered.  That instruction noted:

“The ... approach has support in the judgments of the High Court in Bushell's case and is an approach supported by Mr Justice Toose.  There might be argument as to the order in which some steps are taken or to other aspects of the approach adopted by the Commission, but each of the steps and their order have support in one or more of the judgments.  The fact that there were three separate judgments delivered by the Court, each with apparently different approaches, encourages legal argument as to which approach would be adopted by the Court if it were to be asked to specifically address these issues in another case.  The High Court was not required to address them all in Bushell's case, and thus a number of the statements of the Court are not strictly binding, although, of course, each must be examined carefully and given serious consideration.”

The High Court, on 15 September 1993, delivered its judgment in Byrnes v. Repatriation Commission in which it clarified a number of issues.  Additionally, the Federal Court, on  10 September 1993, delivered a judgment in Preston v. Repatriation Commission which clarifies other issues.  In light of these recent judicial authorities, the Repatriation Commission has decided to withdraw the earlier Departmental Instruction and issue the following advice to its delegates.

The decision-making process

The following is the order and manner in which matters are to be determined where claims for pension relate to operational, peace-keeping and hazardous service:

It should be emphasised that the question which the decision-maker must answer, under stage 1, is whether or not any hypothesis of a relevant connection with service that is raised is reasonable.  At this point it is assumed the facts put forward by the claimant are correct.  It is not a matter of whether the hypothesis is correct or of preferring one reasonable hypothesis of causation over another.

the decision-maker —

• considers the nature of the claim and decides what the claim is about;

• examines the material

-is the claimant a “veteran”, “dependant”, “member of a Peace-keeping Force”, “member of the Forces”?

-has the veteran (etc.) rendered the relevant service?

Stage 1.the causal connection (subsection 120(3))

• evaluates, under subsection 120(3), all the material, and determines whether there is:

-anything in the material that points to the veteran (etc.) suffering from the claimed condition or having suffered from the condition alleged to have caused death;

-any material that raises a reasonable hypothesis of a connection between the alleged disability or death and the alleged facts of the particular service;

• if a reasonable hypothesis is not raised, further investigation should be considered where the facts of the case warrant it;

• if, as a result of further investigation, no further material raises a reasonable hypothesis of a connection between the alleged disability or death and the alleged facts of the particular service, then the decision-maker can be satisfied beyond reasonable doubt that there is no causal connection, and the claim must fail;

• if any material is found that supports an hypothetical causal connection that is not fanciful, untenable nor “contrary to proved scientific facts or the known phenomena of nature”, then a reasonable hypothesis is raised;

If the claim satifies stage 1, and there is a reasonable hypothesis, the decision-maker must decide under stage 2 whether the facts support the reasonable hypothesis.  For the claim to be rejected at this stage, the decision-maker must be satisfied “beyond reasonable doubt” that the facts have been disproved or are inconsistent with the reasonable hypothesis.

Stage 2.the facts (subsection 120(1) or (2))

• evaluates, under subsection 120(1) or 120(2), all the material, and determines whether there is material that:

-disproves any of the facts that would be necessary for the reasonable hypothesis to apply; or

-proves the existence of a fact that would be inconsistent with the reasonable hypothesis such that, if the fact were true, the reasonable hypothesis could not apply;

• if there is such material, is it such as to satisfy the decision-maker “beyond reasonable doubt”?

-if so, the injury, disease or death is not war-caused or defence-caused;

-if not, the injury, disease or death is war-caused or defence-caused, unless a further investigation is warranted;

• if there is no such material, the injury, disease or death is war-caused or defence-caused, unless a further investigation is warranted;

• if, as a result of further investigation, no further material can satisfy the decision-maker beyond reasonable doubt, then the injury, disease or death is war-caused or defence-caused.

Medical opinions and the “reasonableness” of an hypothesis

To be “reasonable” an hypothesis must be reasoned.  That is, it must be an explanation, that is not fanciful or opposed to known scientific facts, as to the process by which a factor or factors within the relevant service is alleged to be relevantly connected to the injury, disease or death.  Therefore, a mere assertion by a medical expert is not sufficient, of itself, to raise a reasonable hypothesis.  The medical expert must show the reasoning process behind the assertion before it can be regarded as reasonable.  This is clear from the following statement from the joint judgment in Bushell:

“[T]he case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.  Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.  As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another.  This does not mean, however, that in performing its functions under s. 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran.  But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.” (109 ALR 30 at p. 35, emphasis added)

The first three sentences of the above statement are qualified by the next two sentences.  Their Honours state that the decision-maker is bound to examine the reasoning which supports the alleged connection.

Nevertheless, where an expert in the relevant field submits a reasoned hypothesis of causation (in determining whether an hypothesis is reasoned, one must look critically at research or other material on which the reasoning is based), it should be accepted as a reasonable hypothesis unless other expert medical opinion renders it fanciful, impossible, incredible, not tenable or too remote or too tenuous.  Moreover, it must be kept in mind that an hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.

The following quote from the joint judgment is relevant in this regard:

“Whether the hypothesis of Dr Schiller and Dr Miller is right or wrong, it could hardly be said that it was fanciful, impossible, incredible, not tenable or too remote or too tenuous unless it was established that there was no temporal connection between the appellant's anxiety state and his hypertension.  If the Tribunal had accepted the opinion of Professor O'Rourke that the later severe hypertension of the appellant developed in the absence of anxiety, the factual basis of the hypothesis of Dr Schiller and Dr Miller would collapse.  But, except on that basis, it is not easy to see how it could be said that the material did not raise a reasonable hypothesis connecting the essential hypertension of the appellant with the circumstances of his particular service.  The hypothesis was supported by two eminent practitioners who drew on scientific studies which championed the theory.  It was also conceded that 'some respectable medical practitioners' accept the connection between stress and essential hypertension.  It is a connection which apparently also has the support of the National Heart Foundation.  True it is that the weight of informed medical opinion is against the hypothesis. However, the cause of essential hypertension is still unknown.  In these circumstances, a finding that the hypothesis was not reasonable, although a matter for the Tribunal, is surprising.”

Summary of the process

The High Court summarised the process, in Byrnes' case as follows:

“(1)First, sub-s.(3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?  The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable.  If the hypothesis is not reasonable, the claim fails.  Proof of facts is not in issue at this point.

(2)If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless:

(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,

thus disproving, beyond reasonable doubt, the hypothesis.”

Thus it is clear from Byrnes' case that all factual questions are to be determined under subsections 120(1) or 120(2), after a reasonable hypothesis has been raised under subsection 120(3).

TONY ASHFORD

NATIONAL PROGRAM DIRECTOR

BENEFITS