Advisory from Disability Compensation Branch

No 8/99

[4]

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed on this as a policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   Any advice contained in it is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

REVIEWS OF STATEMENTS OF PRINCIPLES BY THE SPECIALIST MEDICAL REVIEW COUNCIL

Introduction

Statements of Principles (SoPs) published by the Repatriation Medical Authority  (RMA) may be challenged at the Specialist Medical Review Council (SMRC).  Since the first two decision of the SMRC were challenged both in the Federal Court and the NSW Supreme Court the Council does not appear to have been active.

Those two decisions of the SMRC have been heard and decided by the New South Wales Court of Appeal.  The majority decision has been largely favourable to the position taken by the SMRC, the RMA and the Repatriation Commission.  The Council may now become more active.  Nevertheless a detailed comment on the judgement may be needed later.

Applications for review

From time to time applications for a review of Statements of Principles by the Specialist Medical Review Council (SMRC) are received in State Offices.  Any requests should be forwarded to the

Registrar

Specialist Medical Review Council

PO Box 895

WODEN ACT 2606

The Registrar is Kevin O'Sullivan and he can be contacted on 03 9284 6784

This advisory is a summary of the functions of the SMRC as they are understood.  There is a case before the NSW Court of Appeal concerning the operation of the SMRC and what the legislation requires it to do.

What can the Council consider?

The Specialist Medical Review Council (the “Council”) is required, under section 196W, to review all the information that was available to the Repatriation Medical Authority when it determined a Statement of Principles in respect of a medical condition.  Its review is of “the contents” of that Statement of Principles.

The Council appears to have taken a wide view of this power in the beginning.  This has been the subject of litigation.  In the New South Wales Supreme Court the narrower view was held.  The decision of the NSW Court of Appeal does not appear to disturb that view and certainly the Council has been more limited in its consideration in later decisions.  If there is no dispute about other material the Council normally confines its attention to the matters raised before it.

Information available to the Repatriation Medical Authority

While the subject of the review is the contents of the Statement of Principles, subsection 196W(2) makes it clear that the Council must, for that purpose, carry out a review of all the information that was available to the Repatriation Medical Authority when it determined the Statement of Principles.

Section 196K indicates what is meant by the phrase, “the information that was available”, by stating that the Repatriation Medical Authority must send to the Council “a copy of all the information that was available to it” when it determined the Statement of Principles.

Subsection 196C(3) indicates the meaning of the extent of the information that was available to the Authority.  The Authority may rely only on sound medical-scientific evidence that has been submitted to it or that it has obtained on its own initiative or from the Secretary or from a consultant.

The scheme of the legislation, in broad terms, is that the Council reviews the information on which the Repatriation Medical Authority made the Statement of Principles to determine whether or not the contents of the Statement of Principles reflects the sound medical-scientific evidence contained in that information.

The decision of the NSW Court of Appeal upholds the view of the Council, that is it is only the material actually used by the RMA and not the widest sense of any material that was available.

In the context of its review of the information that was available to the Repatriation Medical Authority, the Council has taken the view that it is bound to take into account other material that explains, analyses or comments upon the information that was before the Authority.

Payments for reports and witnesses

There are provisions relating to payment of medical and travelling expenses incurred in respect of applicants obtaining “relevant documentary medical evidence” (sections 196ZN to 196ZP).  However, application, approval and payment is a function of the Repatriation Commission not the Council.

Any claims for payment should be forwarded to National Office (attention Ann Donnelly) for consideration.  Payment relates to the obtaining of medical reports and submissions from relevant medical-scientific experts that explain, analyse or comment upon the information that was available to the Repatriation Medical Authority.

Oral and Written submissions

Oral and written submissions address the information that was available to the Repatriation Medical Authority by reference to the definition of sound medical-scientific evidence in section 5AB.  This should include an analysis of that information by reference to the epidemiological and other criteria referred to in that definition.  Sections 196ZN to 196ZP are included in the Act for the purpose of assisting persons to obtain such an analysis from appropriately qualified experts.

The criteria for assessing causation currently applied in the field of epidemiology include, but are not confined to, what is commonly known as the Bradford Hill criteria. The explanatory memorandum to the legislation indicated that the Bradford Hill criteria were contemplated by the Parliament as the type of criteria intended to be applied.

Taking the best known epidemiological criteria, the Bradford Hill criteria, as an example only the following are the factors to be considered in assessing the medical and scientific value of a study:

• strength of association;

• dose response effect;

• consistency of findings;

• time relationship;

• biological plausibility;

• specificity of the association; and

• coherence of the evidence.

These are not exclusive criteria nor are they the only criteria available.  They are simply the ones most commonly known to the non-scientific world.  Any applicant can refer to any other criteria that are currently used in the medical-scientific world.

What happens about the decisions of the SMRC

The decision of the NSW Court of Appeal is that the Decision and declaration of the SMRC on Statement 96 of 1995 (factors that must exist before it can be said on the balance that the factor causes the disease) was correct.  No further SMRC review is required.

The declaration and decision of the SMRC on SoP 95 of 1995 (factors that must as a minimum exist before it can be said a reasonable hypothesis has been raised) is void.  The Council may have to rehear that matter.

Both SoPs 245 and 246 of 1995, motor neurone disease, were found to be in compliance with the law and were restored to vigor.  Those SoPs stand and there is no further need for the Council to rehear the matter of motor neuron disease.

Previous decisions of the SMRC

All the decisions of the SMRC are contained within the CCPS Research Library and will be available on CLIK.

The decision of Tamberlin J in the only Federal Court matter and the judgement of James J at the NSW Supreme Court are available in the Law Reports or from the Secretariat of the SMRC.

The recent decision of the NSW Court of Appeal will be available on the Court's web-site, the Law Reports (at a later date) or from the Registrar of the SMRC.

John R Douglas

Director

Policy Eligibility Research

Disability Compensation Branch

4 April 2000