Statement of Principles concerning somatic symptom disorder (Reasonable Hypothesis) (No. 64 of 2022)

The central concept is “somatic symptom disorder” as defined in subsection 7(2). The definition is derived from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). To meet the definition, the disorder must be diagnosed by a psychiatrist. The symptom or symptoms must be distressing or cause significant disruption of daily life. Additionally, there must be excessive thoughts, feelings or behaviours related to the symptoms or health concerns, manifested by at least one of: disproportionate and persistent thoughts about the seriousness of the symptoms; persistently high level of anxiety about health or symptoms; or excessive time and energy devoted to the symptoms or health concerns. The state of being symptomatic must have persisted for at least six months, although any single symptom need not be continuously present. This is a high diagnostic threshold, excluding transient or mild presentations. The instrument also defines “death from somatic symptom disorder” to include death from a terminal event or condition that was contributed to by the disorder. The “factors that must exist” (section 9) are the core of the SoP. There are six factors: (1) experiencing severe childhood abuse before the clinical onset; (2) experiencing a category 1A stressor within one year before clinical onset; (3) experiencing a category 1B stressor within one year before clinical onset; (4) experiencing a category 1A stressor within one year before clinical worsening; (5) experiencing a category 1B stressor within one year before clinical worsening; (6) inability to obtain appropriate clinical management for the disorder. The terms “category 1A stressor” and “category 1B stressor” are defined in the Dictionary. A category 1A stressor involves experiencing a life-threatening event; being subject to a serious physical attack or assault including rape and sexual molestation; or being threatened with a weapon, held captive, kidnapped or tortured. A category 1B stressor includes killing or maiming a person; being an eyewitness to a person being killed or critically injured; being an eyewitness to atrocities inflicted on another; participating in the clearance of a corpse or critically injured casualty; or viewing a corpse or critically injured casualty as an eyewitness. “Severe childhood abuse” is defined as serious physical, emotional, psychological or sexual harm, or neglect involving a serious failure to provide necessities for health, physical and emotional development or wellbeing, whilst a child aged under 16, where the harm or neglect is perpetrated by a parent, care provider, adult who works with or around that child, or any other adult in contact with that child. The instrument also introduces the concept of “relevant service” which includes operational, peacekeeping, hazardous and British nuclear test defence service under the VEA, and warlike and non-warlike service under the MRCA. The SoP is built on the Authority’s view that there is sound medical-scientific evidence linking the disorder to relevant service (section 8). The standard of “reasonable hypothesis” is not defined in the instrument but is a well-established evidentiary standard in veterans’ law: it requires a hypothesis that is plausible, not fanciful, and consistent with the known medical facts and the SoP factors.

The primary affected persons are veterans, members of the Peacekeeping Forces, and members of the Forces under the VEA, as well as members under the MRCA, who suffer from somatic symptom disorder or have died from it, and who make a claim for compensation or treatment under either Act. This includes current and former members of the Australian Defence Force, as well as certain defence civilians and others covered by the VEA. The instrument also affects dependents of deceased members who claim on the basis of death contributed to by somatic symptom disorder. The instrument binds decision-makers at the Repatriation Commission, the Department of Veterans’ Affairs, and the Military Rehabilitation and Compensation Commission. Medical professionals, particularly psychiatrists, are affected because the definition requires diagnosis by a psychiatrist. General practitioners cannot provide the required diagnosis, which creates a referral burden and potential cost for claimants. Legal practitioners and advocates representing veterans must be familiar with the specific factor definitions to advise on claim viability. The instrument also affects researchers and those compiling evidence, as the temporal limits (e.g., within one year before clinical onset) require precise historical documentation. The instrument indirectly affects taxpayers, because successful claims for somatic symptom disorder result in pension payments, medical treatment costs, or other compensation funded from consolidated revenue. The instrument may also affect the operations of the Repatriation Medical Authority itself, as it reviews and updates SoPs periodically. The previous SoP (No. 24 of 2014) is repealed, so any claim that was pending but not finally determined before 25 July 2022 is now assessed under this new instrument. This potentially changes the outcome for claimants who may have had a factor under the old SoP that is no longer listed, or vice versa. The instrument does not affect persons who are not within the definition of “relevant service”, such as ordinary civilian employees or non-veterans. It also does not affect claims that were finally determined before the commencement date, as those are governed by the law in force at the time of determination (subject to any transitional provisions outside this instrument). The instrument may have flow-on effects for the Veterans’ Review Board and the Administrative Appeals Tribunal, which will apply this SoP in reviewing decisions. It also affects the Department’s internal guidelines and training materials.

The instrument itself does not explicitly create duties or rights in the traditional sense. Instead, it operates as a precondition for the operation of other statutory provisions. The key right it confers on a claimant is the right to have their claim assessed on the basis that if a factor exists and is related to service, a reasonable hypothesis is raised, and the decision-maker must apply the relevant standard of proof in favour of the claimant unless the contrary is proved. This is a significant procedural advantage compared to ordinary civil claims. The duty of the decision-maker is to apply the SoP correctly: they must determine whether the claimant has a diagnosis of somatic symptom disorder meeting the DSM-5-TR criteria, made by a psychiatrist; whether any of the six factors exists; and whether that factor is related to the claimant’s relevant service. The decision-maker does not have a discretion to disregard the factors if they are satisfied the factor exists. Conversely, if no factor exists, the decision-maker must find that the disorder is not service-related, regardless of other evidence. The instrument also imposes an evidentiary duty on the claimant to produce evidence that a factor exists, including medical records, psychiatric reports, and documentation of the relevant stressor or abuse. The definition of “severe childhood abuse” requires proof that the perpetrator fell within the defined categories (parent, care provider, adult who works with or around the child, or any other adult in contact with the child). That imposes a burden on claimants who may have been abused by a non-adult, such as a sibling close in age, or by a stranger not “in contact with” the child in the required sense. The right to rely on the “inability to obtain appropriate clinical management” factor (9(6)) is limited to aggravation cases where the disorder existed before or during service but did not arise out of service (section 10(2)). This imposes a duty on the claimant to show that the inability was service-related. The instrument does not impose any duties on third parties such as employers or medical providers. There is no duty on the Authority to update the SoP within a particular timeframe, but section 196B of the VEA requires the Authority to determine SoPs where it is of the view that sound medical-scientific evidence exists. The instrument itself does not confer any appeal rights, but the underlying Acts do.

This instrument does not create any criminal offences or civil penalties. It is not a regulatory instrument that imposes fines or sanctions. Enforcement, rather, is through the claim determination process. If a claimant fails to satisfy the factor requirement, the claim is refused, which is the effective enforcement of the instrument’s requirements. There is no separate penalty for a claimant who makes a false statement, but the VEA and MRCA contain general provisions about false and misleading statements that can result in cancellation of benefits, repayment obligations, and potentially criminal prosecution under the Criminal Code. The instrument itself, however, does not reference these. For decision-makers, failure to apply the SoP correctly can lead to internal review, appeal to the Veterans’ Review Board, and then to the Administrative Appeals Tribunal, and ultimately judicial review. There is no penalty on the decision-maker personally, but the decision may be set aside. The Repatriation Medical Authority is not subject to any penalty for issuing a SoP that is later found to be invalid, though judicial review could strike it down. The instrument does not provide for any monitoring or compliance activity. It is a legislative instrument registered on the Federal Register of Legislation, and any person affected can challenge its validity on administrative law grounds, such as jurisdictional error or unreasonableness, but that would be a rare event. The practical enforcement of the instrument occurs at the point of claim assessment, and the Department of Veterans’ Affairs has internal guidelines to ensure consistent application. The Authority itself does not enforce the instrument; its role is limited to issuing SoPs. The repeal of the previous SoP (No. 24 of 2014) means that any decision made under the old SoP before its repeal stands, but decisions made after 25 July 2022 must apply this instrument. There is no transitional penalty for applying the wrong SoP, but it could lead to a legally erroneous decision. The costs of non-compliance are borne by the claimant whose claim is denied if the factor is not established, or by the Commonwealth if a claim is wrongly granted. The instrument itself does not address costs or penalties for delay.

This SoP operates within the broader veterans’ entitlements framework. Its legal authority comes from subsection 196B(2) of the VEA. Section 120A of the VEA requires that, for a claim relating to an injury, disease or death to which a SoP applies, the Commission must determine the claim in accordance with the SoP. Similarly, section 338 of the MRCA requires the same. Thus, this instrument overrides any other evidentiary rules that might otherwise apply to the issue of service connection. It has the effect of codifying the minimum factors that can raise a reasonable hypothesis, and no other non-listed factor can be used for that purpose. However, if a factor referred to in section 9 of this SoP refers to an injury or disease in respect of which another SoP has been determined under subsection 196B(2) of the VEA, then section 11 of this instrument incorporates that other SoP by reference, as in force from time to time. This means that the factors for that other injury or disease must also be satisfied. For example, if a factor involves “experiencing a category 1A stressor” that itself caused an injury (like an anxiety disorder), and there is a SoP for that anxiety disorder, then the claimant may need to satisfy the factors of that SoP as well, depending on the wording. The instrument interacts with the VEA and MRCA definitions of “relevant service” and with the standard of proof provisions. It does not interact with state workers’ compensation schemes or private insurance, as it is exclusively federal. It does not affect civil liability or criminal law. It also interacts with the Administrative Decisions (Judicial Review) Act 1977, because decisions applying the SoP are subject to judicial review on standard grounds. The instrument is a legislative instrument subject to disallowance by Parliament under the Legislation Act 2003, although that is a post-making interaction. It also interacts with the Repatriation Medical Authority’s own guidelines and previous SoPs: it repeals the 2014 SoP, so the two do not operate concurrently. There is no interaction with the National Disability Insurance Scheme or Medicare unless the claimant uses those systems for treatment, but the SoP does not govern those schemes. The DSM-5-TR definition is incorporated by reference, so changes to the DSM may affect the interpretation of this SoP, though the instrument refers to a specific edition (2022). If the DSM is revised, the Authority would need to issue a new SoP to update the reference. The instrument does not interact with international instruments or human rights treaties beyond the general obligation to interpret laws consistently with Australia’s international obligations. Practitioners must also consider the interaction with section 120B of the VEA, which deals with claims where a SoP does not apply - this SoP does apply, so that section is irrelevant for somatic symptom disorder.

The only amendment history apparent from the instrument itself is that it repeals and replaces the Statement of Principles concerning somatic symptom disorder No. 24 of 2014 (Federal Register of Legislation No. F2014L00304). The instrument was made on 24 June 2022 and commenced on 25 July 2022. It is No. 64 of 2022. There is no indication of any earlier amendments to the 2014 SoP, nor any later amendments to this 2022 SoP within the text provided. The instrument is made under subsection 196B(2) of the VEA, which is the standard provision for SoPs that are based on a “reasonable hypothesis” standard (as opposed to subsection 196B(3) for the “balance of probabilities” standard used for malignant neoplasms and other conditions). The Authority has the power to revoke or amend a SoP under section 196C of the VEA. No amendment history is recorded in the instrument itself. Typically, the Federal Register of Legislation would show any subsequent amendments, but they are not part of this text. The previous SoP (No. 24 of 2014) would have been in force for approximately eight years before repeal. The reasons for the repeal are not stated in the instrument, but section 8 of this SoP indicates the Authority is of the view that there is sound medical-scientific evidence that the disorder can be related to service. It is reasonable to infer that the Authority considered new evidence or a change in diagnostic criteria (from DSM-5 to DSM-5-TR) necessitated the update. The instrument does not include explanatory material or a statement of reasons; those are published separately if at all. The lack of an amendment history within the instrument means that the only change from the 2014 SoP is the instrument itself; no intermediate amendments have been made. For practitioners, it is important to check whether any claims pending at 25 July 2022 are affected by the change in factors. The instrument does not contain transitional provisions save for the application clause (section 5), which says it applies to claims under sections 120A or 338 regardless of when the claim was made. That implies that even if the claim was lodged before 25 July 2022, if it has not been finally determined, this SoP applies. That is a standard approach for SoPs, but it can disadvantage claimants who relied on the old factors.

The instrument itself does not record any litigation history. It is a recent instrument made in 2022, and as of the time of writing, it is possible that no court or tribunal has considered its validity or interpretation in a published decision. However, previous SoPs for somatic symptom disorder (particularly the 2014 version) would likely have been considered in Administrative Appeals Tribunal and Veterans’ Review Board decisions. Those decisions are not referenced in this instrument. The instrument is a legislative instrument and is subject to judicial review on grounds such as ultra vires, unreasonableness, or procedural error. The Authority must comply with section 196B, which requires that before determining a SoP, the Authority must be satisfied that there is sound medical-scientific evidence. If a claimant challenges a decision refusing their claim under this SoP, they may argue that the Authority did not have a proper basis for including or excluding certain factors, but such challenges are difficult because the Authority has broad discretion. The High Court has considered the nature of SoPs in cases such as Repatriation Commission v B (2001) 184 ALR 113, and the Federal Court has often dealt with interpretation of SoP factors. However, this specific instrument has not been litigated. The lack of litigation history means that the precise boundaries of definitions like “severe childhood abuse” (particularly the phrase “any other adult in contact with that child”) have not been judicially tested. Similarly, the exclusion of closed body bags from the definition of “corpse” may be contested if a veteran argues that viewing a closed body bag was traumatic enough. The definition of “eyewitness” excluding media coverage may also be litigated in cases where a veteran experienced an incident through real-time remote technology. The instrument’s requirement that the diagnosis be made by a psychiatrist could be challenged on the basis that it is an overly restrictive requirement, but the Authority has included it explicitly. For now, the litigation history is essentially a blank slate, and practitioners should be cautious about relying on interpretations from cases under the 2014 SoP, as the definitions have changed. It is likely that the first few AAT decisions applying this SoP will be closely watched by the veterans’ law community.

Several provisions contain traps for the unwary. The definition of “severe childhood abuse” requires that the perpetrator be a parent, care provider, adult who works with or around that child, or any other adult in contact with that child. This excludes abuse by an older sibling under 18, a babysitter who is under 18, or a stranger who is an adult but not “in contact with” the child in a sustained way. A one-off assault by a stranger in a park would not qualify. The abuse must involve “serious” harm or neglect, which is a qualitative threshold. Emotional abuse, in particular, may be difficult to prove as serious without documented evidence. The “within 1 year before the clinical onset” temporal limitation for stressors means that a veteran who experienced a traumatic event but did not develop the disorder until years later cannot rely on that stressor alone unless it contributed to a worsening later. The distinction between clinical onset and clinical worsening is important: factors 9(4) and 9(5) apply only to worsening, and only where the disorder existed before or during service but did not arise out of service. That means a veteran whose somatic symptom disorder was aggravated by a stressor during service must show that the original disorder was not service-related - a perverse incentive to admit a pre-existing condition. The “inability to obtain appropriate clinical management” factor is also limited to aggravation claims. Further, it requires that the inability be related to service. This might apply if the veteran was posted to a remote location where psychiatric care was unavailable, but the veteran must prove that such inability contributed to the worsening, and that appropriate management would have prevented the worsening. The diagnosis must be by a psychiatrist. A diagnosis by a general practitioner or psychologist, even if consistent with DSM-5-TR, is insufficient. This creates a cost barrier and may delay claims. The definition of “corpse” expressly excludes “seeing a closed body bag or viewing a body in an open-casket coffin”. A veteran who attended a military funeral with an open casket cannot rely on that as a category 1B stressor. The “eyewitness” definition excludes exposure through public broadcasting or mass media. Watching a news report of a terrorist attack does not count, even if it causes extreme distress. The term “life-threatening event” in category 1A stressor is not further defined, but is likely interpreted strictly - a mere perception of threat may not suffice. The instrument does not include a factor for “experiencing a category 2 stressor” (a more common stressor) as some other SoPs do. This means that common stressors like non-combat trauma (e.g., a car accident) may not raise a reasonable hypothesis unless they meet the 1A definition. The “sound medical-scientific evidence” statement in section 8 is a jurisdictional fact that the Authority must have considered, but the instrument does not list that evidence, so a claimant cannot directly challenge the factor list based on competing evidence. The incorporation by reference in section 11 may create a cascade of SoPs: if a factor refers to an injury that has its own SoP, the claimant must satisfy that SoP as well, potentially increasing the evidentiary burden. Finally, the instrument applies to claims under both VEA and MRCA, but the standards of proof differ. For VEA claims, once the reasonable hypothesis is raised, the Commission must accept the claim unless disproved beyond reasonable doubt. For MRCA claims, the standard is balance of probabilities. This instrument does not address that difference, but practitioners must apply the correct standard.

For a claimant or their representative, compliance with this SoP begins with obtaining a psychiatric diagnosis that satisfies the DSM-5-TR criteria for somatic symptom disorder. The diagnosis must be explicitly documented by a psychiatrist, not merely a psychologist or GP. The psychiatrist should specifically address the three criteria (A, B, C) and state that the symptoms have persisted for at least six months. The diagnosis must be confirmed as “somatic symptom disorder” - not somatisation disorder, conversion disorder, or other similar conditions, as those are separate. Next, the representative must examine the six factors in section 9 and identify which, if any, applies. The most common factors will be the stressors. For a combat veteran, a category 1A stressor (life-threatening event) or category 1B stressor (killing, witnessing death) may be present. For a veteran with a history of childhood trauma, factor (1) applies. The key temporal requirement is that the stressor must have occurred within one year before the clinical onset (for first claim) or before the clinical worsening (for aggravation). Medical records and service documents must be gathered to establish the date of onset. This can be contentious if the onset was gradual. If the factor relies on “severe childhood abuse”, the representative must obtain evidence of the abuse and the perpetrator’s relationship to the child. The abuse must have occurred under age 16 and be perpetrated by a person within the defined categories. School records, child protection files, or statements from family members may be needed. The factor must then be related to the person’s relevant service (section 10). For factor (1), this means the abuse must have occurred during a period of relevant service or be causally connected to it - that is unlikely for childhood abuse before service, unless the person was a child during service (e.g., child of a veteran living on base). Usually, childhood abuse occurs before service, and it is difficult to relate it to service unless the abuse was inflicted by a person connected to the service (e.g., a parent who was a veteran). Section 10(1) requires that the factor be related to the relevant service rendered by the person. For factors (2) and (3), the stressor itself might arise out of service (e.g., combat). For factors (4), (5) and (6), the disorder must have existed before or during service but not arisen out of service, and the factor must materially contribute to the worsening. The representative must clearly articulate the hypothesis linking the factor to the disorder. If none of the factors exist, the claim will fail regardless of other evidence. Compliance for the decision-maker involves checking each element meticulously. The Department of Veterans’ Affairs will have internal guidelines, but the instrument itself is the authoritative source. Practitioners should maintain a checklist: (a) Is the diagnosis made by a psychiatrist meeting DSM-5-TR? (b) Is the condition somatic symptom disorder as defined? (c) Does at least one factor exist? (d) Is the factor related to relevant service? (e) For aggravation, does section 10(2) apply? The instrument does not require the factor to be the sole cause; it only requires that the factor exists. The reasonable hypothesis standard is low, but the factor must be more than a mere possibility. If the claim involves death, the death must have been contributed to by the disorder, as per subsection 7(3). The terminal event must be one of those listed (pneumonia, respiratory failure, cardiac arrest, circulatory failure, cessation of brain function) and the disorder must have contributed to it. That requires medical evidence linking the disorder to the terminal event, such as suicide or neglect leading to pneumonia. Finally, keep in mind that the SoP is binding, so any hypothesis that does not fit the factors is not a reasonable hypothesis as a matter of law. Practitioners should also check whether any cross-referenced SoP applies via section 11, which may require satisfaction of additional factors. Compliance is essentially about building a rigorous evidentiary record that maps directly onto the definitions and factors in the instrument.