Section 332 [3] of the MRCA defers to the VEA in relation to the SOP regime. The SOPs are legal instruments, made under section 196B [4] of the VEA. The SOPs provide the means by which specified diseases and injuries may be related to service.
The majority of medical conditions claimed by military personnel are covered by SOPs.
Each SOP condition has two instruments which reflect the different tests applicable to MRCA claims:
Section 338 [3] of the MRCA says that the 'reasonableness of hypothesis is to be assessed by reference to SOPs'. Section 339 [3] says that 'reasonable satisfaction is to be assessed ... by reference to SOPs'.
The SOPs are binding on Military Rehabilitation and Compensation Commission (MRCC) delegates and are an essential consideration in all liability determinations under MRCA.
The concept of SOPs has its genesis in the High Court decision in Bushell v Repatriation Commission [1992] 175 CLR 408. In that case, the High Court held that where an expert in a relevant field submits a reasoned hypothesis of causation, it should be accepted as a reasonable hypothesis unless other expert medical opinion renders it obviously fanciful, impossible, incredible, untenable, too remote or too tenuous. The High Court found that a hypothesis can still be reasonable even if unproved and against the weight of informed medical opinion. This had the potential to widen the scope of successful compensation claims.
The Government responded with the creation of the Veterans' Compensation Review Committee chaired by Professor Peter Baume. Its report - A Fair Go – recommended the establishment of an expert medical committee to ensure an equitable and consistent compensation system.
Consequently, the Repatriation Medical Authority (RMA) was established under section 196A [4] of the VEA on 30 June 1994.
The RMA is an independent statutory authority responsible to the Minister of Veterans' Affairs and comprising five members eminent in fields of medical science, including one epidemiologist (expert in disease causation).
The RMA determines the SOPs on the basis of sound medical scientific evidence. This evidence is articulated in causal and/or worsening factors contained within the SOPs. Hence SOPs take the part of medical opinion or expertise with regard to injury or disease aetiology and ensure that all possible factors are considered when determining liability.
This improves consistency in decision making as cases with similar facts should have the same outcome.
Links
[1] https://clik.dva.gov.au/user/login?destination=comment/reply/18959%23comment-form
[2] https://clik.dva.gov.au/user/login?destination=comment/reply/19037%23comment-form
[3] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-mrca
[4] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
[5] https://clik.dva.gov.au/user/login?destination=comment/reply/18988%23comment-form
[6] https://clik.dva.gov.au/user/login?destination=comment/reply/19034%23comment-form