EXPLANATORY STATEMENT
STATEMENT OF PRINCIPLES CONCERNING
DIABETES MELLITUS
(BALANCE OF PROBABILITIES) (NO. 49 OF 2020)
VETERANS' ENTITLEMENTS ACT 1986
MILITARY REHABILITATION AND COMPENSATION ACT 2004
1. This is the Explanatory Statement to the Statement of Principles concerning diabetes mellitus (Balance of Probabilities) (No. 49 of 2020).
Background
2. The Repatriation Medical Authority (the Authority), under subsection 196B(8) of the Veterans' Entitlements Act 1986 (the VEA), repeals Instrument No. 90 of 2011 (Federal Register of Legislation No. F2011L01451) determined under subsections 196B(3) and 196B(8) of the VEA concerning diabetes mellitus.
3. The Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that diabetes mellitus and death from diabetes mellitus can be related to particular kinds of service. The Authority has therefore determined pursuant to subsection 196B(3) of the VEA a Statement of Principles concerning diabetes mellitus (Balance of Probabilities) (No. 49 of 2020). This Instrument will in effect replace the repealed Statement of Principles.
Purpose and Operation
4. The Statement of Principles will be applied in determining claims under the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA).
5. The Statement of Principles sets out the factors that must exist, and which of those factors must be related to the following kinds of service rendered by a person:
eligible war service (other than operational service) under the VEA;
defence service (other than hazardous service and British nuclear test defence service) under the VEA;
peacetime service under the MRCA,
before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of that service. The Statement of Principles has been determined for the purposes of both the VEA and the MRCA.
6. This Instrument results from an investigation notified by the Authority in the Government Notices Gazette of 6 November 2018 concerning diabetes mellitus in accordance with section 196G of the VEA. The investigation involved an examination of the sound medical-scientific evidence now available to the Authority, including the sound medical-scientific evidence it has previously considered.
7. The contents of this Instrument are in similar terms as the repealed Instrument. Comparing this Instrument and the repealed Instrument, the differences include:
· adopting the latest revised Instrument format, which commenced in 2015;
· specifying a day of commencement for the Instrument in section 2;
· revising the definition of 'diabetes mellitus' in subsection 7(2);
· revising the reference to 'ICD-10-AM code' in subsection 7(4);
· revising the factors in subsections 9(1) and 9(9) concerning having an endocrine disorder;
· revising the factors in subsections 9(2) and 9(10) concerning having a solid organ transplant or bone marrow transplant;
· revising the factors in subsections 9(3) and 9(11) concerning having glucocorticoid therapy;
· revising the factors in subsections 9(4) and 9(12) concerning treatment with a drug from the Specified List 1 of drugs;
· revising the factors in subsections 9(5) and 9(13) concerning treatment with a drug from the antidepressant or antipsychotic classes of drugs;
· revising the factor in paragraph 9(6)(a) concerning surgery to the pancreas, for clinical onset and for type 1 diabetes mellitus only;
· revising the factor in paragraph 9(6)(b) concerning having a specified pathological condition involving the pancreas, for clinical onset and for type 1 diabetes mellitus only;
· revising the factor in paragraph 9(6)(c) concerning haemolytic uraemic syndrome, for clinical onset and for type 1 diabetes mellitus only;
· revising the factor in paragraph 9(6)(d) concerning ingesting N-3-pyridyl methyl-N'-p-nitrophenyl urea (Vacor), for clinical onset and for type 1 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(a) and 9(21)(a) concerning smoking of tobacco products, for type 2 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(b) and 9(21)(b) concerning exposure to second-hand smoke, for type 2 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(c) and 9(21)(c) concerning being overweight or obese, for type 2 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(d) and 9(21)(d) concerning inability to undertake moderate physical activity, for type 2 diabetes mellitus only;
· new factors in paragraphs 9(7)(f) and 9(21)(f) concerning non-alcoholic steatohepatitis, for type 2 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(g) and 9(21)(g) concerning infection with human immunodeficiency virus, for type 2 diabetes mellitus only;
· revising the factors in paragraphs 9(7)(h) and 9(21)(h) concerning infection with hepatitis C virus, for type 2 diabetes mellitus only;
· new factor in paragraph 9(7)(i) concerning depressive disorder, for clinical onset and for type 2 diabetes mellitus only;
· new factor in paragraph 9(7)(j) concerning bipolar disorder, for clinical onset and for type 2 diabetes mellitus only;
· new factor in paragraph 9(7)(k) concerning schizophrenia, for clinical onset and for type 2 diabetes mellitus only;
· revising the factor in paragraph 9(7)(n) and 9(21)(k) concerning being exposed to arsenic, for type 2 diabetes mellitus only;
· revising the factors in subsections 9(8) and 9(22) concerning pregnancy for gestational diabetes mellitus and type 2 diabetes mellitus only;
· revising the factor in subsection 9(17) concerning ingesting N-3-pyridyl methyl-N'-p-nitrophenyl urea (Vacor), for clinical worsening;
· new factor in subsection 9(18) concerning depressive disorder, for clinical worsening;
· new factor in subsection 9(19) concerning bipolar disorder, for clinical worsening;
· new factor in subsection 9(20) concerning schizophrenia, for clinical worsening;
· deleting the factors concerning having depressive disorder, bipolar disorder or schizophrenia, as these disorders are now covered separately by the factors in paragraph 9(7)(i) and subsection 9(18) concerning depressive disorder, paragraph 9(7)(j) and subsection 9(19) concerning bipolar disorder, and paragraph 9(7)(k) and subsection 9(20) concerning schizophrenia;
· deleting the factors concerning inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD);
· new definitions of 'being overweight or obese', 'MRCA', 'pack-year of tobacco products', 'Specified List 1 of drugs', 'Specified List 2 of drugs', 'specified list of endocrine disorders' and 'VEA' in Schedule 1 - Dictionary;
· revising the definitions of 'being exposed to second-hand smoke', 'equivalent glucocorticoid therapy', 'glucocorticoid therapy as specified' by the inclusion of a note and 'relevant service' by the inclusion of a note, in Schedule 1 - Dictionary; and
· deleting the definitions of 'a drug from specified list 2', 'a drug or a drug from a class of drugs from specified list 1', 'a drug or a drug from a class of drugs from specified list 3', 'a specified endocrine disorder', 'being overweight', 'inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD)' and 'pack-years of cigarettes, or the equivalent thereof in other tobacco products'.
Consultation
8. Prior to determining this Instrument, the Authority advertised its intention to undertake an investigation in relation to diabetes mellitus in the Government Notices Gazette of 6 November 2018, and circulated a copy of the notice of intention to investigate to a wide range of organisations representing veterans, service personnel and their dependants. The Authority invited submissions from the Repatriation Commission, the Military Rehabilitation and Compensation Commission, organisations and persons referred to in section 196E of the VEA, and any person having expertise in the field. One submission was received for consideration by the Authority in relation to the investigation.
9. On 24 February 2020, the Authority wrote to organisations representing veterans, service personnel and their dependants regarding the proposed Instrument and the medical-scientific material considered by the Authority. This letter emphasised the deletion of the factors relating to inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD). The Authority provided an opportunity to the organisations to make representations in relation to the proposed Instrument prior to its determination. No submissions were received for consideration by the Authority. Non-substantial changes were made to the proposed Instrument following this consultation process.
Human Rights
10. This instrument is compatible with the Human Rights and Freedoms recognised or declared in the International Instruments listed in Section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights follows.
Finalisation of Investigation
11. The determining of this Instrument finalises the investigation in relation to diabetes mellitus as advertised in the Government Notices Gazette of 6 November 2018.
References
12. A list of references relating to the above condition is available on the Authority’s website at: www.rma.gov.au.
13. Any other document referred to in this Instrument is available on request to the Authority using the following details:
Email: info@rma.gov.au
Post: The Registrar
Repatriation Medical Authority
GPO Box 1014
BRISBANE QLD 4001
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Instrument No.: Statement of Principles No. 49 of 2020
Kind of Injury, Disease or Death: Diabetes mellitus
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
1. This Legislative Instrument is determined pursuant to subsection 196B(3) of the Veterans' Entitlements Act 1986 (the VEA) for the purposes of the VEA and the Military Rehabilitation and Compensation Act 2004 (the MRCA). Part XIA of the VEA requires the determination of these instruments outlining the factors connecting particular kinds of injury, disease or death with service such being determined solely on the available sound medical-scientific evidence.
2. This Legislative Instrument:-
§ facilitates claimants in making, and the Repatriation Commission in assessing, claims under the VEA and the MRCA respectively, by specifying the circumstances in which medical treatment and compensation can be extended to eligible persons who have diabetes mellitus;
§ facilitates the review of such decisions by the Veterans' Review Board and the Administrative Appeals Tribunal;
§ outlines the factors which the current sound medical-scientific evidence indicates must exist before it can be said that, on the balance of probabilities, diabetes mellitus is connected with the circumstances of eligible service rendered by a person, as set out in clause 5 of the Explanatory Statement;
§ replaces Instrument No. 90 of 2011 and
§ reflects developments in the available sound medical-scientific evidence concerning diabetes mellitus which have occurred since that earlier instrument was determined.
3. The Instrument is assessed as being a technical instrument which improves the medico-scientific quality of outcomes under the VEA and the MRCA.
Human Rights Implications
4. This Legislative Instrument does not derogate from any human rights. It promotes the human rights of veterans, current and former Defence Force members as well as other persons such as their dependents, including:
§ the right to social security (Art 9, International Covenant on Economic, Social and Cultural Rights; Art 26, Convention on the Rights of the Child and Art 28, Convention on the Rights of Persons with Disabilities) by helping to ensure that the qualifying conditions for the benefit are 'reasonable, proportionate and transparent'[1];
§ the right to an adequate standard of living (Art 11, ICSECR; Art 27, CRC and Art 28, CRPD) by facilitating the assessment and determination of social security benefits;
§ the right to the enjoyment of the highest attainable standard of physical and mental health (Art 12, ICSECR and Art 25, CRPD), by facilitating the assessment and determination of compensation and benefits in relation to the treatment and rehabilitation of veterans and Defence Force members;
§ the rights of persons with disabilities by facilitating the determination of claims relating to treatment and rehabilitation (Art 26, CRPD); and
§ ensuring that those rights "will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Art 2, ICESCR).
Conclusion
This Legislative Instrument is compatible with human rights as it does not derogate from and promotes a number of human rights.
Repatriation Medical Authority