DATE OF ISSUE: 02 February 1993
The decision-making process
Introduction
Following the High Court's decision in Bushell v. Repatriation Commission, the Repatriation Commission, which is charged with administering the legislation, has a responsibility to state its position concerning the decision-making process to be followed by its delegates.
The following 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.
In this context, the Repatriation Commission has decided to issue the following advice to its delegates concerning the manner in which claims for pension relating to operational, peace-keeping, or hazardous service are to be considered.
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 or hazardous service:
The steps in the processExample case
Stage 1 finding factsNB: The facts and medical evidence in
this example are fictitious.
The decision-maker -
.considers the nature of the claim - ie
-what is the claim about?Claim for disability pension for "cancer"
which he claims is due to "alcohol habit
that commenced during the war".
-is the claimant a "veteran",Service documents indicate:
"dependant", "member of a Enlisted in AIF in 1940, discharged in
Peace-keeping Force",1945
"member of the Forces"?∴He is a "veteran"
-has the veteran (etc)Service documents indicate service in
rendered the relevant service?Middle East, New Guinea and Morotai.
∴ He has rendered “operational
service
.evaluates, under subsection — The diagnosis of his treating doctor is
120(1) or 120(2), all the“cancer of tongue”.
material, and determines
whether, there is reliable∴ Material supports “disease”
material that tends to show,of cancer of tongue
positively, the disability or
death claimed and the facts of — Veteran says he started drinking in
the particular service upon — Egypt in 1941. Service documents
which a connection might be — indicate that he was in Egypt in 1941.
raised;
∴ Material tends to show only a
temporal, but not a causal connection
.if there is no such material,Seek a statement from the veteran as to
further investigation should be — why he started to drink. (This is to
considered;attempt to find factors of service, if any,
that might have been instrumental in
initiating and continuing his habit?)
Find out whether the veteran has a
smoking history and, if so whether it
might be service-related. (Medical opinion
is that smoking is the only known risk
factor.)
.if, as a result of further — If no further statement is obtained or no
investigation, no further material is found as to the reason why the
material tends to show,veteran commenced and continued to
positively, the disability or drink, and there is no material as to
death claimed and the facts of smoking, then there is no material that
the particular service upon points to facts of the particular service
which a connection might be upon which a connection might be raised.
raised, then the decision-maker
can be satisfied beyond reasonable ∴ The decision-maker is satisfied
doubt that there is no causal beyond reasonable doubt that there is
connection, and the claim must fail;no causal connection and the disease is
not “war-caused”.
.if material is found that tends to Veteran says: I only smoked once - I
show, positively, the disability didn't like the taste - but I started to
or death claimed and the facts of drink because I was nervous about going
the particular service upon into action, and I wanted to be “one of the
which a connection might be boys”. I went on a binge when a mate
raised, then the decision-maker was killed. I had a lot of upsetting
proceeds to determining whether experiences during the war. Since then,
or not a reasonable hypothesis when things upset me, I drink a lot. I
of a connection is raised;have a few glasses of Fosters every day.
Stat. dec. from mate confirms veteran's
account of his habit during and after
service.
∴Material exists that tends to show
facts of service that might have
contributed to the veteran's alcohol
habit - go to stage 2, below.
Stage 2. the causal connection
the decision-maker -
.evaluates, under subsection — DMO's opinion:
120(3), all the material, and .I am unaware of any credible body of
determines whether there is medical opinion that suggests that
reliable material that raises a beer drinking might be a risk factor in
reasonable hypothesis of a cancer of the tongue. All the text
connection between the books and studies of which I am
disability or death and the facts aware indicate that smoking is the
of the particular service found only known risk factor; and
under stage 1, above;.stressful episodes can lead to alcohol
abuse and frequent alcohol abuse can
lead to alcoholism or alcohol
dependency.
Veteran's treating specialist, Dr X, says:
.I believe that regular beer drinking,
such as that asserted by the veteran,
might be a risk factor in cancer of the
tongue.
Dr X does not say why he holds this view.
∴ There is no reliable material that
raises a reasonable hypothesis.
.if a reasonable hypothesis is not Seek a further opinion from Dr X as to
raised, further investigation — the basis for his view, what other casues
should be considered;are there of cancer of the tongue, and the
likelihood of one or more of these causes
being the actual cause in the veteran's
case.
if, as a result of further If Dr X responds by saying that he knows
investigation, no further of no medical studies to support his view,
material raises a reasonable but bases it on the fact that a number of
hypothesis of a connection his patients with cancer of the tongue are
between the disability or death heavy beer drinkers, then there is no
and the facts of the particular medical or scientific basis for the
service, then the decision-maker hypothesis.
can be satisfied beyond
reasonable doubt that there is no ∴ There is no reliable material that
causal connection, and the claim raises a reasonable hypothesis and the
must fail;disease is not “war-caused”.
.if material is found that raises a — If Dr X responds by:
reasonable hypothesis of a .submitting a recent, well researched,
connection between the medical study to support his view;
disability or death and the facts but
of the particular service, then.the study indicated that decades of
the decision-maker proceeds to use of one particular brand of beer,
determine whether the further unavailable in Australia, had been
material that has been implicated, but none of the Australian
discovered by the investigation brands had shown any association,
under subsection 120(3) would then while there is a scientific basis for a
satisfy the decision-maker reasonable hypothesis connecting beer
beyond reasonable doubt of the drinking with cancer of the tongue, a
existence of some further fact further fact has emerged that destroys the
which destroys the applicability applicability of the hypothesis in the
of the reasonable hypothesis;veteran's case - i.e., the veteran has not
had access to the implicated brand of
beer.
∴ The decision-maker is satisfied
beyond reasonable doubt that there is
no causal connection and the disease is
not “war-caused”.
.if material is found that raises a If Dr X responds by:
reasonable hypothesis of a .submitting a recent, well researched,
connection between the medical study to support his view and
disability or death and if no all brands were shown to have an
further material was discovered association; and
when considering whether a .this study cannot be shown to be
reasonable hypothesis exists, or — scientifically or medically unsound,
if no further fact destroys the There is reliable material that raises a
applicability of the reasonable reasonable hypothesis, and the factual
hypothesis, then the injury, basis has not been disproved beyond
disease or death must be reasonable doubt.
determined to be war-caused.∴ The disease is “war-caused”.
It should be emphasised that the question that the decision-maker must answer, under stage 2, is whether or not an hypothesis that is reasonable is raised. If, after the evaluation of all the material, there is raised any reasonable hypothesis of a relevant connection with service (see sections 8, 9 and 70), the claim must succeed. It is not a matter of preferring one reasonable hypothesis of causation over another.
Medical opinions and the “reasonableness” of an hypothesis
To be “reasonable” an hypothesis must be reasoned. That is, it must be an explanation 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, it should be accepted as a reasonable hypothesis unless there is no factual basis for the application of the hypothesis in the particular case, or 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.”
PETER HAWKER
NATIONAL PROGRAM DIRECTOR
BENEFITS