Statement of Principles concerning spinal adhesive arachnoiditis (Balance of Probabilities) (No. 75 of 2020)

The central concept is "spinal adhesive arachnoiditis", defined in subsection 7(2) as chronic inflammation of the arachnoid membrane of the spinal cord, with fibrosis and nerve root adhesions in the arachnoid and subarachnoid space that have been demonstrated by imaging or surgery. The condition requires that neurological symptoms and signs be consistent with the observed spinal pathology. This definition is deliberately narrow: it excludes asymptomatic transient inflammation (i.e., incidental findings on imaging without symptoms) and arachnoid inflammation involving the brain or cranial nerves. It includes arachnoiditis ossificans, a variant where the adhesions undergo bone formation. The instrument distinguishes between "clinical onset" and "clinical worsening". For clinical onset (first occurrence of symptoms sufficient for diagnosis), factors 1 to 12 apply. For clinical worsening (material aggravation of an existing condition), factors 13 to 25 apply. The same types of factors appear in each group, but the temporal windows differ: for example, severe spinal trauma and spinal surgery both carry a 10‑year lookback for onset and worsening; spinal subdural haematoma has a narrower 2‑year window; intrathecal injection of methotrexate or cytosine arabinoside has a 1‑year window. Other factors such as having a lumboperitoneal shunt or an in situ intrathecal drug delivery system require the device to be present "at the time" of onset or worsening, with no explicit lookback period. Another key concept is "relevant service". It is defined in the dictionary in Schedule 1 as eligible war service (other than operational service) or defence service (other than hazardous service and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. This means the SoP does not apply to veterans with operational service under the VEA; those claims would be assessed under a different standard (reasonable hypothesis) under subsection 196B(2) of the VEA. The instrument uses several specialised terms defined in the dictionary. "Severe spinal trauma" means the application of significant external force (blunt, blast, or penetrating) that causes fracture or crush injury of the vertebral column, or other direct injury to the spinal cord or meninges that results in neurological dysfunction. Importantly, that definition excludes surgical and therapeutic procedures. "Specified list of infections" is a closed list: fungal or bacterial infection of the spinal cord, fungal or bacterial meningitis, neurosyphilis, spinal toxoplasmosis, spinal tuberculosis, and vertebral osteomyelitis at the affected site. "Specified list of radiological contrast agents" is similarly closed: dimeglumine iocarmate (Dimer‑X), meglumine iothalamate (Conray), metrizamide (Amipaque), and sodium iodomethanesulfonate/methiodal sodium (Abrodil). "Terminal event" includes pneumonia, respiratory failure, cardiac arrest, circulatory failure, and cessation of brain function. The SoP also incorporates a cross‑referencing mechanism in section 11: if a factor in section 9 refers to an injury or disease for which another SoP has been determined, the factors in that other SoP apply as in force from time to time. This prevents duplication and ensures consistency across SoPs.

This SoP primarily affects persons who have rendered "relevant service" as defined: veterans with eligible war service under the VEA that is not operational service, veterans with defence service under the VEA that is not hazardous service or British nuclear test defence service, and members with peacetime service under the MRCA. In practice, this includes most veterans who served during peacetime or in non‑combat roles, and members of the Australian Defence Force who rendered service not classified as hazardous or operational. It does not cover veterans with operational service (e.g., service in a declared war or warlike operation) because those claims are assessed under the reasonable hypothesis standard of subsection 196B(2) of the VEA, where a separate SoP (if any) would apply. The instrument also affects dependents of eligible persons who die from spinal adhesive arachnoiditis, because the definition of death includes death contributed to by a terminal event. For those dependents, the SoP provides the evidentiary framework for a death‑related compensation claim. Beyond claimants, the SoP affects a range of institutional actors. The Department of Veterans' Affairs delegates and the Military Rehabilitation and Compensation Commission must apply this SoP when determining liability for compensation, incapacity payments, or medical treatment for spinal adhesive arachnoiditis. Veterans' Review Board members and Administrative Appeals Tribunal members must also apply it on review. The Repatriation Medical Authority itself is affected in that it must keep the SoP up to date; this instrument is an update of the 2011 version. Medical professionals who provide assessments and reports for compensation claims are directly affected: they must tailor their evidence to meet the definition of the condition (demonstrated by imaging or surgery, with consistent neurological symptoms) and identify the relevant factor category. For example, a neurosurgeon's operation note confirming adhesions and fibrosis may suffice as demonstration, and a neurological physician's examination report confirming symptoms is required. Legal practitioners advising claimants must understand the closed list of factors and the strict temporal requirements to avoid wasted effort. From an economic perspective, this SoP channels public resources (taxpayer‑funded compensation) based on a predetermined set of causal pathways, which reduces administrative discretion but also creates incentives: claimants will seek to prove factors that fit the list, possibly pursuing additional medical procedures or imaging to establish the condition, which can increase healthcare costs. Conversely, the instrument also acts as a cost‑control mechanism by excluding conditions that do not meet the narrow definition or that fall outside the listed factors. Compliance professionals in DVA must update internal guidelines and decision‑making templates to reflect the new instrument, incurring transition costs.

The SoP does not itself create duties or rights directly; those flow from the VEA and MRCA. However, the SoP imposes an evidentiary duty on claimants to prove at least one factor from section 9 on the balance of probabilities. Claimants have the right to have their claim assessed in accordance with the applicable SoP, and decision‑makers have a corresponding duty to apply the SoP correctly. If a claimant cannot satisfy any factor, the decision‑maker must deny the connection unless another provision of the VEA or MRCA allows it. The right to review is preserved: if a decision‑maker misapplies the SoP, the claimant can seek review by the Veterans' Review Board and the Administrative Appeals Tribunal, and ultimately judicial review in the Federal Court on questions of law. Section 10 requires that any factor relied upon must be related to the relevant service rendered by the person. This imposes a duty on the claimant to show not just that the factor exists, but that it has a connection to the specific service - for example, that spinal surgery or a myelogram was performed during service or was a consequence of a service‑related injury. Subsection 10(2) provides a special rule for factors 13 to 25 (clinical worsening): these factors apply only to material contribution to, or aggravation of, spinal adhesive arachnoiditis where the condition was suffered or contracted before or during (but did not arise out of) the person's relevant service. This means that if the condition existed prior to service, the claimant can rely on worsening factors only if the condition did not arise out of service. If it did arise out of service, the onset factors (1‑12) would normally apply. This distinction is critical and often overlooked. Section 11 imposes a duty on decision‑makers to incorporate other SoPs when a factor in section 9 refers to an injury or disease covered by another SoP. For example, factor 10 refers to "an infection from the specified list of infections". If that infection itself is a disease for which a separate SoP exists, the decision‑maker must apply the factors in that SoP to determine whether the infection is related to service. This creates a chain of evidentiary dependencies that can complicate claims. The Repatriation Medical Authority also has a duty under the VEA to determine SoPs based on "sound medical‑scientific evidence", and section 8 of the instrument records that such evidence supports the view that the condition can be related to relevant service. This statement is not binding on external reviewers, but it is the Authority's official position. There is no duty on the Authority to update individual SoPs at any set interval, but they are subject to periodic review.

This SoP is not a penal instrument; it contains no fines, imprisonment, or other criminal penalties. Enforcement occurs through the claims and review process. If a claimant makes a false or misleading statement in connection with a claim under the VEA or MRCA, they may be subject to criminal prosecution under the Criminal Code Act 1995 (Cth) sections 134.1 (obtaining a financial advantage by deception) and 137.1 (false or misleading information), or under specific provisions of the VEA such as section 202 (offences relating to claims). The SoP itself is the evidentiary benchmark; misrepresenting medical evidence to meet the SoP's criteria could lead to those penalties. Additionally, the Social Security (Administration) Act 1999 does not apply, but the VEA has its own recovery provisions for overpayments resulting from false statements. Administrative enforcement is more immediate: a decision‑maker can reject a claim if the evidence does not satisfy the SoP's requirements, and that decision can be reviewed. The SoP is subject to disallowance by either House of the Commonwealth Parliament within 15 sitting days after tabling, under the Legislation Act 2003. That is a form of parliamentary oversight, but is rarely exercised. The Repatriation Medical Authority's determination to make the SoP is itself reviewable by the courts on administrative law grounds (e.g., jurisdictional error, failure to take into account relevant considerations), but such challenges are rare and costly. For legal practitioners, the practical "penalty" of failing to comply with the SoP is that the claim will fail; there is no separate penalty for the practitioner. For the Department of Veterans' Affairs, systemic failure to apply the SoP could lead to adverse tribunal decisions, adverse cost orders, and political scrutiny. There is no private right of action for breach of the SoP; it is a tool for public decision‑making. In economic terms, the enforcement mechanism is the denial of benefits, which provides an incentive for claimants to provide accurate evidence, but also creates a risk of over‑documentation and defensive medicine as practitioners order unnecessary imaging or surgery to create a record that proves the condition within the definition.

The SoP operates within the framework of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It is made specifically under subsection 196B(3) of the VEA, which applies the balance‑of‑probabilities standard. This means it does not interact with the reasonable‑hypothesis standard in subsection 196B(2) for operational service. A veteran with operational service cannot use this SoP; instead, the relevant SoP for that standard (if one exists) or general medical evidence would be used. The instrument explicitly applies to claims under section 120B of the VEA and section 339 of the MRCA, which are the provisions that direct the decision‑maker to apply the relevant SoP. Section 11 of the SoP creates an interaction with other SoPs: if any factor in section 9 refers to an injury or disease for which a separate SoP has been determined under subsection 196B(3), the factors in that other SoP must be applied. For example, factor 11 is "having a subarachnoid haemorrhage". A subarachnoid haemorrhage is itself a disease; if an SoP has been determined for subarachnoid haemorrhage, the decision‑maker would need to assess whether that haemorrhage is service‑related using the factors in that SoP. This can create multiple layers of proof. The SoP also interacts with the Administrative Appeals Tribunal Act 1975 and the Veterans' Entitlements (Review) Regulations, which govern the review process. It interacts with the Acts Interpretation Act 1901 for principles of statutory interpretation. There is no direct interaction with state workers' compensation laws or the Safety, Rehabilitation and Compensation Act 1988 (Comcare), because this SoP applies only to military compensation schemes. The instrument also interacts with the Commonwealth's model litigant obligations: the Department must not unreasonably withhold concessions on factual matters that are supported by the SoP. From a private‑enterprise perspective, this SoP influences the market for medical‑legal reports; specialists in neurosurgery, radiology, and neurology are in demand to provide evidence that meets the strict definitions. It also affects the insurance market for medical indemnity, as practitioners performing spinal surgery or myelography face litigation risk if the procedure is later linked to arachnoiditis. The SoP does not create private rights; it is purely an evidentiary instrument for public compensation.

This instrument, No. 75 of 2020, is the second SoP for spinal adhesive arachnoiditis made under subsection 196B(3) of the VEA. It repeals and replaces the Statement of Principles concerning spinal adhesive arachnoiditis No. 117 of 2011 (registered as F2011L01749). The 2011 SoP itself would have replaced an earlier version. The instrument was made on 30 October 2020 and commenced on 30 November 2020, providing a 30‑day transition period. The Repatriation Medical Authority has a statutory obligation under section 196C of the VEA to review SoPs from time to time, and this update reflects the Authority's assessment of current medical‑scientific evidence. The repeal clause (section 4) ensures that the 2011 SoP ceases to apply to claims made on or after commencement. However, the VEA and MRCA contain transitional provisions: if a claim was made before commencement but not yet decided, the decision‑maker may need to consider which SoP applies. Generally, the law in force at the time of the decision applies, which would be the new SoP. The amendment history is short because only one previous instrument is cited. There are no amending instruments that have changed this SoP since its commencement; it remains as originally determined. The instrument was published on the Federal Register of Legislation. A notable point is that the 2011 SoP was likely similar in structure, but the 2020 version may reflect updated medical evidence on specific factors (e.g., the specified list of contrast agents may have been revised, or temporal windows adjusted). Without the 2011 text, we cannot compare, but the fact that the same number of factors (25) persists suggests continuity. The instrument's currency is critical for practitioners: any advice relying on the 2011 SoP is now wrong. For the purpose of review, if the Administrative Appeals Tribunal or a court is considering a decision made before commencement, it may apply the former SoP if the decision under review was made under that regime, but the new SoP is relevant for fresh claims and for ongoing reviews of decisions made after commencement.

The instrument itself does not cite any litigation; it is a legislative instrument, not a court judgment. However, as with all SoPs, it has been and will be the subject of litigation in the Administrative Appeals Tribunal and the Federal Court. The most common grounds for challenge include: (1) whether the Repatriation Medical Authority had jurisdiction to make the SoP under section 196B; (2) whether the Authority correctly interpreted the VEA or MRCA; (3) whether the SoP is invalid for failing to take into account relevant evidence or for being capricious; and (4) whether the decision‑maker applied the SoP correctly to the facts. The Federal Court has considered challenges to other SoPs on similar grounds; for example, in Repatriation Commission v. Smith (2007) 163 FCR 104, the Court held that an SoP must be read as a whole and its terms given their ordinary meaning. Claimants have occasionally succeeded in arguing that a factor was too narrowly defined, leading to a subsequent amendment. Under the 2011 SoP, there may have been AAT decisions interpreting "severe spinal trauma" or the requirement for imaging demonstration. For the 2020 SoP, given its relative recency, there are likely few authoritative decisions yet. Practitioners should check the AAT's database for decisions that interpret the new definitions, particularly the exclusion of asymptomatic transient inflammation and the requirement for both imaging and symptoms. A significant potential area of litigation is the phrase "relevant service" as defined. Because it excludes operational service and hazardous service, claimants may argue that their service should be reclassified or that the SoP should apply by analogy. The courts have generally upheld the strict legislative distinction between standards of proof. Another litigation risk lies in factor 25 ("inability to obtain appropriate clinical management"). This factor is notoriously vague; the AAT has considered similar factors in other SoPs and often required medical evidence showing that appropriate management was not available and that this worsened the condition. Clarification in court is likely. From a practical standpoint, the litigation history is not extensive, but the instrument's careful definitions suggest the Authority sought to minimise ambiguity to reduce litigation. However, the closed list of contrast agents and infections may become outdated as new agents or pathogens emerge, forcing claimants to argue that the list should be read broadly, which invites judicial review.

Several provisions in this SoP are easily misapplied or overlooked. First, the condition itself has two mandatory components: (a) objective demonstration of chronic inflammation, fibrosis and adhesions by imaging or surgery; and (b) neurological symptoms and signs consistent with the observed pathology. A claimant who has classic adhesive arachnoiditis on MRI but has no symptoms (or symptoms that are unrelated to the spinal level) does not meet the definition. This excludes many incidental findings. Second, asymptomatic transient inflammation is expressly excluded, meaning that temporary postoperative arachnoid irritation without fibrosis does not qualify. Third, the "affected site" requirement: for factors that refer to "involving the affected site" (e.g., severe spinal trauma, spinal surgery, lumboperitoneal shunt), the factor must be at the same anatomical level as the arachnoiditis. A myelogram with contrast injected at L3‑4 that later causes T10 arachnoiditis may still be considered if the contrast circulated, but the instrument does not spell this out. Fourth, the temporal windows are tight: factor 12 (spinal subdural haematoma) allows only 2 years before clinical worsening, and factor 8/20 (intrathecal methotrexate) allows only 1 year. Claimants must produce records precisely dating these events. Fifth, factor 7/19 (in situ intrathecal drug delivery system) requires the device to be present "at the time" of onset or worsening. If the device was removed years earlier, it does not count. Sixth, factor 4/16 (oil‑soluble myelogram) has no temporal limit; it only requires the myelogram to have occurred "before" clinical onset or worsening. This is because oil‑soluble contrast agents were historically used and can cause arachnoiditis decades later. However, factor 5/17 (water‑soluble agents from the specified list) has a 10‑year limit. A claimant who had a water‑soluble myelogram 11 years ago cannot rely on that factor. Seventh, the "specified list of infections" is closed; common infections like herpes zoster or syphilis (unless defined as neurosyphilis) are not listed. Fungal infections are included, but only those of the spinal cord or meningitis; disseminated fungal infections are not covered unless they meet the spinal criteria. Eighth, factor 25 (inability to obtain appropriate clinical management) is often seen as a catch‑all, but it requires evidence that management was not appropriate, not just that the claimant did not receive care. The AAT has often required objective evidence that accepted treatments were unavailable or ineffective. Ninth, section 10(2) is a trap for worsening claims: it applies only if the condition was "suffered or contracted before or during (but did not arise out of) the person's relevant service". If the condition arose out of service, the onset factors (1‑12) must be used, not the worsening factors. This can confuse both claimants and decision‑makers. Tenth, the definition of "death from spinal adhesive arachnoiditis" (subsection 7(3)) includes death from a terminal event contributed to by the condition. The terminal event list is exclusive only for definition; other causes may still qualify if contributed to by the arachnoiditis. However, the burden is on the claimant to prove contribution. Eleventh, the cross‑reference in section 11 means that proving a factor like infection may require proving that infection itself is service‑related under another SoP, which multiplies the evidentiary burden.

For a claimant seeking to establish a connection between spinal adhesive arachnoiditis and relevant service under this SoP, the first step is to obtain definitive medical evidence that the condition meets the strict definition in subsection 7(2). This requires: (a) imaging (MRI, CT myelogram, or post‑myelogram CT) or surgical findings (from laminectomy or biopsy) that demonstrate chronic inflammation of the arachnoid membrane, fibrosis, and nerve root adhesions in the arachnoid and subarachnoid space; and (b) a clinical neurologist's or neurosurgeon's opinion that the symptoms (e.g., radicular pain, sensory loss, motor weakness, bladder dysfunction) are consistent with the spinal level of the pathology. A report that merely states "MRI shows possible arachnoiditis" without linking to symptoms is insufficient. Next, identify which of the 25 factors in section 9 apply. Review the medical records for evidence of severe spinal trauma (with fracture or neurological dysfunction), spinal surgery (any procedure at the affected site), lumboperitoneal shunt, myelograms (with contrast type and date), intrathecal drug delivery devices, intrathecal chemotherapy, radioactive gold injections, infections (from the specified list), subarachnoid haemorrhage, spinal subdural haematoma, or inability to obtain appropriate management. For each candidate factor, confirm the temporal requirement: 10 years before clinical onset/worsening for trauma, surgery, water‑soluble myelogram (within 10 years), subarachnoid haemorrhage; 2 years for subdural haematoma; 1 year for intrathecal methotrexate/cytosine arabinoside; "at the time" for shunts and intrathecal drug delivery systems; "before" with no limit for oil‑soluble myelogram, Thorotrast, and radioactive gold. Collect contemporaneous medical records, service documents, and any relevant compensation file. For the "inability to obtain appropriate clinical management" factor, obtain independent medical opinion that recognised treatments (e.g., surgical adhesiolysis, pain management) were not available or could not be provided due to service‑related constraints, and that this inability caused worsening of the condition. Ensure that the factor itself is related to service: e.g., the spinal surgery was performed for a service‑incurred condition, or the infection was contracted during service. A medical nexus opinion may be needed. For decision‑makers, compliance means systematically checking each element: (1) Does the claimant have relevant service as defined? If operational service, the balance‑of‑probabilities SoP does not apply. (2) Does the condition meet the definition? Require proof of imaging/surgery and consistent symptoms. (3) Has the claimant raised at least one factor? Examine temporal windows, affected site, and relationship to service. (4) For worsening, confirm that the condition did not arise out of service (subsection 10(2)). (5) Cross‑reference any other SoP under section 11. Document all findings in the decision record. Practitioners should prepare checklists for claimants and stay alert for updates to this SoP; the RMA may issue amendments. If a claim is denied, the reasons must clearly state which factor(s) were not satisfied and why, to enable meaningful review.