APPENDIX 5

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Agreed Process for assessing evidence and making Statements of Principles under the Veterans’ Entitlements Act 1986

  1. Statements of Principles (SOPs) are made for the purpose of providing the principles for determining whether a particular kind of injury, disease or death suffered by a veteran is, or might be, related to the veteran’s service. If the answer is yes then compensation may be payable under the Veteran Entitlement Act 1986 (Cth) (the Act) or the Military Rehabilitation and Compensation Act 2004 (Cth)
  2. A SOP is made by the Repatriation Medical Authority (RMA). The Specialist Medical Review Council (SMRC) has the function of reviewing SOPs made by the RMA.
  3. A SOP is determined by the RMA after an investigation. In undertaking the investigation the RMA may rely only on the sound medical-scientific evidence (SMSE) that has been submitted to it or that it has obtained on its own initiative. SMSE is defined in s 5AB(2) of the Act to mean:
    1. the information:
      1. is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation medical authority, subjected to a peer review process, or
      2. in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
    2. in the case of information about how that kind of injury, disease or death may be caused meets the applicable criteria for assessing causation currently applied in the field of epidemiology
  4. The RMA is required to consider and evaluate all of the SMSE made available to it. Likewise, the SMRC must conduct its review of a SOP made by the RMA on the basis of the SMSE that was before the RMA.
  5. SOPs are required to be applied by decision-makers in claims for compensation under both of the Acts described above, which apply two different standards of proof. As is explained in paragraph 6 below, each standard of proof depends broadly on whether a claim is based on operational service (the reasonable hypothesis test) or non-operational service (the balance of probability test). Consequently, the two types of SOPs are known as a reasonable hypothesis SOP and a balance of probability SOP.
  6. After the overall evaluation of the SMSE carried out by the RMA for a reasonable hypothesis SOP (and, on review, the SMRC) a view must be formed by the RMA as to whether there is SMSE that indicates the existence of a reasonable hypothesis that a particular kind of injury, disease or death can be related to a veteran’s operational service. A balance of probability SOP is based on a view, after the overall evaluation of the SMSE by the RMA (and, on review, the SMRC) that it is more probable than not that a particular kind of injury, disease or death can be related to a veteran’s non-operational service.
  7. On occasions one or two pieces of particular evidence contained in the pool of SMSE might support the existence of a reasonable hypothesis, and therefore support the making of a reasonable hypothesis SOP or the inclusion of a particular factor in a reasonable hypothesis SOP. But, there may also be a significant body of SMSE of a superior quality that is against the hypothesis and therefore against an indication that a particular kind of injury, disease or death can be related to the veteran’s service. In such a case the RMA (or the SMRC) must form a view based on its evaluation of the entirety of the SMSE as to whether it indicates the requisite relationship. A piece of information on its own might tend to indicate such a relationship. But when placed in context with other information which the RMA (or the SMRC) is entitled to consider, it may not bear the required indicative force.
  8. In determining what factors as a minimum must exist for a reasonable hypothesis SOP to be made or whether a particular factor is to be included in a reasonable hypothesis SOP, the RMA is not bound to accept the opinion which most favors compensation. Rather, it is open to the RMA to form the view that there is some, albeit insufficient, evidence in the pool of SMSE which is supportive of the existence of a reasonable hypothesis. In that situation there is no relevant distinction in relation to the ultimate outcome between a view formed by the RMA that there is insufficient SMSE to support the existence of a reasonable hypothesis and a view that there is no SMSE to support the existence of such a hypothesis. These conclusions can only be arrived at after the RMA, or on review the SMRC, has conducted an overall evaluation of the entire pool of SMSE before it. In either case the RMA must decline to make a SOP (or include a particular factor).
  9. The issues discussed in paragraphs 7 and 8 above in relation to a reasonable hypothesis SOP will not arise in a balance of probabilities SOP as, in the latter case, the RMA (or the SMRC) is required to form a view as to whether on the SMSE before it, it is more probable than not that a particular kind of injury, disease or death can be related to non-operational service.
  10. When the RMA has determined to make a SOP it has a discretion as to the factors that as a minimum must exist and which must be related to a veteran’s service. In many cases the matters under investigation by the RMA, or on review by the SMRC, may be the subject of considerable controversy. The sources of such controversy may be matters such as:
  1. how different studies within the pool of SMSE should be interpreted;
  2. the relative strength of results obtained from different studies in the pool of SMSE;
  3. whether, and to what extent, particular studies in the pool of SMSE should be regarded as undermining the weight to be attached to other studies in the pool.

Any such controversy is to be resolved by the application of the criteria discussed above.

 

 

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Last updated 22-Jul-2016