B44/1995 APPLICATIONS FOR REVIEW OF THE CONTENTS OF A STATEMENT OF PRINCIPLES

DATE OF ISSUE:  7 JULY 1995

APPLICATIONS FOR REVIEW OF THE CONTENTS OF A STATEMENT OF PRINCIPLES

Purpose

The purpose of this Departmental Instruction is to outline the procedures to be followed after receipt of an application for review of the contents of a Statement of Principles.  Such applications are to the Specialist Medical Review Council under s196Y of the Veterans' Entitlements Act 1986.

Background

2.The changes to the Veterans' Entitlements Act 1986 that established the Repatriation Medical Authority (RMA) also established the Specialist Medical Review Council (SMRC).

3.The SMRC was established to review decisions of the RMA.  The reviews conducted by the SMRC are limited to matters of medical and scientific facts based on current epidemiological criteria.  The SMRC can only consider material that was available to the RMA at the time that it made its decision.

4.Professor Alex Cohen FRACP, who was Chairman of the Committee of Presidents of Medical Colleges  accepted appointment by the Minister as the Convener of the SMRC.

5.Applications for review to the SMRC are only concerned with entitlement issues and not with any income support or assessment matters.

6.It is deliberate that these applications are for a "review" and are not referred to as an "appeal".  This is because no matter of law can be argued nor a submission made on the law to the SMRC.

7.Applications for review have been received for malignant neoplasm of the prostate, malignant neoplasm of the colon and hypertension.

Procedure

8.An officer in either the National Office or one of the State Offices who receives what looks like an "appeal" against a decision made at the primary level must ascertain whether in fact that it is

• an appeal to the Veterans' Review Board, or

• an appeal to the Administrative Appeals Tribunal, or

• a request to the Repatriation Medical Authority to reconsider a SOP, or

• an application to the Specialist Medical Review Council under s196Y to review the contents of a SOP.

Identifying an application to the RMA

9.A letter received in a State Office that looks like it may be an appeal to the VRB requires that to be tested by forwarding it to the VRB.  However it is possible that the letter also is intended to be a request for a Statement of Principles to be made or amended by the RMA.  Anything that includes the words Statements of Principles or SOP should be considered more closely.

10.If on consideration of a letter it is discovered that a SOP already exists then the next step must be addressed.  Is it an application to the SMRC for review of the SOP?

Identifying an application to the SMRC

11.Any letter received by a State Office that refers to a decision made by the Department or the VRB or the AAT may still be able to be a review to the SMRC.  State Managers should be consulted.  If there is any doubt then the SMRC Secretariat should be contacted for advice after a copy of the letter has been faxed to them.

Legislative requirements for applications to the SMRC

12.A request for a review of a SOP may be made by any person eligible to make a claim for disability or widow/ers pension or an organisation that represents veterans or other members of the Forces.

13.It must be made within 3 months of the decision of the RMA (which is usually one week prior to the gazette date) that issued, refused to issue or amended a SOP (see s196Y and s196Z).

14.It must be made on a form approved by the SMRC.  These forms were approved by the Convener of the SMRC on 29 June 1995 and are currently in production.  They will be distributed to the State Offices as soon as they are printed.  A copy of the forms appears as an appendix to this Instruction.

15.Applications must be lodged at an office of the Department and state the grounds on which the review is sought.  It is therefore critical that State Offices recognise such applications.

16.There are other provisions that do not affect the State Offices (see s196W) but which govern the ability of the SMRC to conduct that review and to make a decision.

Conduct of a Review

17.Once the SMRC has been notified of an application to review an SOP it must publish a notice in the Commonwealth Gazette (see attached notice for prostate cancer).  This details the timetable that the SMRC will follow in preparing for an appeal.

18.Only those persons or organisation that provide a written submission may be asked to make an oral submission.  No matter of law can be argued before the SMRC nor can a legal practitioner appear before the SMRC.

19.The decision of the SMRC can be to

• direct the RMA to amend or determine a SOP in accordance with any directions given; or

• remit the matter to the RMA for a reconsideration in accordance with any directions given; or

• declare that there is no sound medical-scientific evidence to justify a SOP or amendment to a SOP; or

• declare that there is insufficient sound medical-scientific evidence to justify a SOP or amendment to a SOP.

All such decisions must be in writing.

20.There is no further avenue of review of that SOP.  There are then time constraints on when that SOP can next be reviewed.

Contacting the SMRC

21.Contact with the Secretariat can be by phone or, mail or fax.  The address of the SMRC is,

SMRC Secretariat

PO Box 859

WODEN ACT 2606

Phone: 06 289 6658

Fax:06 289 4744

W.R. MAXWELL

BRANCH HEAD

COMPENSATION AND REVIEW

Appendix 1

DRAFT ONLY

REQUEST FOR REVIEW BY THE SPECIALIST MEDICAL REVIEW COUNCIL

Veterans' Entitlements Act 1986, Part XIB

IMPORTANT NOTES FOR USER 1.The Specialist Medical Review Council (SMRC) has been established under Part XIB of the Veterans' Entitlements Act  1986 (the Act) to review: the contents of a Statement of Principles in respect of a particular    kind of injury, disease or death; or a decision of the Repatriation Medical Authority (RMA) not to determine a Statement of Principles in respect of a particular kind of injury, disease or death. 2.A request to the SMRC must be made in accordance with this form. If you wish to make a request about more than one Statement of Principles or decision of the RMA not to carry out an investigation please use separate forms. 3.This form should be read in conjunction with the SMRC brochure. The SMRC Secretariat may be telephoned on (008) XXXX if you have any further queries. 4.Once completed, this form should be lodged at an office of the Department of Veterans' Affairs and not with the SMRC. 5.The SMRC does not make or review decisions about individual Repatriation pensions. 6.         In conducting a review of the contents of a Statement of Principles or of a decision not to determine a Statement of Principles, the SMRC cannot consider medical-scientific material that was not before the RMA when it determined the Statement of Principles or decided not to determine a Statement of Principles. 7.        If new medical-scientific evidence is sought to be introduced, it should be sent to the RMA with a request for an investigation rather than to the SMRC. 8.If you have any queries regarding claims for pension you should contact the Department of Veterans' Affairs.

WHAT THIS FORM CAN BE USED FOR This form can be used to ask the SMRC to review: 1.the contents of a Statement of Principles in force provided the period within which the Statement of Principles may be disallowed by Parliament has ended and the Statement of Principles has not been disallowed; 2.a decision of the RMA not to make a Statement of Principles  in respect of a particular kind of injury, disease or death; or 3.by application within 3 months from a decision of the RMA                refusing under s.196C(4) of the Act to carry out an investigation in respect of a particular injury, disease or death where a person or organisation has asked the RMA under s.196E of the Act to review the contents of a Statement of Principles, in respect of a particular kind of injury, disease or death or its decision not to make a Statement of Principles in respect of a particular kind of injury, disease or death

Who is making this request to the Specialist Medical Review Council (mark only one box)?

a PERSON eligible to make a claim for pension under Part II or IV  of the Veterans' Entitlements Act 1986 (that is, a veteran or a dependant of a veteran, or a member of the Defence Force or Peacekeeping forces or a dependant of a member, who is eligible to claim a Repatriation pension about the injury, disease or death of the veteran or member), Go to               Section A; or

an ORGANISATION representing veterans, Australian mariners, members of the Forces, members of Peacekeeping Forces or their dependants, Go to Section B; or

the Repatriation Commission, Complete Section C.

PART 1

Section A — request by a person

Personal particulars

Title (eg. Mr, Mrs)    Surname                                 DVA File No

Given Names

Address for correspondence

.................................................................................................................................................................................................................................................................................................................................................................................................................................... Telephone No (work)                               Telephone No (home)

Now go to Part 2

Section B - request by an organisation

Name of organisation

Address for correspondence

.............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

Name and telephone number of contact officer

Now go to Part 2

Section C - request by the Repatriation Commission

Name and telephone number of contact officer

Now go to Part 2

PART 2

All questions must be completed:

1.Type of request for review:

Describe the type of request for review to the SMRC by marking only one of the following boxes:

review of the contents of a Statement of Principles in force under Part XIA (this will only be processed where the period within which the Statement of Principles may be disallowed               has ended and the Statement of Principles has not been               disallowed);

review of a decision of the RMA not to make a  Statement of Principles in respect of a particular kind of injury, disease or death; or

an application within 3 months of a decision of the RMA refusing under s.196C(4) to carry out an investigation where                                                            a person has asked the RMA under section 196E to review  the contents of a Statement of Principles or its decision not to make a Statement of Principles and the RMA refuses under s.196C(4) to carry out an investigation.

2. What is the particular kind of injury disease or death to which this request relates?

...........................................................................................................................................................................................................................................................................................................................

3. If the request concerns a Statement of Principles in respect of a particular kind of injury, disease or death, please specify the instrument and instrument number (if known).  If not, state "not applicable".

..................................................................................................................................................................................................................

4. Grounds on which the review is sought, for example there is sound medical-scientific evidence the RMA could have relied upon  (please refer to the notes below):

It is recommended that you examine the medical-scientific material that has already been considered by the RMA before completing this form.  This material is available on request from the RMA Secretariat, telephone (07) 831 7183.

The grounds on which the review is sought are: ................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................(if space is insufficient, please attach further explanation)

Notes:

(a) Review of the contents of a Statement of Principles or a decision of the RMA not to determine a Statement of Principles

The critical issue is whether there was sound medical-scientific evidence or sufficient sound medical-scientific evidence available to the RMA:

When carrying out the review, the SMRC will carry out a review of all the information that was available to the RMA when it determined, amended or last amended the Statement of Principles or decided or last decided not to determine a Statement of Principles in respect of that kind of injury, disease or death.

In conducting a review of the contents of a Statement of Principles or of a decision not to determine a Statement of Principles, the SMRC cannot consider medical-scientific material that was not before the RMA when it determined the Statement of Principles or decided not to determine a Statement of Principles.

If new medical-scientific evidence is sought to be introduced, it should be sent to the RMA with a request for an investigation rather than to the SMRC.

If after carrying out the review, the SMRC is of the view that there is sound medical-scientific evidence on which the RMA could have relied to amend a Statement of Principles in force in respect of that kind of injury, disease or death or to determine a Statement of Principles,  the SMRC must make a declaration in writing stating its views, setting out the evidence in support and directing the RMA to amend or make the Statement of Principles in question or remit the matter to the RMA for reconsideration in accordance with any directions or recommendations.

Alternatively, if after carrying out the review, the SMRC is of the view that there is no sound medical-scientific evidence that justifies the making of a Statement of Principles or an amendment to the Statement of Principles in force or the sound medical-scientific evidence is insufficient then the SMRC must make a declaration in writing to that effect giving the reasons for its decision.  The SMRC may include in the declaration, any recommendation that it considers fit to make about any investigation that the authority may carry out in respect of that kind of injury, disease or death.

(b) Review of a decision of the RMA not to carry out an investigation:

The critical issue is whether there is a new body of sound medical-scientific evidence that has not been considered by the RMA:

In this review, the SMRC must consider the reasons given by the RMA for making the decision, the information the RMA relied upon and the grounds on which the request for the review was made and any submission in support of those grounds.

If after considering the above information, the SMRC is of the view that there appears to be a new body of sound medical-scientific evidence that has not been previously considered by the RMA and that body of evidence, together with the sound medical-scientific evidence available to the RMA could justify the making of a Statement of Principles, or an amendment to a existing Statement of Principles, the SMRC must make a declaration in writing to that effect giving the reasons for the decision and directing the RMA to carry out an investigation.

Alternatively, if not of the above view, the SMRC must make a declaration in writing that affirms the decision of the RMA not to carry out an investigation and giving the reasons for its decision.

A request for review may be accompanied by supporting medical-scientific material in support of the application.

5.Describe briefly below, the medical-scientific material (if any) that accompanies this request. If no material is attached please state this:

...............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

6. Will further medical-scientific material be submitted?

Yes     No

Notes: In conducting a review of the contents of a Statement of Principles or of a decision not to determine a Statement of Principles, the SMRC cannot consider medical-scientific material that was not before the RMA when it determined the Statement of Principles or decided not to determine a Statement of Principles.

If new medical-scientific evidence is sought to be introduced, it should be sent to the RMA with a request for an investigation rather than to the SMRC.

7. The request must be signed and dated below.

Date         /        /Signature

The completed application, together with any attachments, must be lodged at an Office of the Department of Veterans' Affairs. DO NOT send this form to the RMA.

Appendix 2

The SMRC has notified its intention to carry out a review of the contents of the SOP for prostate cancer. The notice appeared in Commonwealth of Australia Gazette GN 26, 5 July 1995.