Statement of Principles concerning motor neurone disease (Balance of Probabilities) (No. 112 of 2021)

Definitions and scope. The instrument defines the relevant disease for the SOP in subsection 7(2). MND, for the purposes of this SOP, means a progressive neurodegenerative disease with either (a) the presence of upper and lower motor neurone dysfunction in at least one body region, or (b) the presence of lower motor neurone dysfunction in at least two body regions; and the absence of other disease processes that explain the motor neurone dysfunction (s7(2)). The SOP notes that MND attracts ICD‑10‑AM code G12.2 but emphasises that the meaning to be applied is the definition in subsection 7(2) (s7(3)). The instrument also defines death from MND to include death from a terminal event or condition that was contributed to by the person's MND (s7(5)), with “terminal event” enumerated in the Schedule to include pneumonia, respiratory failure, cardiac arrest, circulatory failure, or cessation of brain function.

Causation test. The governing evidential standard is the balance of probabilities, and the RMA states its current view on the available medical‑scientific evidence that it is more probable than not that MND and death from MND can be related to relevant service (s8). The SOP operationalises that view through a discrete list of “factors that must exist” (s9). At least one of those factors must be present before a finding of connection with service can be made (s9(1)). The listed factors are: smoking history reaching 20 pack-years prior to clinical onset (s9(1)); smoking history reaching 20 pack-years prior to clinical worsening (s9(2)); inability to obtain appropriate clinical management for MND (s9(3)). The Schedule supplies the definition and calculation method for “one pack-year” and gives numeric conversion for different tobacco forms.

Temporal and qualifying rules. Section 10 requires that any factor in s9 be related to the person's relevant service (s10(1)). Subsection 10(2) places a temporal and scope limitation on s9(2) and s9(3): those two factors apply only to material contribution to, or aggravation of, MND where the person's MND was “suffered or contracted before or during (but did not arise out of) the person's relevant service.” The instrument therefore distinguishes between disease that arose out of service (where the mechanics may be different) and disease that pre‑existed or was contracted prior to service but was then materially contributed to or aggravated by service.

Cross‑SOP reference. Section 11 addresses overlap with other SOPs. If a factor in this SOP refers to an injury or disease covered by another SOP made under the same statutory power, the other SOP’s factors apply according to its terms as in force from time to time (s11). This creates a networked application: where an identified factor points to another disease covered elsewhere, practitioners must apply that other SOP.

Application and authority. The SOP applies to claims to which s120B of the VEA or s339 of the MRCA applies (s5). The instrument is made under the RMA’s statutory authority in s196B(3) of the VEA (s3) and replaces the earlier SOP No. 68 of 2013 (s4).

Operational definitions. The Schedule includes practical definitions important to application, including “one pack‑year” (with a worked example and a conversion for grams of pipe tobacco, cigars, and mixed tobacco types), “relevant service” (listing eligible war service, defence service, and peacetime service under the respective Acts), and “terminal event” (listing particular causes of death) (Schedule).

Claimants under VEA and MRCA. The instrument applies expressly to claims under section 120B of the VEA and section 339 of the MRCA (s5). Therefore the primary affected group is persons lodging those statutory claims: veterans and members of the Forces who have rendered “relevant service” as defined in the Schedule. The Schedule defines “relevant service” to include 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, and peacetime service under the MRCA. Individuals who seek a finding that MND or death from MND is connected to that service will be directly affected.

Medical and administrative decision‑makers. The RMA’s SOP will be used by decision‑makers and assessors who determine causal connection for statutory entitlements. The instrument states the RMA’s view that, on the balance of probabilities and on the sound medical‑scientific evidence available, MND and death from MND can be related to relevant service (s8). Those decision‑makers must apply the factors in s9 and the relationship requirement in s10 when resolving claims under the cited statutory sections. The SOP therefore affects medical panels, departmental decision‑makers, and any tribunal or reviewer who is evaluating causation within the statutory framework that references these SOPs.

Clinicians and records custodians. The listed factors rely on clinical and other evidence: smoking history measured in pack‑years (Schedule), clinical onset and clinical worsening dates for MND, and evidence about access to appropriate clinical management. Clinicians preparing reports, and custodians of medical and service records, will be affected because their records and reports supply the facts decision‑makers must test against the SOP criteria (s9; Schedule). The Schedule’s precise conversion and calculation rules for pack‑years mean that practitioners will need to collect sufficient detail about quantity and duration of tobacco use.

Dependants and estates. For claims that involve death from MND, the SOP’s inclusion of death contributed to by MND (including specific terminal events listed in the Schedule) affects dependants, survivors and estates who may be pursuing entitlements on account of a deceased person’s relevant service and cause of death (s7(5); Schedule). Evidence as to terminal events such as pneumonia and respiratory failure is directly relevant.

Persons with pre‑existing MND. Section 10(2) creates a specific interaction for persons whose MND was suffered or contracted before or during relevant service but did not arise out of it. For such persons, subsections 9(2) and 9(3) apply only to claims of material contribution or aggravation by service. That means individuals with pre‑existing or earlier contracted MND will need to establish different factual elements compared with someone whose disease arose out of service. The SOP therefore affects the evidential strategy for those categories of claimant.

Organisations and insurers. Although the SOP does not set administrative penalties or insurances, organisations administering entitlements, insurers and those who advise claimants will be affected because the SOP changes the legal criteria on which entitlement decisions are rooted (s5, s8, s9, s10).

Decision framework duties. The SOP imposes no general statutory duties on claimants in the language of obligations; rather, it prescribes evidentiary preconditions that must be met before decision‑makers can find that MND or death from MND is connected with relevant service (s9; s10). Decision‑makers are obliged to apply the SOP where a claim falls under the stated statutory provisions (s5). The RMA expresses its authoritative medical‑scientific view that MND and death from MND can be related to relevant service, and the SOP is the instrument through which that view is operationalised in claim assessments (s8). Practitioners therefore have a duty to identify and prove at least one of the enumerated factors and to demonstrate its relationship to service.

Claimant evidentiary obligations. To succeed, a claimant must demonstrate, on the balance of probabilities, that at least one of the section 9 factors exists (s9(1)), and that the factor is related to the person’s relevant service (s10(1)). The Schedule defines “one pack‑year” and explains the calculation method, including a worked example and a gram conversion for non‑cigarette tobacco products; a claimant relying on s9(1) or s9(2) must therefore provide sufficient evidence of smoking quantity and duration to reach the 20 pack‑year threshold using that Schedule formula. For claims involving death from MND, a claimant or representative must adduce evidence that the death was from a terminal event or condition contributed to by MND, and the Schedule lists specific terminal events (s7(5); Schedule).

Rights to have the SOP applied. The SOP itself confers no direct entitlement; rather, it supplies the medical causation criteria that must be applied in statutory claims under sections 120B VEA or 339 MRCA (s5). The SOP's presence means that claimants have a right to have decision‑makers consider these listed factors and the RMA’s stated medical position (s8) when assessing connection with service.

Interaction with other SOPs and the right to cross‑apply. If a factor in this SOP refers to an injury or disease covered by another SOP, the other SOP applies according to its terms as in force from time to time (s11). That means a claimant or decision‑maker has the right to invoke the other SOP’s factors when the factor in s9 points to an injury or disease covered elsewhere.

Temporal limits affecting rights. Section 10(2) narrows the applicability of s9(2) and s9(3) to material contribution or aggravation where MND was suffered or contracted before or during, but did not arise out of, the person's relevant service. Practically, that places a temporal limitation on when certain factors can operate to establish connection with service; claimants must show the disease pre‑dated, or was contracted during, service without arising out of it for those factors to be engaged.

No penalties or enforcement duties within the SOP. The instrument does not create enforcement powers or penalties against individuals. It functions as a medical‑evidentiary instrument to be applied by decision‑makers under the referenced statutory provisions (s3; s5). Any duties to provide documentation, medical evidence or to cooperate with claims handling processes will arise from the underlying Acts and administrative practice rather than from this SOP alone.

No penalty regime in the instrument. The Statement of Principles does not include provisions that create penalties, fines, criminal offences or civil sanctions. The instrument is a medical causation statement made under subsection 196B(3) of the VEA and its text contains no enforcement or penalty clauses (s3). It is a technical evidentiary tool for determining whether, on the balance of probabilities, motor neurone disease or death from motor neurone disease can be related to relevant service (s8).

Administrative enforcement via decision‑makers. The SOP’s practical enforcement is administrative: decision‑makers responsible for determining claims under section 120B of the VEA or section 339 of the MRCA must apply the SOP’s factors when assessing causation (s5, s9, s10). That effect is not a penal sanction but an evidentiary test. The instrument itself does not specify which decision‑maker or tribunal does what, nor does it set procedural or sanctioning powers; those matters reside in the VEA and MRCA and their administrative frameworks which are not reproduced in this SOP.

No express compliance mechanisms. The SOP does not specify compliance mechanisms such as notices, inspections, or compulsory information production. Evidence gathering and procedural compliance obligations, if any, must be sought in the underlying statutes and administrative practice rather than the SOP text. Practitioners should therefore look to the VEA, MRCA and departmental practice for the processes used to implement the SOP.

Implications for appeals and reviews. The instrument does not itself set appeal rights, review mechanisms, or judicial review parameters. It is an input into statutory decision‑making; any enforcement or challenge to a decision that applies the SOP will proceed under the review and appeal provisions of the VEA or MRCA and applicable administrative law, none of which are set out in this SOP. The SOP does state that it is based on the RMA’s view of “sound medical‑scientific evidence” (s8), which may be a point of dispute in reviews or appeals, but the SOP does not prescribe how such disputes are to be resolved.

No sanctions for inaccurate statements in claims within the SOP. The instrument does not specify administrative or criminal consequences for false statements by claimants or witnesses. Any such consequences would need to be grounded in the underlying statutes or general law rather than in this SOP text.

Source statutes. The SOP is made under subsection 196B(3) of the VEA (s3) and applies to claims under section 120B of the VEA and section 339 of the MRCA (s5). Consequently, its legal role is to supply disease‑specific causation criteria for the statutory provisions that require an assessment of whether an injury or disease is connected with relevant service. The SOP does not itself alter the rights or procedures set out in the VEA or MRCA; rather, it is a medical‑scientific instrument used within the decision‑making frameworks those Acts establish.

Relationship to other Statements of Principles. Section 11 provides a mechanism for interaction with other SOPs. If a factor in this SOP refers to an injury or disease that is covered by another SOP made under subsection 196B(3) of the VEA, then the factors in that other SOP govern “in accordance with the terms of that Statement of Principles as in force from time to time” (s11). This creates a coordinated scheme where disease‑specific instruments cross‑reference each other and the most current terms of a referenced SOP apply. Where overlap exists, practitioners must identify and apply the terms of the relevant SOPs in concert.

ICD‑10‑AM code reference. The instrument notes that while MND attracts ICD‑10‑AM code G12.2, the controlling definition for the SOP is the textual definition in subsection 7(2) (s7(3)). The SOP also specifies that references to ICD‑10‑AM codes relate to the specific edition cited,the International Statistical Classification of Diseases and Related Health Problems, Tenth Revision, Australian Modification, Tenth Edition, effective 1 July 2017 (s7(4)). Therefore, the instrument interacts with medical classification systems but prioritises its own definition.

Interaction with administrative practice. The SOP is a technical medical instrument; its application is embedded in administrative decision‑making under the VEA and MRCA. The SOP does not specify administrative procedures, evidentiary thresholds beyond the stated factors, or time limits. Practitioners must consult the underlying Acts and administrative guidance for the full procedural context in which this SOP operates.

Overlap with general law. The instrument does not purport to displace general law principles outside the VEA and MRCA schemes. For example, the SOP does not address tort liability, workers’ compensation or private insurance regimes. Where those other legal domains consider causation, this SOP is not binding unless incorporated by reference in a statute or administrative process that governs the relevant claim. The SOP expressly controls only within the scope of the VEA and MRCA claims to which it applies (s5).

Repeal and continuity. The SOP repeals the prior RMA Statement of Principles concerning MND No. 68 of 2013 (s4). That repeal alters the body of RMA-issued SOPs that decision‑makers apply. Section 11’s cross-reference language ensures that other SOPs remain applicable where factors intersect, subject to their current terms.

Instrument details and timing. The instrument is titled the Statement of Principles concerning motor neurone disease (Balance of Probabilities) (No. 112 of 2021) and is dated 26 November 2021 (heading material). It commences on 20 December 2021 (s2). The instrument records the RMA’s Common Seal and the Chairperson’s name in the attestation block. The SOP is made under the statutory authority in subsection 196B(3) of the VEA (s3).

Repeal of prior SOP. The instrument explicitly repeals the Statement of Principles concerning motor neurone disease No. 68 of 2013 (Federal Register of Legislation No. F2013L01656) that had been made under the same statutory power (s4). The effect is that, from the commencement date, the 2013 SOP is no longer in force and its terms are replaced by this instrument’s terms. The text does not list any other amendments or transitional provisions.

No further amendments recorded in the text. The instrument itself contains no schedule of amendments, no savings or transitional rules beyond the repeal clause, and no express review timetable or amendment mechanism. Any future amendment would likely require a further instrument made under the relevant statutory power, but the SOP does not state the process or frequency for review. Practitioners should therefore note that this instrument is the operative RMA position as at its commencement date, and that any subsequent changes would only be visible through later instruments.

Date and serial numbering. The instrument carries a serial identification as No. 112 of 2021. The instrument also incorporates an edition reference for ICD‑10‑AM cited in s7(4), which may have implications if future editions are released; the SOP ties code references to the particular edition effective 1 July 2017. Any future amendment that updated code references would need to be made by a subsequent instrument.

Interaction with other documents. Section 11 contemplates that other SOPs may be “in force from time to time,” implicitly recognising that SOPs are subject to revision. However, this instrument’s text contains no list of those other SOPs or an amendment log. The only documented textual change within this instrument is the repeal of the prior 2013 SOP (s4).

No cases or adjudications are recorded within the instrument. The Statement of Principles text contains no litigation history, citations to appellate or tribunal decisions, nor references to judicial review outcomes. It sets out the RMA’s medical‑scientific view and the factors to be applied when assessing causation, but it does not summarise or record any case law applying this SOP.

Implications of absence of litigation record. Because the SOP does not include litigation history or examples of decisions that applied it, practitioners cannot rely on this instrument alone to understand how courts or tribunals have interpreted its terms. The SOP is an authoritative medical statement for decision‑making under the VEA and MRCA, but the instrument itself does not report any precedential treatment or contested applications. Where litigation or tribunal decisions exist that interpret or apply this SOP, those will be found outside the instrument text in case reports, tribunal determinations and administrative decisions.

Potentially litigable features suggested by the text. The SOP includes features that could give rise to litigation points, although the instrument itself does not record any such disputes. Examples identifiable within the text include: the interpretation and proof of a 20 pack‑year smoking history using the Schedule’s conversion rules; the evidentiary meaning of “inability to obtain appropriate clinical management” in s9(3); the temporal application under s10(2) where disease was suffered or contracted before or during service but did not arise out of service; and the interplay with other SOPs under s11. Any legal controversies on those points would arise in claims adjudicated under the VEA and MRCA frameworks, but the instrument does not report whether such controversies have been litigated.

No appeal or review record in the instrument. The SOP does not set out appeal routes, tribunal practice, or examples of how decision‑makers have applied the SOP in contested proceedings. Practitioners seeking to understand litigation exposure, precedent, or how strictly the RMA’s stated medical view is treated by courts and tribunals must therefore consult external case law and tribunal decisions, as those materials are not contained in this SOP.

Threshold and timing traps. The SOP requires at least one of the enumerated factors to exist before a finding of connection can be made (s9(1)). The two smoking‑related factors both use a 20 pack‑year threshold but are tied to different temporal events: one to clinical onset and one to clinical worsening (s9(1)-(2)). Practitioners must be precise in establishing whether a claimant’s smoking history reached 20 pack‑years before the relevant clinical onset date or before the clinical worsening date. The Schedule supplies the pack‑year calculation method and a conversion to grams for alternate tobacco forms, but failure to collect sufficiently precise smoking history or to apply the Schedule’s conversion correctly can defeat a claimant’s reliance on those factors.

Ambiguity of “inability to obtain appropriate clinical management.” Section 9(3) lists “inability to obtain appropriate clinical management for motor neurone disease” as an alternative factor. The instrument does not define the phrase “appropriate clinical management” nor does it detail what evidence suffices to establish “inability to obtain” it. The lack of definition creates an evidentiary risk: decision‑makers will need to determine what constitutes appropriate management, whether the inability was caused or materially contributed to by service, and what standards apply. Practitioners should anticipate contested interpretation of these terms and ensure documentary evidence on attempts to obtain care, availability of services, referral timelines, and barriers.

Temporal application under s10(2). Subsection 10(2) limits the application of s9(2) and s9(3) to material contribution or aggravation where the MND was suffered or contracted before or during relevant service but did not arise out of it. This distinction means that if MND arose out of the relevant service, s9(2) and s9(3) are not the applicable avenues under this SOP for material contribution or aggravation. Mischaracterising the temporal relationship between disease onset and service can therefore lead to misapplication of the SOP’s factors.

ICD‑10‑AM code not determinative. The SOP notes that although MND attracts ICD‑10‑AM code G12.2, the definition of MND for this SOP is the textual definition in subsection 7(2) (s7(3)). Reliance on ICD coding alone is insufficient. Practitioners must ensure clinical evidence establishes the presence of upper and lower motor neurone dysfunction as required by the SOP’s definition and that alternative disease processes are excluded.

Cross‑SOP referrals. Section 11 provides that if a factor refers to an injury or disease covered by another SOP, that other SOP’s factors apply. This can be a source of complexity where multiple SOPs interact. Practitioners should identify whether any factor invokes another SOP and then apply the current terms of that SOP. Failure to do so can result in incomplete or incorrect legal analysis.

Proof of death contribution. For death claims, the SOP includes death from a terminal event or condition contributed to by MND (s7(5)) and the Schedule lists specific terminal events. Claimants must show not only that the terminal event occurred but that MND contributed. Evidence establishing contribution between MND and the terminal event will be necessary; death certificates alone may be insufficient without supporting clinical material.

Relevance of “relevant service” categories. The Schedule’s definition of “relevant service” specifies service categories and exclusions. Practitioners must confirm that the claimant’s service fits one of those categories; otherwise the SOP does not apply to the claim. Mistakenly applying the SOP to service types excluded in the Schedule may lead to administrative errors.

No procedural or evidentiary rules provided. The SOP sets out substantive factors but contains no procedural rules for evidence collection, burden allocation beyond balance of probabilities, or how to engage with contrary medical opinion. Practitioners must look to the underlying Acts and administrative guidance for those procedural matters.

Establish the applicable claim framework. Verify that the claim falls within the SOP’s stated application: a claim to which section 120B of the VEA or section 339 of the MRCA applies (s5). Confirm that the claimant’s service qualifies as “relevant service” as defined in the Schedule. Do not assume this SOP applies to other statutory schemes or non‑relevant service categories.

Assemble precise timelines. Determine the dates of clinical onset of MND and any dates of clinical worsening. The distinction between onset and worsening matters because the smoking‑related factors refer to different temporal benchmarks (s9(1)-(2)). For claims involving death, obtain the date and clinical context of death and identify the terminal event, as defined in the Schedule, and whether MND contributed to that event (s7(5); Schedule).

Collect smoking history with sufficient granularity. If relying on s9(1) or s9(2), gather detailed smoking history that permits calculation of pack‑years under the Schedule’s rule: one pack‑year equals smoking 20 cigarettes per day for one year, with the Schedule providing a formula and conversions to grams for non‑cigarette tobacco (Schedule). Obtain contemporaneous medical notes, general practice records, hospital intake forms, and occupational health records which record quantity and duration of tobacco use. Where tobacco type varies (cigarettes, pipe, cigars), use the Schedule’s equivalency (1 gram of tobacco = one cigarette) and the 7,300 grams per pack‑year conversion if needed.

Document attempts to obtain clinical management. If relying on s9(3) “inability to obtain appropriate clinical management,” gather evidence showing effort to access care, referrals, wait times, availability of specialists, transfers, reasons for denial or delay, and any direct causation between lack of management and disease progression or outcome. Because the SOP provides no definition of “appropriate clinical management,” submissions should include clinical expert evidence explaining the accepted standard of care and how the absence of such care materially contributed to or aggravated MND.

Tie the factor to relevant service. Section 10(1) requires the factor to be related to the person’s relevant service. Prepare arguments and evidence linking the chosen factor to service‑related exposures or events. For example, where smoking history is the factor, explain whether smoking exposure is connected to service conditions or lifestyle during service, and provide service records that corroborate timing and context.

Consider the temporal restriction in s10(2). If the claimant’s MND was suffered or contracted before or during service but did not arise out of service, then s9(2) and s9(3) can be engaged for material contribution or aggravation (s10(2)). Prepare evidence to show when the disease was first suffered or contracted relative to service dates and whether it “arose out of” service. Where the disease arose out of service, these particular factors may not be the route to establishing material contribution or aggravation under this SOP.

Check for cross‑references to other SOPs. Under s11, if any factor refers to an injury or disease covered by a different SOP, the practitioner must identify that SOP and apply its factors as in force at the time. Search for and obtain copies of any referenced SOPs and ensure consistency between them in submissions and evidence.

Prepare medical expert evidence addressing the RMA’s stated view. The SOP states that the RMA’s view is that, on the balance of probabilities, and on the sound medical‑scientific evidence available, MND and death from MND can be related to relevant service (s8). To engage with that medical view, obtain expert reports that explain how the claimant’s facts meet the SOP criteria and, if necessary, rebut alternative explanations or disease processes excluded by subsection 7(2).

For death claims, obtain forensic and terminal event evidence. If the claim concerns death from MND, obtain cause‑of‑death documentation, hospital records, post‑mortem reports if available, and expert opinion linking the terminal event (as defined in the Schedule) to the decedent’s MND (s7(5); Schedule).

Use the Schedule’s numeric rules. When preparing evidence that involves tobacco consumption, calculate pack‑years using the Schedule’s formula and provide worked examples in the submission, as the Schedule does (Schedule). Where tobacco is pipe or cigar or mixed forms, apply the Schedule’s gram equivalence to produce a clear numeric calculation.

Anticipate and address gaps. Given the SOP’s lack of procedural detail and omissions such as a definition of “appropriate clinical management,” anticipate challenges to sufficiency of evidence. Provide comprehensive documentation, contemporaneous records, witness statements, and medical expert reports that address the factual elements the SOP relies upon.

Review and update evidence against current SOP versions. Because s11 requires application of other SOPs “as in force from time to time,” practitioners should confirm they are using the current version of this SOP and any referenced SOPs. Although this instrument repealed the 2013 SOP (s4), subsequent instruments may amend SOPs; ensure the most current texts are used in submissions.

Document service and non‑service factors distinctly. Because the SOP requires that any factor be related to relevant service (s10(1)), structure submissions to separate non‑service risk factors from service‑related exposures, and provide evidence tying the chosen factor causally or temporally to service.

Maintain records of calculations and assumptions. For pack‑year calculations and any application of conversions from the Schedule, include the calculation steps, assumptions about tobacco type, and citations to the Schedule so decision‑makers can replicate the analysis.

Finally, where the issues are finely balanced, consider obtaining multiple expert opinions that address both the RMA’s stated medical view and alternative explanations, while ensuring evidence addresses the elements the SOP sets out to prevent avoidable procedural or evidential failure.