Advisory from Disability Compensation Branch

No 1/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

APPLICATION OF NEW STATEMENTS OF PRINCIPLES

DATE OF EFFECT

Question

What is the date of effect when the Repatriation Medical Authority issues new or amended Statements of Principles?

Answer

A new Statement of Principles or a Statement of Principles which amends an existing Statement of Principles takes effect when it is notified in the Commonwealth of Australia Gazette. Notification in the Gazette counts as informing the public at large that new Statements of Principles SoPs have been made.

Notification of SoPs is necessary because section 196D of the Veterans' Entitlements Act 1986 provides that SoPs are disallowable instruments. Section 196D refers the reader to section 46A of the Acts Interpretation Act 1901 (the AIA).  Section 46A of the AIA applies to disallowable instruments and provides that sections 48, 48A, 48B, 49 and 50 of the AIA apply.  Paragraph 48(1)(a) of the AIA requires that SoPs be notified in the Gazette.

The RMA's notification includes details of where copies of the SoPs can be obtained.  This ensures compliance with the requirements of subsections 5(3) to 5(3C) inclusive of the Statutory Rules Publication Act 1903, brought in by section 46A(1)(c) of the AIA.  Subsection 5(3) makes it unnecessary to gazette the whole of the text of a SoP, merely requiring notice to be given that the SoP has been made, what its subject matter is and where copies can be obtained.

Until a determination takes effect, it is not law.  Therefore gazettal is an integral part of the determination process.

The date of effect of the decision

Does the date of decision affect the date of effect?

This is a different question and refers to the date the claim was received in the Department of Veterans' Affairs.

The date the claim was received determines the date of effect for pension and treatment benefits. The date of the decision is immaterial in determining that date of effect.

However, the SoP currently in force must be applied when making the decision, regardless of whether that SoP was in force when the claim was received.

Decision made between dates of signing and gazettal

What if there is a claim determined at the primary level between the date of signing by the Chairman of the RMA and the gazettal?

Answer

In fairness this should be the subject of a section 31 review as it would be possible for the Veterans' Review Board to make a fresh decision based on the new SoP.  Where there is information that a new or amended SoP is forthcoming, delegates should avoid making a decision until the Gazettal notice is advised.

Does this include notification under section 196G of a formal investigation?

Answer

No.  There is a Departmental Instruction published on dealing with this scenario.  In addition the Federal Court has indicated that it is improper to delay a decision because of the commencement of a formal investigation.  That investigation and any consequent decision may take months or years, and will not necessarily advantage the claimant.

W.R. Maxwell

Branch Head

Disability Compensation

19 January 1999

Advisory from Disability Compensation Branch

No 2/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

THE PROPER FUNCTIONS OF DELEGATES OF THE REPATRIATION COMMISSION AND THE DEPARTMENT OF VETERAN AFFAIRS

Compensation

Income Support

Health

Background

Letters to the Minister and the Secretary, contact with members of the Repatriation Commission and complaints to the Department have concerned the role of delegates.  In particular there is a concern about the treatment of supporting material by delegates of the Repatriation Commission.

These materials include Departmental Instructions, Commission Guidelines and commentary in CCPS.  It includes advice contained in the General, on CLIK and ELMNET [4].  It can be in the form of training and processing guides (official and unofficial).  The material also includes notes taken by delegates from their original training, legal opinion sought from and provided by Legal Services group and advice provided by policy areas in National Office.

The task and role of a delegate

The immediate problem identified is that there are delegates for the Repatriation Commission who do not now and have never understood or appreciated the task of a delegate.

Primarily the principle that is most misunderstood and not appreciated is that a delegate cannot be directed by anyone in the performance of the function of delegate of the Repatriation Commission or of the Department.

That is not to say that the Repatriation Commission or the Department of Veterans' Affairs cannot issue “Guidelines” or “Instructions” on certain matters.

Similarly State Offices can issue directions on the distribution of or availability of resources necessary conduct an investigation into a claim from a veteran or veterans' partner.

However, no-one can “direct” a delegate to make a particular decision or even to make a particular “finding of fact” (see Commission Guidelines CM 5017).

Sometimes delegates have a view that it if is not specifically stated in the legislation, guidelines, General Orders that we can do it then it will not be done.  Rather there should be an approach that if it is not specifically excluded by the legislation or if I have advice that I accept that it is not specifically excluded then it may be able to be done if the legislation is not compromised.

What is the purpose of seeking advice or “instructions”?

A delegate can seek the opinion of anyone as to the proper or intended operation of the Veterans' Entitlements Act 1986.  That source can be the representative of the veteran, an ex-service organisation a researcher, an expert or the policy or legal advice areas of the Department.

All such advice in whatever form that it takes is just an “opinion”.  That opinion might be on a set of facts or on how the legislation operates. That opinion may be persuasive or suggestive it may even be simply a rational explanation but it cannot take the place of the legislation.

Advice that conflicts with the lawful and proper operation of the Veterans' Entitlements Act 1986 can never supplant the legal requirements of the Act.

Advice that is overtaken by decisions in the Courts is no longer valid.  Indeed policy that may have had approval from the Repatriation Commission many years in the past cannot supplant the intent of the legislation especially when later Federal Court, or High Court, decisions have indicated the proper meaning and application of the legislation.  There may even be persuasive decisions by the President of the Administrative Appeals Tribunal.

What does this apply to?

This advice applies to all advice that may have been requested from someone in the past.  It includes responses to inquiries made in the circumstances of a particular case or situation or event.  At some time some other change may have overtaken that advice.

An example of this is if the policy area of the Department has given advice based on past experience but a later Federal Court decision results in a new view of the legislation intention.    Examples are or may be

• QS in Townsville
• The operation of the “beyond reasonable doubt” standard of proof
• The meaning of  “domicile”
• The requirement for residency
• The standard of proof to be applied to diagnosis
• The commentary contained in CCPS or ELMNET [4]

It applies to advice sought by delegates within any area of the Department that is then circulated amongst staff and delegates for information.  In the past this has been forgotten and there have been experiences of delegates forgetting their proper task is to make the decision according to law, not according to another's opinion.

Examples that have led to this advice

A delegate recorded on the file of a veteran claiming for an increase in pension that he was applying a tighter interpretation to the Special Rate tests because of instructions from National Office.  The “instruction” was nothing more than an answer to a request from the State Office for advice and assistance on interpretation of the special rate tests.

A delegate recorded in the reasons for decision that they were satisfied that the veteran had not been exposed to the factor required in the Statement of Principles.  This was because the commentary in CCPS said it was not usual for that exposure to occur for people in that branch of the service.  This was in spite of a description of the veteran's occupation that clearly allowed the possibility of exposure to that factor

A delegate explained that the reason for deciding that a person who had served in Allied forces was not an “Australian” because they did not reside in Australia immediately before the war.  The delegate was advised that this was not a requirement of the legislation.  The response was that that was what the delegate had been taught when they had their training and what they had been told by a senior delegate.  Furthermore the policy adviser was told that the delegate wouldn't change the way of deciding until instructed in writing on the decision to be made.

How do I know what is binding and what is advisory?

Departmental Instructions

These should only deal with matters that are capable of being instructed upon.  They concern the use of resources, the delivery of materials relations with other organisations, procedures to be followed and requirements for dealing with clients and public and fulfilling duties under the various Acts and Agency Agreements.  They do not relate to a delegate making a decision in a particular case.

Commission Guidelines

These are advisory.  They will all in fact state that they cannot replace the legislation or the proper application as revealed by the Courts.  They will have actually been considered in detail by the Commission so that to operate outside the guidelines would indicate that there is a problem with them or that the delegate is not applying the legislation as intended by the Parliament and explained by the Courts.

Statements of Principles

These are mandatory, as they are Legislative Instruments having the same authority as if they were an Act of Parliament.  They apply from the date of Gazettal and until they are rejected by either house of Parliament.  They are binding on all decision-makers.

Treatment Principles

These are mandatory as they are established as Legislative Instruments and have the same power as an Act of Parliament.  They are binding on all delegates.

Advice on issues from National Office policy areas

These are advisory.  However, they represent the best view of the legislation and the interpretation of the Courts that is possible.  If a delegate intends to make a contrary decision then it would be proper to advise the policy area that provided the advice along with the reasons that a different decision or conclusion was reached.  This is because it may reveal a further problem that has not been taken into account by the policy area.

Legal opinions from National Office

These are usually sought in particular circumstances to do with a particular veteran or claim.  The advice is the best available and is for the consideration of the delegate.  The delegate is not “bound” by this advice but it will be persuasive in the absence of a contrary view.  Any decision must refer to a delegate having reached his or her own views of the material with this as an aide but not an instruction.

Medical opinion from doctors

The Federal Court in the mater of A v Repatriation Commission endorsed the ability of any decision-maker to make a finding of fact from the evidence available and if that doing so entails no error of law.  In that case the Court said that it is open to make a finding that an applicant has exaggerated the extent of incapacity and it is rational, indeed necessary to change the psychiatric evidence to reflect that finding.   That principle is also true for the opinions of specialists and Departmental Medical Officers.   A common criticism of delegates is that they never question the opinion of a DMO when in fact they are duty bound to make that finding for themselves.

A delegate is entitled to make a decision that a doctor has misapplied the terms of GARP or that the ratings are unsustainable on the evidence before them.  That is a finding of fact.  Delegates are encouraged to look at all the material.  If they are wrong then either the s31 review process or the Veterans' Review Board will correct them.

Historical reports from researchers

Historical reports are usually in response to a specific request for factual information about certain claims or events.  The researcher may report on these things and a delegate may or may not accept as facts some or all of the report.  However it is clear that since the researcher/reporter does not make the decision the reports is simply more evidence to be considered.  In the absence of a contrary report from an equally qualified historian then the report may be persuasive but not binding.

Contracts for researchers should ensure that the report does not contain language that asserts that a certain specified outcome must result from the report.  It is not the researcher's place to tell a delegate or claims examiner that a veteran is not entitled to a benefit.  Nor is it proper for the researcher say that because a veteran's story does not accord with the historical evidence that he is lying. That is a conclusion that only the delegate may reach.

WR Maxwell

Branch Head

19 January 1999

Advisory from Disability Compensation Branch

No 3/99

Please note: For further information in relation to Malignant Neoplasm of the Prostate and Consumption of Animal Fat refer to Advisory Note 1 of 2007 [6].

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

ANIMAL FAT CONSUMPTION

THE DR RUTH ENGLISH REPORT

AND

SUPPORTING PAPERS

Introduction

This paper is intended to assist decision-makers in applying the animal fat consumption factors in the Statements of Principles for malignant neoplasm of the prostate.  The paper is based on a report on animal fat in the Australian diet prepared for the Department of Veterans' Affairs in August 1998 by Dr Ruth English as well as results from a national household dietary survey conducted in 1936-8.

[1] [7] [2] [8]

The paper deals predominantly with WW2 veterans, as they are the main group to whom the SOPs apply.

The relevant SOP factors

Reasonable Hypothesis cases - Instrument 191 of 1996, Factor 1(b).

“increasing animal fat consumption by at least 40%, and to at least 70gms/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate”

Balance of Probabilities cases - Instrument 192 of 1996, Factor 1(b).

“increasing animal fat consumption by at least 40%, and to at least 70gms/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate”

Daily fat consumption

In relation to WW2 veterans, the requirement to have animal fat consumption of at least 70gms/day is easily satisfied, as both civilian and military diets at that time typically had animal fat content well in excess of that level.  The requirement to maintain an intake of at least 70gms/day for 20 or 25 years is also easily satisfied, as typical Australian diets contained animal fat in excess of that level until at least the 1970s.

This means that there is no general claim that a military diet was “fattier” than the previous civilian diet.  Individual claims must be treated on their merits.

The SOP factor requirement for an increase in consumption by at least 40% is the real test to be satisfied.  This is because an average civilian diet before and during WW2 contained more animal fat than most service rations.  In addition the SOP factors require that increased level of consumption to be maintained for 20 or 25 years and for that increased consumption to be attributable to service.

What questions need to be asked?

There are four questions that need to be answered.  It requires a “yes” answer to all of them for the SOP factors to be satisfied.

1. Did animal fat intake in the diet increase by at least 40%?

2. Was that increased intake maintained for at least 20 years (rh) / 25 years (bop)?

3. Was the initial increase in animal fat consumption attributable to service?

4. Was the increased intake over the next 20/25 years attributable to service?

Animal fat in civilian diet versus service diet - WW2

Dietary animal fat comes from two sources, (i) dairy products and (ii) meat and related products (including lard and offal).

A dietary survey conducted in 1936-38 indicates that the typical adult male civilian diet of that time contained around 114 to 130 grams (gms) of animal fat per day.  A further survey in 1944 points to an average animal fat intake of approximately 122 gms/day.  Dairy products provided slightly more than half of the animal fat content of that diet (56.5%) with butter being the single largest component (32%).

The animal fat content of service rations varied with the time and location of service.  The predominant source of animal fat in military diets was meat and related products (51 to 61%).  The daily animal fat contents of service rations issued during WW2 are detailed in the following table.

Table 1. Daily animal fat content of Australian diets/rations in WW2 era:

Diet	Animal fat (gms)
Average civilian diet (1944 survey) Military ration scales WW2:	122
1  Eastern and northern command       Standard military ration scale: Sep '39 to Aug '42	95.8
2  Temperate Australia       NSW, Victoria, SA, Tas, South WA, Qld - Rockhampton and south: from Aug '42	100.5
3  Tropical Zone       NT, northern WA, Qld - north of Rockhampton incl. Torres Islands: from Aug '42       NG and Pacific: Aug '42 to Apr '43	108.4
4  Middle East	117.4
5  New Guinea and Pacific  Apr '43 to Jan '44 6  New Guinea and Pacific  Feb '44 to Oct '45	113.2               131.8

Note: These service rations applied across all three services

To satisfy the SOP, animal fat intake must have increased by 40%.  Taking the Middle East ration as an example the following calculations can be made:

Maximum pre-service civilian diet animal fat content that would permit a 40% increase to 117.4 gms (ie civilian diet animal fat + 40% = 117.4 gms)	= 83.9 gms
Corresponding total civilian fat intake (using method from Dr English's report)	= 96.4 gms
Percentage of Australian adult male population with total fat content less than 100gms/day in 1938 survey (see appendix, table 7)	= 8.2%

Thus, approximately 92% of Australian adult males in 1938 had a diet that would exceed the maximum animal fat intake that would allow the SOP criterion to be met  in relation to service in the Middle East.

The corresponding figures for the other service ration scales are detailed in the following table:

Table 2. Civilian versus service daily fat intake necessary to meet SOP criterion, plus percentage of adult males with pre-service fat intake at or below relevant level

Ration scale †	Service Animal fat (gms)	Max. civilian Animal fat (gms)	Corresponding civilian total fat  (gms)		% adult males with total fat intake less than: ‡
1	95.8	68.4	78.7		80 gms =	1.96%
2	100.5	71.8	82.5
3	108.4	77.4	89.0		90 gms =	3.75%
4	117.4	83.9	96.4		100 gms =	8.16%
5	113.2	80.9	92.9
6	131.8	94.1	108.2		110 gms =	15.37%

†  See previous table

‡  Results only available in bands of 10 gms (see appendix, table 7)

For a veteran to satisfy the 40% increase requirement in the SOP, his pre-service animal fat intake would have to have been significantly below average (114 to 130 gms) and indeed lower than the great majority of the male population.  This would have required a diet very low in dairy products (for which substitutes were not generally available) and/or very low in meat products.

Trends in animal fat consumption over time

Total fat consumption over the decades since WW2 has declined slightly from an estimated 133.5gms/day in 1938-39 to 117.5gms/day in 1993-94.  However, animal fat consumption has declined considerably, from an estimated 116.9gms/day in 1938-39 to 56.0gms/day in 1993-94 (Appendix, table 3).  Animal fat has been replaced in the diet to a large extent by vegetable oils, including margarine.  Widespread consumption of vegetable oils commenced in 1972.

This increase in consumption of vegetable oils has meant that it would have been increasingly difficult to maintain an animal fat intake in excess of 70gms/day from around the early 1980s onward.

Rationing

The availability of butter and meat products was adversely affected by civilian rationing during and after WW2.  Butter was rationed from June 1942 to June 1950 and meat from January 1944 to June 1948 (Appendix, table 6).  The effect was to limit the availability of meat and butter, resulting in a diet lower in animal fat content.  As a consequence the consumption of animal fat is estimated to have fallen from 116.9 gms/head/day in 1938-39 to 102.5 gms/head/day in 1948-49.  It would therefore have been difficult in the immediate post-war years to maintain a diet with the same level of animal fat as service rations.

Accuracy of recalled past diet

The validity of a recalled dietary history is very much dependent on the individual's memory.  The accuracy of recall decreases with:

• Increasing time interval;
• Increasing age;
• Changes in the diet over time.

Problems identified in studies examining dietary recall include:

• Failure to report consumption of some foods actually eaten;
• Recollection of foods that were never eaten;
• Exaggeration of nutritional quality of diet, with reporting of what individuals perceive should have been eaten, rather than what they actually ate;
• Recall of past diet influenced by current diet.

These problems lead to inaccuracies in the recall of amounts and kinds of foods eaten, such that the correlation between the reported diet and the actual diet may be quite poor.  Dietary recall by a surrogate such as a spouse may well be less reliable than that obtained from the individual.

Factors influencing food choices

The evidence in the literature that supports the English Report suggests that food choice is not a simple process.  An individual's food patterns result from a wide range of factors that are complex and inter-related.

Factors affecting dietary patterns and practices are:

• Physiological factors including age, sex, level of physical activity and health status
• Food accessibility, the availability and affordability of food and the food selection practices in the household
• Food characteristics such as familiarity, physical appearance and flavour
• Environmental influences including parental and peer pressure, media advertising, knowledge about diet-health relationships and food-related customs and traditions
• Psychological influences including moods, emotions and events.

Food preferences, appetite and acceptance are developed through exposure to physical characteristics of foods in combination with environmental and psychological influences.  Past experience and attitudes are at least as important as the physiological state of the person and the sensation elicited by the food.  In particular, the experiences in the early years of life (prior to the age of 16 years) are among the strongest controlling factors in food preferences.

Bully Beef – a consideration

It is a common contention that “bully beef” (preserved meat provided as part of service rations), was a major component of some service diets and was high in fat.

The fat content of preserved meat in service rations was quite low, particularly compared to other forms of meat.  The animal fat content of preserved meat (including bully beef) was 11.2%.  This compares with 28.2% for ham and bacon, 32.7% for mutton and lamb, and 13.2% for beef.  Biscuits, fruitcake and ice cream had levels of 11.9, 13.9 and 11.0% respectively.

Based on the ration scales, the preserved meat component of servicemen's diets provided approximately 11 to 12 gms of animal fat per day in the Middle East, New Guinea and the Pacific Islands, and considerably less in Australia.  However, in operational areas, preserved meat was often substituted for fresh meat, which may have slightly reduced total animal fat intake, due to the lower fat content in preserved meat compared to fresh and frozen meat.

Conclusion

The reports of Dr English and the supporting reports and papers need to be considered as a whole and a judgement made about the circumstances of each claim in relation to what is now known to have been the situation in Australia, prior to, during and after World War 2.  Further information on the application of the English paper and the operation of the SOP may be forthcoming in the AAT when Deledio, which has been reheard, is decided.

W.R. Maxwell

Branch Head

Disability Compensation

28 January 1999

Appendix

Table 3. Animal fat consumption trends

in civilian Australian diets

Year	Animal fat (gms)
1938-39	116.9
1948-49	102.5
1958-59	110.7
1968-69	97.4
1978-79	75.8
1983	63.4
1988-89	55.2
1993-94	56.0

Table 4. Typical animal fat content

of various foods

Food	% animal fat
Lard	100
Butter	85.9
Cream	36.7
Mutton	32.7
Bacon/Ham	19.3 – 32.7
Cheese	29.0
Dried milk	23.7 – 26.2
Pork	18.0
Sausage	17.6
Beef	13.5
Preserved meat	11.2
Condensed milk	10.0
Fresh milk	4.3

Table 5. Contribution of different foods

to overall animal fat intake in typical 1944 civilian diet

Food	% of intake
Butter	32.0
Mutton	22.0
Beef	10.6
Fresh milk	8.0
Cakes, biscuits, scones	5.2
Condensed milk	4.7
Dried milk	3.4
Sausage	3.2
Dripping, oil, other fat	2.6
Bacon/Ham	2.5
Cheese	2.5
Lard	0.9
Pork	0.6
Cream	0.3
Preserved meat	0.2

Table 6. World War 2 era

Civilian rationing in Australia (adults)

Commodity	Date began	Rate/head/wk	Change	Rate	Change	Rate
Meat	17.1.44	2.25lb	26.2.45	2.10lb	7.4.45	1.84lb
Butter	7.6.42	8oz	5.6.44	6oz

Table 7. Frequency distribution of total daily intake

of fat (grams) for adult males in Australia 1936-8.

[3] [9]

Intake (grams)		Brisbane	Sydney	Melbourne	Adelaide	Perth	Total	%	cumulative %
40.1	- 50	1		1		1	3	0.17%	0.17%
50.1	- 60	1		0		2	3	0.17%	0.34%
60.1	- 70	2		2		1	5	0.28%	0.61%
70.1	- 80	0	3	6	9	6	24	1.34%	1.96%
80.1	- 90	2	4	7	13	6	32	1.79%	3.75%
90.1	- 100	11	11	8	25	24	79	4.42%	8.16%
100.1	- 110	24	23	14	45	23	129	7.21%	15.37%
110.1	- 120	27	37	42	81	37	224	12.52%	27.89%
120.1	- 130	40	37	31	69	34	211	11.79%	39.69%
130.1	- 140	37	49	35	54	40	215	12.02%	51.70%
140.1	- 150	40	54	54	43	44	235	13.14%	64.84%
150.1	- 160	25	44	46	35	33	183	10.23%	75.07%
160.1	- 170	26	43	44	19	20	152	8.50%	83.57%
170.1	- 180	22	26	36	13	15	112	6.26%	89.83%
180.1	- 190	14	9	23	5	6	57	3.19%	93.01%
190.1	- 200	9	14	18	2	6	49	2.74%	95.75%
200.1	- 210	5	6	7	7	5	30	1.68%	97.43%
210.1	- 220	7	0	6	2	2	17	0.95%	98.38%
220.1	- 230	2	3	6	0	1	12	0.67%	99.05%
230.1	- 240	1	3	0	0	1	5	0.28%	99.33%
240.1	- 250	1	0	1	1	1	4	0.22%	99.55%
250.1	- 260	0	0	0	0	0	0	0.00%	99.55%
260.1	- 270	0	0	0	0	0	0	0.00%	99.55%
270.1	- 280	1	0	1	0	0	2	0.11%	99.66%
280.1	- 290	0	0		0	0	0	0.00%	99.66%
290.1	- 300	0	0		1	0	1	0.06%	99.72%
300.1	- 310	0	0			0	0	0.00%	99.72%
310.1	- 320	0	0			0	0	0.00%	99.72%
320.1	- 330	0	0			0	0	0.00%	99.72%
330.1	- 340	1	1			0	2	0.11%	99.83%
340.1	- 350	1				0	1	0.06%	99.89%
350.1	- 360					1	1	0.06%	99.94%
630.1	- 640					1	1	0.06%	100.00%
Total		300	367	388	424	310	1789	100.00%

Advisory from Disability Compensation Branch

No 4/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

THE POWER TO REMAKE A DECISION

Background

From time to time it is discovered that a decision made in the past was made improperly.  That can be because of a mistake by a decision-maker, the inclusion of material that later proves to be false, the use of supporting material that does not relate to the veteran or claimant or the misapplication of the law.

The Minister and his advisers, and the Repatriation Commission and its advisers have been embarrassed in the past when action is taken to revoke decisions or to apply s31 to review decisions.

This advice is about common errors in decisions revealed by quality assurance checks or brought to the attention of the Department by representatives of the veteran or claimant.

It is about the correction of a decision where an obvious error has occurred and in law there is no basis for eligibility or in some cases for payment.  Such a situation can only be resolved according to law.  The action required is to treat the original claim as one that has had no decision made.  In other words the previous decision was never made.

This approach applies equally to income support, qualifying service, compensation and all allowance matters.

Most common forms of 'error'

Errors of omission

Only part of a claim has been decided and a disability has been overlooked.  It may be that a period of eligible service has been missed.  The original delegate, using the s19 powers, can correct this and complete the decision.

Errors of commission

A common example is an incorrect effective date or a wrong diagnosis. It may also be that a piece of information that applied to another person or event or the wrong medical report was used when making the decision.

If s 31(1) is available then the Team Manager or Review Officer can intervene to review the decision and substitute a new one.  The availability of s3 1(1) is affected by time limits relating to time has not expired for seeking formal review from the Veterans' Review Board or the Administrative Appeals Tribunal.  The more common situation is for the discovery of fundamental errors to occur many years later.

Where the time limits in s 31(1) have expired then s 31(6), 31(7) or 31(8) have to be considered.  The use of one or the other is critical and must be used according to the circumstances.

S31(6) applies only when a matter comes to light that was not available to the various decision-makers because of either a refusal or a failure to provide the relevant information.

S 31(8) applies only when the Commission believes that the rate of pension or allowance is lower than the correct rate.  This provision allows the decision-maker to make a new decision that applies the proper rate of pension from the original assessment date of the pension or allowance.

Decisions without merit

The Delegate may have properly exercised his or her delegations but has, nevertheless, simply made the wrong decision.  The clearest example is where a factor in a Statement of Principles has been identified as the basis of accepting a claim but there is nothing in the evidence to support the decision.   Decisions of this type should be reviewed under s 31(6) but only by the Senior Review Officer (DVA Executive Level 1 in NSW, Qld and Vic or an equivalent officer in SA, Tas and WA) or in National Office by an officer with an equivalent delegation.

Some decisions are not in 'error'

A decision is not in error or unlawful if another person looking at the decision would have simply arrived at a different conclusion.  The decision after all has to be one that satisfied the decision-maker at the time.

A decision discovered many years later to be inconsistent with the new law or a new interpretation of the law by the Courts is not an “error” that can be corrected by another person

In the past there were decision made on the basis of a Court interpretation of the meaning of allotted.  Because the Parliament has changed the law to define allotment in a particular way it does not mean that those early decisions are wrong, improper or illegal.

A similar situation arises in respect of qualifying service and decisions made concerning “theatre of war” provisions and “incurred danger”.  A decision is still correct if it was reasonable for a delegate to have made that decision on the information that was available.  It is not wrong because there is now a new policy on some matter that was decided in the past by a different approach.

Action to take when rendering a decision null and void

The first consideration in all matters where an error has been found is the power of the decision-maker to have made the decision.

If the decision-maker never had such a power or delegation to make that decision then the decision is rendered null and void and a decision remains to be made.

The improper exercise of a function, that is exercise without the authority, is called ultra vires, simply meaning beyond powers.  Any ultra vires decision is voided on discovery.

However sometimes there are matters where a decision-maker has exercised the full extent of his or her power and yet cannot go back and make a new decision.  This is called “functus officio”, simply meaning the officer's task is finished.

What is the difference?

The case of Leung v. Minister for Immigration (1997) 150 ALR 76 deals with the concept of functus officio and what to do about decisions that are invalid by law.

The term functus officio refers to the position of a decision-maker who has properly exercised the duties of the position and made a decision.  The decision-maker cannot go back and change that decision.  This is because the law says that once the decision-maker has completed the job and made a complete decision there remains nothing more for that person to do in regard to the claim.

This concept does not apply where the decision was at all times an invalid one.  A decision can be invalid because the decision-maker did not have the power or delegation to make the decision in the first place or that there is a wrong application of the law.  This also applies to a decision based on policy approaches where that policy has no basis in law or more recent law has overtaken the policy application.

Where a decision was made on an incorrect factual basis, it is void, and thus functus officio does not apply to deny the decision-maker the right to remake the decision.

Finkelstein J in Leung said:

"To ignore an invalid decision [ie, to treat it as if it does not exist] is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression 'functus officio' has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions."

Operation in a review situation

Should any Review Officer, conducting a s 31 review as an example, discover that the original decision was wrong in law then the decision is void.  A decision must then be made on the original claim that at law has remained undecided.  In the circumstances the delegation of the officer who is making the new, but now the primary decision, must be appropriate, that is the person must have the proper delegation and/or powers.

The same applies to Income Support Review Officers exercising a s 57 delegation.  For qualifying service cases and consequent grants of service pension the same rules apply.  If at some later date it is apparent that the veteran did not have the service claimed, or did not serve in the area claimed or at the times claimed, then the primary decision is a nullity.  That is there is no decision that has been made on the original claim.  A delegate must make a new decision with the appropriate authority and powers.

This may also arise in the context of a case before the Veterans' Review Board or the Administrative Appeals Tribunal.  A matter that is in front of either body is removed if the primary decision is void.  However, the question of whether that was a proper exercise of power and whether the matter has been properly removed remains a question for the Board or Tribunal to decide as a matter of jurisdiction.

Making the new decision

The delegation of the officer who is making the new primary decision must be appropriate to the mater to be decided and be within the powers of that delegation.

All the original appeal rights are open to the claimant if they still exist.  If there are new appeal provisions then those that apply at the time of the later decision are the ones that apply to the applicant.

The question of a basic eligibility is still a question that can properly be decided by the Board or the Tribunal as part of their consideration of jurisdiction.

Recovery action

In all cases of claims that are decided afresh and are decided such that there is no entitlement to allowance or pension then payment of further pension must be cancelled, not simply suspended.  Any money that has been paid out has been unlawful and is subject to normal recovery of debt provisions of the VEA.  However, where the payment of pension or allowance was not the result of the claimant's false or misleading information but rather from a Departmental failure such a a mistake of omission or commission then consideration for write-off or waiver is available to the Department.

Advice to the Repatriation Commission

All cases where a decision is to be made that a benefit in payment is to be cancelled because of an incorrect decision must be advised to the relevant State Director, the Deputy Commissioner and to the Branch Head Disability Compensation.  Advice from the Legal Services Group will be provided as necessary or required.

The Repatriation Commission will be advised in circumstances where there is a likelihood of adverse reaction and where the issue is an important mater of policy or law.

It is safe to always assume that a complaint will be made to the Minister about any action that cancels a previous entitlement or eligibility.  Careful minutes of every step of the process, letters sent and received and actions undertaken must be maintained for immediate reporting to National Office and/or for a brief to the Minister for Veterans' Affairs.

Previous advice

Previous assistance was given in a related area on the use of s 31 (6) powers.  This is different to the situation where a decision is discovered to be a null and void.

The Repatriation Commission is empowered under s 31 (6) to cancel, suspend or decrease a pension or attendance allowance having regard to:

•   a matter that affects the payment, or the rate of payment that was not before the Commission, Veterans' Review Board, or the Administrative Appeals Tribunal when the decision to grant the payment was made, or

•   the refusal or failure by a person to comply with a provision, or notice under s 5A or request under s.32(c) of the VEA, or

•   the special or intermediate rate pensions, if the veteran is working, or is capable of working, in excess of the prescribed hours.

The Commission has delegated its s 31 (6) powers to:

• Deputy Commissioners
• Division Head, Compensation & Support
• Branch Head, Disability Compensation, and
• Nominated officers in the States

Qualifying service and rescinding decisions

Departmental Instruction C14 of 1999 [14] published on 21 May 1999 deals with rescinding decisions concerning individuals who were previously accepted as having rendered qualifying service.

Where to get further information

Further information on

• the power to remake decisions; or
• whether a decision-maker is truly functus officio, or
• whether the original decision-maker operated ultra vires; or
• whether the original decision is null and void,

can be obtained from Carolyn Spiers in the Legal Services Group or John Douglas in the Disability Compensation Branch.

Questions on eligibility, qualifying service, operational service, peacekeeping service, warlike and non-warlike service should be addressed to John Douglas or to the Policy, Eligibility and Research Section in the first instance.

Questions on recovery action need to be addressed at the same time as any decision on eligibility is being made.  All officers involved in remaking a decision should check the proper procedures in your State.

WR Maxwell Branch Head Disability Compensation                November 1999

GJ Johannes Acting Branch Head Legal Services Group         November 1999

Advisory from Disability Compensation Branch

No 5/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

BOUGAINVILLE TRUCE AND PEACE MONITORING GROUPS

POSSIBLE EXPOSURE TO CHEMICALS

Introduction

Numerous members of the Bougainville Truce Monitoring Group and the Peace Monitoring Group have lodged claim forms for disability pension and treatment for potential illness arising from possible chemical exposure during TMG and PMG service. The forms state “Members deployed on OP BEL ISI have had the potential to be exposed to numerous chemicals”.

This advice provides paragraphs recommended for use where the claim does not refer to current medical problems. In such cases no investigation is required and no incapacity can be found.

Should any claim identify a diagnosable medical condition, this requires investigation and subsequent determination.

UPDATE ON SUPPORT MATERIAL

Defence has been asked to provide a nominal roll of those undertaking relevant peacekeeping service.

Defence has advised that a two-week roster system, mainly involving Reservist health professionals, has commenced operations on Bougainville. An environmental health officer is assessing the sites with the assistance of independent contractors.

Attached are the instruments determining non-warlike service for the two groups and a recent press release entitled “Bougainville: Health and Safety Concerns” by Minister for Foreign Affairs, the Honourable Alexander Downer.

W.R. Maxwell

Branch Head

Disability Compensation

22 February 1999

Dear X

THIS LETTER IS ABOUT YOUR DISABILITY PENSION CLAIM

DECISION

The claim for unspecified conditions has been refused - no incapacity found.

REASONS FOR DECISION

Your claim

On (date) your claim for potential conditions (unspecified) was received at the Department of Veterans' Affairs (DVA).  Since you are not currently affected by any such condition, no diagnosis is possible.

Service under the Veterans' Entitlements Act

Our records show that you have service from (date) to (date) with the Truce Monitoring Group (TMG) and/or Peace Monitoring Group (PMG) (select appropriate service) in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands. This constitutes peacekeeping service.

The Law

Under the Veterans' Entitlements Act 1986 (VEA) you are eligible for disability pension and treatment for illness and injury related to that service. The VEA states that a claim must be accepted, if there is a reasonable hypothesis connecting the claimed disability with peacekeeping service.

Reasons for Refusal

The evidence that is relevant to this claim has been considered.

On the claim form you stated that you "have had the potential to be exposed to numerous chemicals”. The Department of Defence has advised that an Occupational Health & Safety inspection report indicated widespread leaching of chemicals into the ground and groundwater from old drums and depots on Bougainville, particularly in Arawa and the copper mine. Department of Defence advice appears consistent with the claimed potential for exposure to chemicals, and the concern you may feel about the possible consequences of any such exposure is understandable.

However, an illness or injury must first be diagnosed before it can be accepted as connected to your service and treatment provided, and there must be some incapacity resulting from the illness or injury before disability pension can be granted. In the current circumstances, where none has yet been identified, it is not possible to investigate connection to service or incapacity. The claim must therefore fail.

Nonetheless, we have noted your concern and opened a personal file in your name. This contains your claim and ensures details of your relevant service and eligibility status are readily available. You may wish to provide a more specific account of your locations during peacekeeping service to be kept on your file for reference. We have also asked the Department of Defence to provide reports on the situation as more becomes known. These will be available to delegates determining any future claims.

RIGHT OF APPEAL

If you are not satisfied with any part of this decision you can ask the Veterans' Review Board (VRB) to review the case.  You have to do this in writing.  The time limit for lodging an application to the VRB is 12 months from when you are deemed to have received this advice.  To gain the maximum benefit of backdating any pension as a result of the review, you should lodge your application for review within 3 months from when you are deemed to have received the advice.  Appeals are explained in more detail in the Information Leaflet.

When an appeal is lodged, a report is compiled in which all documents used in the decision making process are copied and forwarded to you, the VRB, and your representative (if you have nominated one). After receipt of this report, if further document copies are required or you wish to view your files, an application should be made through Freedom of Information.

FREEDOM OF INFORMATION

You can apply to see documents on your Veterans' Affairs files. See the Information Leaflet for details.

Yours sincerely

Minister for Defence Industry, Science and Personnel

Veterans' Entitlements Act 1986

Determination of Non-warlike Service

1. I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), determine that service rendered as a member of the Truce Monitoring Group in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands during any period on or after 20 November 1997 is non-warlike service for the purposes of the Act.

Dated this 23rd day of December 1997

(signed)

BRONWYN BISHOP

Minister for Defence Industry, Science and Personnel

Minister for Defence Industry, Science and Personnel

Veterans' Entitlements Act 1986

Determination of Non-warlike Service

I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), amend the determination of non-warlike service made on 23 December 1997 by inserting after "20 November 1997" the words ''and before and including 30 April 1998".

Dated this 13th day of May 1998

BRONWYN BISHOP

Minister for Defence Industry, Science and Personnel

Minister for Defence Industry, Science and Personnel

Veterans' Entitlements Act 1986

Determination of Non-warlike Service

I, Bronwyn Bishop, Minister for Defence Industry, Science and Personnel, on behalf of the Minister for Defence, under subsection 5C(1) of the Veterans' Entitlements Act 1986 (the Act), determine that service rendered as a member of OPERATION BEL ISI II in support of the Peace Monitoring Group in the area comprising Bougainville and Buka Islands and the Papua New Guinea territorial waters surrounding those islands during any period on or after 1 May 1998 is non-warlike service for the purposes of the Act.

Dated this 13th day of May 1998

BRONWYN BISHOP

Minister for Defence Industry, Science and Personnel

MEDIA RELEASE

MINISTER FOR FOREIGN AFFAIRS

ALEXANDER DOWNER

22 January 1999

Bougainville: Health and Safety Concerns

I have received reports about chemicals and possible radiation sources left behind in the Panguna, Loloho and Arawa areas on Bougainville when Bougainville Copper Limited (BCL) abandoned its mining operation there in 1989. These may now be in a hazardous state.

I am concerned about the potential health risk that these materials might pose to people in Bougainville, including Australians and others in the province with the Peace Monitoring Group (PMG), as aid workers or in other capacities. I have raised those concerns directly at the highest level with BCL, which shares them.

Australian officials have been working closely and actively with the parties to the Bougainville peace process and consulting with BCL to determine the state of these materials. This is a difficult task because storage containers and instruments may have deteriorated or have been damaged over the past decade. In addition, due to security concerns, access to the Panguna mine site, where some of the materials may have been stored, is impossible at present. This makes it even harder to assess the possible risks involved.

As a strong supporter of the peace process and as Commander of the PMG, Australia takes very seriously its duty of care obligations to Australian and other personnel on Bougainville. We have therefore also informed the other countries participating in the PMG (Fiji, New Zealand and Vanuatu) about the possible hazards.

At the Government's request, the PMG has made strenuous efforts in the Arawa/Loloho area to isolate and contain chemical sites there and to minimise the risk to the PMG and others. The ADF has also tested the air, water and soil around the Arawa/Loloho area and undertaken a preliminary sweep for radioactivity. Both have shown no contamination, although the ADF is continuing to monitor the situation very closely.

This is, however, a short-term measure and does not cover the former Panguna mine site. The question of a longer-term cleanup now needs to be addressed quickly. This is a matter for the PNG Government, the Bougainville parties and BCL to discuss, as those most directly concerned. Australia stands ready to facilitate their efforts.

These problems underline how essential it is to continue down the path of peace in Bougainville and for all involved to work together. I warmly welcome the progress that has been made so far towards this goal. Australia is committed to continuing to assist the efforts of the PNG Government and Bougainvilleans to achieve this result.

For further information:

Geoff Leach (02) 6277 7500 (Ministerial)

Tony Melville (02) 6261 1555 (Departmental)

Advisory from Disability Compensation Branch

No 7/99

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice 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.

INABILITY TO OBTAIN APPROPRIATE CLINICAL MANAGEMENT

The Repatriation Medical Authority (RMA) issues Statements of Principles (SoPs) to take account of the requirements of the Veterans' Entitlements Act 1986.  In doing so the RMA SoPs address causation, which may be direct or indirect, including factors that may make a significant contribution to the progress of the disease its earlier onset. For an  aggravation such to be acceptable in the Veterans' Entitlements Act 1986 it must be a factor that it makes the condition not only worse but also permanently worse. The inability to obtain appropriate clinical management relates only to aggravation.

Causation, contribution and aggravation have been the subject a many decisions in the Tribunals and Courts and in the context of the Veterans' Entitlements Act 1986.  Some decisions have no general applicability because they reflects only a particular a particular set of circumstances. However there are others that bind other decision-makers by being precedent cases.  For example the Full Federal Court in Shelton says that diagnosis is a question decided on the balance.  This takes precedence over the earlier decision in Preston that decided the diagnosis question on the beyond reasonable doubt standard.

In the context of a Statement of Principles there are two ways that “aggravation” may create a liability for the Department of Veterans' Affairs.

What is aggravation?

Aggravation means simply that an external factor A, not related to the disease or injury in question condition B, reacts with condition B in such a way that condition B is made permanently worse.

The most common expression of this is contained in factors that refer to the “clinical worsening” of a disease or medical condition.  This seems to have been readily understood by all decision- makers.

The other expression is the “inability to obtain appropriate clinical management”.  This appears to have been commonly misunderstood by claims assessors and ex service organisation advocates and welfare officers alike.

Temporal relationship required

Both methods of aggravation require the disease or medical condition to be present before the military service that is claimed to have aggravated it.  This temporal relationship is essential.  This requires a decision that the condition was actually present at the time that some incident on service, or during a period of service, aggravated it.

This is not a situation where the precursor to a disease may be present on service but not the disease itself.  This is more likely to be a causation issue but sometimes has been used to claim that the precursor aggravated a condition that developed after service and that was not service related.  Where the disease occurs after the aggravator the temporal relationship is not present and aggravation is not appropriate for investigative purposes.

A temporal relationship must exist before service can be said to have aggravated the condition.

The existence of the medical condition

This is a matter for the decision-maker.  It is a question that is based on the evidence available including the statement of the claimant as to the presence or otherwise of particular symptoms.  It is from the whole of the available evidence that the question of diagnosis of the condition is settled.  The standard of proof to be applied to the question of diagnosis is “reasonable satisfaction” in all cases.  The authority for this is in the Federal Court decision of Repatriation Commission v Cooke (1998) 160 ALR at 20 - 22.

A medical opinion on the meaning of any symptoms that occurred before service or during service is required.  This is certainly required if the claimant puts a case that states that the condition occurred during his service but went unnoticed and untreated.

In answering the question of the existence of the condition at a particular time it will be important to have some medical opinion on the usual course of the condition.  It is also important to have opinion, especially from the treating specialist, on the particular course of the disease or condition in the patient who is the claimant.

Inability to obtain .....

The Full Federal Court in Brew v Repatriation Commission (10 September 1999) (see the judgement of Merkel J) enlarges on the meaning to be given to “inability” as the lack of the ability to get the treatment in both an objective and subjective sense.  Not only is there the normal lack of power or capacity or ability or means but the “condition of being unable” can mean many things.  Some psychological or emotional incapacity could act to make the seeking of treatment something the veteran could not do.  Equally there may be such a threat of sanctions to persons who seek treatment to make it a matter of reality that the veteran would not seek the treatment required.

The determinations of the facts concerning any claimed “inability to obtain” are a matter for the decision-maker.

...appropriate clinical management

“Clinical management “ is more than simply treatment.  It requires more than merely treating the symptoms.  It requires that some attention is paid to the management of the underlying disease and addressing the cause or suspected cause of the disease, injury or medical condition.

It also requires that there actually exist some prudent medical treatment for the disease, injury or condition.

There are a number of distinct requirements that need to be satisfied before it can be said that clinical management was inappropriate.

• Did military medical staff know the condition?

If it was not and could not reasonably have been expected to be then there is no case for “inappropriate” clinical management.

• Is it reasonable that the military medical staff could know of the condition on the basis of any symptoms that occurred at that time?

If it was not, and could not reasonably have been expected to be, then there is no case for “inappropriate clinical management”.

• Was any clinical management provided?

If some clinical management was provided then a second question needs to be asked.

• Was that clinical management appropriate for the disease or condition for the standards and knowledge of the time? And was the clinical management appropriate for the standards of service available for that particular service situation?

If the answers are affirmative then no claim for “inappropriate clinical management” arises.  The authority for this position is contained in the Federal Court decision of Repatriation Commission v Wellington V90 of 1999 Marshall J Melbourne 11 November 1999.

If no clinical management was provided then it may have been because the condition or disease was unknown to the military medical staff or it was felt that its clinical management was a lesser priority than other considerations or it was not present at that time.  In such a circumstance there may be an instance of “inappropriate clinical management”.

• Did an appropriate form of clinical management exist for the disease, injury or medical condition?

One of the questions for the decision maker to be satisfied about is whether there was any treatment actually available for the condition that is being claimed.  There are many genetic conditions for which there is no remedy and no treatment.  This may need to be the subject of a medical opinion or advice from an appropriate text or reference source.

If however it has been decided that the condition could reasonably have been expected to be known to the military medical staff and the standard treatments not provided then liability may arise if aggravation has occurred.

These are not the final questions.

Did aggravation occur?

Having answered the questions concerning the presence of the condition and the fact or not of treatment there is still a final question for any decision-maker to decide.

• Did the “aggravation” permanently worsen the disease or condition.

For aggravation to have contributed to the disease or condition it must have resulted in the permanent worsening of the disease or condition.

A temporary heightening of the symptoms with no worsening of the disease after the symptoms return to normal does not constitute an aggravation.

This question of worsening is one that requires medical advice or opinion.  If a decision-maker is to be satisfied then the contention should be supported by a personal case history of the claimant taken by the treating doctor or specialist.

Any decision made in this regard must have some medical opinion to support the contention.  There are some disease or conditions that cannot be made worse or aggravated despite the lack of treatment.  Infections cannot normally be aggravated as they run their course.  However the effect of malnutrition may be an exception.  There may be others so any contention in this regard needs medical advice.

Summary

Appropriate clinical management is a term which, within the VEA and veterans' jurisdictions, can only be considered in terms of whether the inability to obtain, the failure to seek or the failure to provide treatment led to the aggravation of a disease, injury or medical condition.  The aggravation must result in the disease, injury or medical condition worsening and that effect must be permanent.

“Inability to obtain appropriate clinical management” can apply to almost any disease, injury or medical condition that is the subject of a Statement of Principles.  The provision of experimental treatment or clinical management, which might be available in the USA or a private Sydney hospital, to someone in a war zone is not “appropriate”.  In each circumstance the question of whether a particular clinical management approach was appropriate is dependent on the circumstances of the condition under consideration and the medical knowledge and skill available to an ordinary Australian citizen.

Comments on aggravation in decisions

Various Tribunals and Courts have commented on the meaning of aggravation as it relates to the duty of care of the Defence Forces.

The Defence service authorities are under a duty to provide medical treatment for service personnel.  If they fail to do so and as a result of that failure, the course of the disease progresses faster or the condition becomes permanently worsened then the disease or condition has been made worse by service.  In such cases the veteran or member of the ADF would be entitled to have the condition accepted as related to service.

John R Douglas

Director

Policy Eligibility and Research

Disability Compensation Branch

   December 1999

Advisory from Disability Compensation Branch

No 8/99

[4] [18]

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