Statement of Principles concerning obstructive and reflux nephropathy (Reasonable Hypothesis) (No. 85 of 2019)

The central concept is “obstructive and reflux nephropathy”, defined in subsection 7(2) as an acquired mechanical or functional impediment to normal urine flow, with urinary stasis and elevation in urinary tract pressure, causing either (i) clinical or biochemical evidence of impaired renal function or renal parenchymal damage, or (ii) calyceal deformity, hydroureter, or hydronephrosis. The definition includes renal scarring due to acquired vesicoureteric reflux but excludes acute, transient urinary retention not due to a fixed mechanical obstruction. This is a condition‑specific definition that governs the instrument, even though the disease attracts ICD‑10‑AM code N13; the instrument’s meaning overrides the classification code where there is inconsistency. The condition covers both obstructive uropathy (anatomical blockage) and reflux nephropathy (scarring from backflow of urine), hence the compound name. “Neurogenic bladder” is defined in the dictionary as flaccid, spastic or mixed bladder dysfunction caused by neurological damage affecting the bladder, with examples including spinal cord injury, stroke, Parkinson’s disease and diabetic autonomic neuropathy. “Terminal event” is defined as the proximate or ultimate cause of death, including pneumonia, respiratory failure, cardiac arrest, circulatory failure or cessation of brain function. The concept of “relevant service” is defined by reference to six categories: operational service, peacekeeping service, hazardous service and British nuclear test defence service under the VEA, and warlike service and non‑warlike service under the MRCA. The instrument operates under the “reasonable hypothesis” standard, which is a lower threshold than the balance of probabilities. This standard is set by section 120A of the VEA and section 338 of the MRCA, not by this instrument itself. The instrument does not define what constitutes a reasonable hypothesis, but by mandating at least one of the enumerated factors, it effectively creates a presumption that if a factor is present and related to service, a reasonable hypothesis is raised. Conversely, if no factor is present, no reasonable hypothesis can be raised. This is a gatekeeping function that replaces a more open‑ended factual inquiry with a structured checklist. The dictionary also defines “MRCA” and “VEA” by citation, and incorporates the note that “terminal event” is used in subsection 7(5) to include death contributed to by the condition. The instrument’s definitions are exhaustive for its purposes; terms not defined bear their ordinary meaning, but given the narrow legislative context, most relevant terms are captured.

The instrument directly affects veterans and members of the Australian Defence Force who have rendered relevant service as defined, and who suffer from obstructive and reflux nephropathy or die from it. Relevant service includes operational, peacekeeping, hazardous and British nuclear test defence service under the VEA, as well as warlike and non‑warlike service under the MRCA. That means a broad cohort of current and former Defence personnel, both those who served in combat zones and those in peacetime roles designated as hazardous or non‑warlike. The instrument does not apply to claims under other compensation schemes, such as the Safety, Rehabilitation and Compensation Act 1988, or to claims where the standard of proof is the balance of probabilities (except as incorporated by the MRCA for certain claims). It affects the Department of Veterans’ Affairs (DVA) and the Military Rehabilitation and Compensation Commission as primary decision‑makers, who must apply the instrument when assessing claims for this disease. The Veterans’ Review Board and the Administrative Appeals Tribunal will also be bound by the instrument in reviewing decisions. Medical advisers retained by DVA or by claimants’ representatives must assess whether the factors are present based on clinical evidence. Legal representatives and advocates for veterans must frame arguments within the factor list; a claim that does not identify at least one factor from section 9 is unlikely to succeed. The instrument also affects the Repatriation Medical Authority itself, which is responsible for maintaining and updating Statements of Principles, and the Minister for Veterans’ Affairs, who may be subject to pressure to amend the instrument if it is perceived as too restrictive or too generous. The compliance burden falls most heavily on claimants, who must obtain medical evidence linking their condition to a specific factor (e.g., having had kidney stones causing upper tract obstruction during service, or having neurogenic bladder from a service‑related spinal cord injury). The instrument does not create new obligations for private healthcare providers, but they may be called upon to provide reports addressing the factors. The existence of an exhaustive factor list reduces the scope for successful claims based on novel theories of causation, which may disadvantage claimants whose disease has a multifactorial aetiology not captured by the listed factors. Conversely, it provides certainty for decision‑makers and may reduce the cost and time of litigation by narrowing the issues.

The instrument itself does not impose duties on private persons; it is a legislative instrument that binds the decision‑maker in determining whether a reasonable hypothesis exists. The relevant duty is on the Repatriation Medical Authority to determine such Statements of Principles under subsection 196B(2) of the VEA, and on the decision‑maker (delegate, tribunal or court) to apply the instrument when adjudicating claims. For the claimant, the right is to have their claim assessed in accordance with this instrument. If they can raise at least one factor from section 9 that is related to their relevant service, the decision‑maker must find that a reasonable hypothesis has been raised, unless the contrary is proved beyond reasonable doubt (for operational service claims) or on the balance of probabilities (for other claims, though this instrument is made specifically for the reasonable hypothesis standard). The factors are structured in two groups: subsections 9(1) to 9(4) apply to the clinical onset of the disease; subsections 9(5) to 9(9) apply to the clinical worsening of the disease where the condition was suffered or contracted before or during (but did not arise out of) relevant service. This distinction means that a claimant with pre‑existing obstructive reflux nephropathy may still succeed if they can show a worsening factor related to service, but they cannot rely on the onset factors. The duty of the claimant is to adduce evidence supporting the existence of a factor and its connection to service. There is no duty on the decision‑maker to go beyond the listed factors; if none is present on the evidence, the claim fails. Section 11 introduces a cross‑reference duty: if a factor refers to an injury or disease covered by another Statement of Principles (e.g., renal stone disease in the note to factor 9(1)), then the factors in that other Statement of Principles apply. This means the claimant may need to satisfy two sets of factors: first, that they have the specified injury or disease (like renal stone disease) according to that other SoP’s definition, and second, that the factor (e.g., upper tract obstruction from that stone disease) is present. This multiplies compliance requirements. The right to appropriate clinical management is not a free‑standing duty of the Department; factor 9(9) (“inability to obtain appropriate clinical management”) operates as a proxy for delayed or inadequate treatment, but proving an inability is fact‑intensive and may require evidence of attempts to access care or systemic failures.

This instrument does not itself create penalties. It is a determinative instrument that guides decisions on entitlements, not a prohibitory or mandatory rule backed by sanctions. However, the enforcement of the instrument occurs through the administrative and judicial review system. If the decision‑maker fails to apply the instrument correctly, a claimant may seek review by the Veterans’ Review Board, the Administrative Appeals Tribunal, or the Federal Court on a question of law. Incorrect application could also lead to a successful appeal by the Department if it believes a claim was wrongly accepted. There are no direct penalties for non‑compliance by the claimant, but making a false or misleading statement in connection with a claim may be an offence under section 42 of the VEA or under the Criminal Code (e.g., obtaining a financial advantage by deception). The instrument’s structure creates an indirect enforcement mechanism: because the factors are exhaustive, a decision‑maker who ignores a factor that is supported by evidence risks an appeal, while a decision‑maker who accepts a claim without any factor arguably acts beyond power. The Repatriation Medical Authority does not enforce the instrument; it merely issues it. The Department’s internal guidelines and training ensure compliance, and the Inspector‑General of the Australian Defence Force or the Commonwealth Ombudsman may investigate systemic failures to apply the instrument properly. In practice, the most significant enforcement risk is litigation cost. A poorly reasoned decision under this instrument can lead to extended tribunal proceedings, which impose costs on both the claimant (if unrepresented) and the taxpayer (through the Department’s legal expenses). The instrument’s precision may reduce the scope for factual disputes, but the cross‑reference to other Statements of Principles (section 11) can create complex chains of causation that are harder to adjudicate. There is no penalty for the Repatriation Medical Authority if its “sound medical‑scientific evidence” claim is later found to be incorrect; the Authority is immune from civil liability in making these determinations. The enforcement burden therefore falls on the review bodies to ensure the instrument is applied as written.

This instrument is made under subsection 196B(2) of the VEA, which is the provision that allows the Repatriation Medical Authority to determine Statements of Principles for injuries and diseases for the purpose of applying the reasonable hypothesis standard in sections 120 and 120A. It is also relevant to section 338 of the MRCA, which applies the same standard for warlike and non‑warlike service. The instrument does not operate in a vacuum; it must be read together with the VEA and MRCA provisions on standard of proof, causation, and burden of proof. For operational service claims under the VEA, if a reasonable hypothesis is raised, the decision‑maker must accept the claim unless disproved beyond reasonable doubt. For peacekeeping, hazardous and British nuclear test defence service under the VEA, and for warlike and non‑warlike service under the MRCA, the standard is the balance of probabilities, but this instrument still sets the threshold for raising a reasonable hypothesis. The instrument expressly repeals the previous Statement of Principles No. 31 of 2011, so any claim for obstructive reflux nephropathy lodged on or after 23 September 2019 must be assessed under this instrument. Claims lodged before that date may still be assessed under the old SoP depending on transitional provisions in the VEA, but this instrument does not address that; it simply states it applies to claims to which section 120A VEA or section 338 MRCA applies. Section 11 of the instrument creates a dynamic interaction with other Statements of Principles. If a factor refers to an injury or disease that itself is the subject of a Statement of Principles, then the factors in that other SoP apply. For example, the notes to factors 9(1) and 9(5) list “renal stone disease” as an example of an upper tract obstruction cause. If a claimant relies on kidney stones as the cause, they may need to satisfy the Statement of Principles for renal stone disease (if one exists) to establish that the renal stone disease itself is related to service, before they can use it as a factor for obstructive reflux nephropathy. This creates a cascading causation requirement. The instrument also interacts with the ICD‑10‑AM classification system, but only as a referential tool; the definition in subsection 7(2) overrides any classification inconsistency. The interaction with workers’ compensation schemes is indirect: a veteran who also has a claim under the Safety, Rehabilitation and Compensation Act may not be able to rely on this SoP for that claim, as that Act has its own causation standards. The instrument does not affect private law rights, such as negligence claims against medical providers for failing to treat obstruction; those claims are governed by separate legislation and common law.

This instrument is the second Statement of Principles for obstructive and reflux nephropathy made under subsection 196B(2) of the VEA. It repeals the earlier Statement No. 31 of 2011 (registered as F2011L00767). The instrument itself was made on 23 August 2019 and commenced on 23 September 2019. The text does not record any subsequent amendments; it is the current version as of the date of the instrument. The Repatriation Medical Authority reviews Statements of Principles periodically based on emerging medical‑scientific evidence, and the 2019 instrument presumably reflects a reassessment of the evidence base since 2011. The instrument lists only one change: the repeal of the predecessor. There is no explanatory memorandum or second reading speech attached to the instrument, unlike primary legislation. The Authority is not required to provide reasons for the changes, only to state that it is of the view that there is sound medical‑scientific evidence. The instrument does not disclose whether the factor list was expanded, contracted, or refined compared to 2011. A practitioner comparing the two versions would need to locate the 2011 SoP separately. The absence of amendment notes within the instrument means that any subsequent variations (e.g., if the ICD‑10‑AM edition is updated) are not captured. However, the Authority could issue a new SoP in the future, which would repeal this one. The instrument is a standalone document; it does not incorporate by reference the repealed SoP. The structure of section 4 (Repeal) is simple and does not contain savings or transitional provisions, meaning that any claim that was not finally determined before 23 September 2019 would be assessed under this new instrument. The amendment history is therefore minimal: one replacement of a prior instrument. The Authority’s process is governed by the VEA, which requires it to determine SoPs based on sound medical‑scientific evidence, but the instrument itself does not detail the evidence considered or any changes from the previous version. This lack of transparency is a compliance cost for claimants and advocates who must infer changes from the text alone.

The instrument itself does not record any litigation history. No court or tribunal decisions are cited in the text. The predecessor Statement of Principles (No. 31 of 2011) may have been considered in cases before the Administrative Appeals Tribunal or the Federal Court, but this instrument does not reference those decisions. Because this instrument is a legislative instrument, it is subject to judicial review for jurisdictional error, unreasonableness, or failure to take into account relevant considerations, but no such challenge is recorded within the provided source. In practice, Statements of Principles are frequently litigated on questions such as whether a factor is supported by sound medical‑scientific evidence, whether the Authority misdirected itself, or whether a particular claimant’s circumstances fall within a factor. The factor‑based structure often leads to disputes over the interpretation of medical terms (e.g., “neurogenic bladder” or “upper urinary tract obstruction”) and over whether the claimed condition meets the definition in subsection 7(2). The instrument’s exclusivity (no factor, no reasonable hypothesis) means that borderline cases are likely to be contested. The cross‑reference mechanism in section 11 adds another layer of potential challenge, as claimants may argue that the incorporated Statement of Principles has been misapplied. However, without specific case names in the source, we cannot assert any particular litigation outcome. The instrument is relatively recent (2019), and the lag time for claims to reach the review bodies means significant litigation history may not yet exist or may not be publicly reported. The absence of litigation history in the source does not mean the instrument is unchallenged; it only means the instrument itself does not mention any cases. A thorough legal analysis would require a separate search of tribunals and courts, but such research is outside the scope of this deep dive, which must be grounded in the source provided.

Several provisions in this instrument can trap the unwary. First, the definition of obstructive and reflux nephropathy in subsection 7(2) expressly excludes “acute, transient urinary retention not due to a fixed mechanical obstruction”. This means that a veteran who experienced temporary urine retention post‑surgery or due to a medication side effect, without a fixed blockage, does not meet the definition. Such retention will not found a claim even if it caused renal impairment. Second, the factor list in section 9 is exhaustive. A claimant cannot succeed by showing simply that their service contributed to the disease in a general sense; they must identify at least one specific factor from the list. Third, the distinction between onset factors (subsections 9(1) to 9(4)) and worsening factors (subsections 9(5) to 9(9)) is critical. If a claimant had obstructive reflux nephropathy before service (whether congenital or acquired), they can only rely on the worsening factors. And section 10(2) further requires that for worsening, the disease was suffered or contracted before or during (but did not arise out of) relevant service. That wording excludes the scenario where the disease arose during service from a cause not related to service? The precise interaction may be confusing; it essentially means the worsening factors apply only if the disease pre‑existed the relevant service or arose from non‑service causes during service. Fourth, the factor “inability to obtain appropriate clinical management” (subsection 9(9)) is a catch‑all but is notoriously difficult to prove. The instrument does not define “appropriate clinical management” or “inability”. It is not enough to show that the management was suboptimal; the claimant must show inability to obtain it, which may require evidence that appropriate management was unavailable, refused, or not offered despite reasonable efforts. Fifth, the neurogenic bladder factor (subsections 9(4) and 9(8)) requires that the neurogenic bladder exist “at the time of” the clinical onset or worsening. That temporal link is strict: if the neurogenic bladder developed after the onset, it cannot be used for that onset, though it might be used for worsening if it coincides. Sixth, section 11 creates a hidden trap: if a factor refers to an injury or disease covered by another Statement of Principles, the claimant must satisfy that other SoP’s factors. For example, if a claimant relies on upper urinary tract obstruction caused by benign prostatic hyperplasia, they may need to satisfy the SoP for benign prostatic hyperplasia (if one exists) to show that the BPH itself is service‑related. This can require proving two separate causal chains. Seventh, the instrument does not contain any “reasonableness” override; if a factor is technically present but trivial, the claim may still succeed, but this could be challenged on the basis that the hypothesis is not reasonable. However, the instrument itself does not provide guidance. Eighth, the dictionary definition of “neurogenic bladder” includes only dysfunction caused by neurological damage. Bladder dysfunction from other causes (e.g., medication, psychological factors, structural damage without neurological injury) is not covered. Ninth, the ICD‑10‑AM code N13 is merely a reference; the instrument’s own definition governs, so coding alone is insufficient. Finally, the instrument applies only to claims under the reasonable hypothesis standard; if a claim is assessed under the balance of probabilities standard (e.g., for some MRCA claims), this SoP may still be used to determine whether a reasonable hypothesis exists, but the ultimate decision may be different.

Compliance with this instrument is a matter of bringing one’s claim within its terms. For a veteran or member: first, obtain a medical diagnosis confirming that the condition meets the definition in subsection 7(2). That diagnosis should state that there is an acquired mechanical or functional impediment to urine flow with stasis and elevated pressure, causing renal impairment or structural changes. The diagnosis should exclude acute transient urinary retention not due to fixed obstruction. If the condition includes renal scarring, confirm that it is due to acquired (not congenital) vesicoureteric reflux. Second, identify which factor or factors from section 9 apply. The most common factors are likely to be upper or lower urinary tract obstruction. Obtain medical evidence showing the presence of such obstruction before the clinical onset or worsening. The evidence should specify the cause (e.g., renal stone, prostatic enlargement, urethral stricture) and confirm that the obstruction was partial or complete. If the obstruction was due to a condition that has its own Statement of Principles (e.g., renal stone disease, neoplasm), the claimant must also satisfy that SoP to establish that the underlying condition is service‑related. Third, establish that the factor is related to relevant service. This requires a temporal and causal link: the obstruction must have occurred during a period of operational, peacekeeping, hazardous, British nuclear test defence, warlike or non‑warlike service, or it must be a consequence of such service. For example, a kidney stone that formed during service and caused obstruction would satisfy this if properly documented. For neurogenic bladder, the neurological damage (e.g., spinal cord injury, stroke) must be service‑related. For the “inability to obtain appropriate clinical management” factor, the claimant must show that they needed but could not access appropriate treatment for the disease, and that this occurred during or as a result of service. This is a high bar and usually requires evidence of attempts to obtain treatment or systemic failures. For a claim based on clinical worsening, ensure that the disease existed before or was contracted during service (from a non‑service cause) and that a worsening factor from subsections 9(5) to 9(9) occurred after that. The temporal order matters: the worsening factor must precede the worsening of the disease. For decision‑makers: apply the instrument as a checklist. Verify that the claimed condition fits the definition. If the condition is not obstructive and reflux nephropathy as defined, the SoP does not apply. Then check if at least one factor from section 9 exists on the medical evidence. If no factor exists, no reasonable hypothesis can be raised. If a factor exists, check section 11: does that factor refer to an injury or disease with its own SoP? If so, apply that SoP to determine if the injury or disease is related to service. Then, under section 10, confirm that the factor is related to the person’s relevant service. Document each step. The submission should address the dictionary definitions where relevant (e.g., neurogenic bladder). For claims involving death, subsection 7(5) applies: the death must have been contributed to by the disease, and the terminal event must fall within the defined list. The decision‑maker should also be aware of the temporal distinction between onset and worsening. If the disease had its clinical onset after the relevant service, only onset factors apply. If the clinical onset was before service, only worsening factors apply (and section 10(2) exempts worsening factors from the “arising out of” requirement, but the disease must have been suffered or contracted before or during service without having arisen out of it). Finally, maintain clear records of the evidence and reasoning to withstand review. Compliance is procedural: the instrument reduces discretion to a binary test of factor present or absent. The greatest risk is failing to identify which SoP applies to an underlying cause or misinterpreting the definition of the disease.