Statement of Principles concerning subarachnoid haemorrhage (Balance of Probabilities) (No. 68 of 2019)

The central concept is the “balance of probabilities” standard of proof, which is the lower standard applied to claims involving non-operational service under the VEA and peacetime service under the MRCA, as distinct from the “reasonable hypothesis” standard for operational service. The SoP codifies sound medical-scientific evidence into a set of required factors. Each factor is a risk factor or causal link that the RMA considers more probable than not to be associated with subarachnoid haemorrhage. The factors are: (1) undertaking physical activity of at least six METs within two hours before clinical onset; (2) concussion or moderate to severe traumatic brain injury within 30 days before clinical onset; (3) hypertension at the time of clinical onset; (4) pregnancy-induced hypertension; (5) smoking at least one pack-year before clinical onset and cessation within ten years of onset; (6) antithrombotic therapy within two weeks before onset; (7) taking at least 700 milligrams of aspirin within a seven-day period and last dose no more than seven days before onset; (8) infective intracranial vasculitis; (9) inflammatory vascular disease from a specified list affecting cerebral vessels; (10) for males, average alcohol consumption of at least 200 grams per week for at least six months before onset; (11) for females, at least 150 grams per week for six months; (12) using a drug from the specified list within 72 hours before onset; (13) taking an oral contraceptive pill for at least three weeks before onset; (14) acquired disorder resulting in impaired haemostasis; and (15) inability to obtain appropriate clinical management. The SoP defines key terms in Schedule 1: “MET” is a unit of physical exertion; “pack-year of cigarettes” is defined with a conversion to tobacco weight; “antithrombotic therapy” includes antiplatelet, anticoagulant, and thrombolytic drugs; “specified list of drugs” covers amphetamines, cocaine, dextroamphetamine, methamphetamine, phenylpropanolamine, and ecstasy; “specified list of inflammatory vascular diseases” includes nine conditions such as giant cell arteritis and systemic lupus erythematosus. Importantly, “subarachnoid haemorrhage” is defined autonomously and excludes extension from tumour or intracerebral haemorrhage. The concept of “clinical onset” is not defined in the SoP but is a term of art in veterans’ law; it means when a person first becomes aware of symptoms or when a medical practitioner diagnoses the condition. The note to factor 15 clarifies that it applies only to material contribution or aggravation of a subarachnoid haemorrhage that was suffered or contracted before or during (but did not arise out of) relevant service. This means factor 15 cannot be used to establish initial onset arising out of service.

The SoP directly affects two categories of people: veterans, members of the Forces, and members covered by the MRCA who have non-operational or peacetime service and who suffer subarachnoid haemorrhage; and the decision-makers who must apply the SoP in claims processing. For a veteran who renders eligible war service (for example, service in a declared war but not actual combat operations) or defence service (such as peacetime service in the Australian Defence Force), this SoP sets the legal framework for proving that subarachnoid haemorrhage is service-related. Similarly, a current or former member with peacetime service under the MRCA must point to one of the listed factors to succeed on a balance-of-probabilities claim. The SoP does not apply to operational service (which attracts the reasonable hypothesis standard) or to hazardous service or British nuclear test defence service under the VEA. Nor does it apply to warlike or non-warlike service under the MRCA, for which separate SoPs on the reasonable hypothesis standard may be relevant. For medical professionals, understanding the SoP is important when recording clinical histories: the timing of physical activity, smoking cessation, alcohol consumption, and drug use must be documented precisely to support or refute a factor. For example, the factor for physical activity requires that it occur within two hours before clinical onset; a medical report that does not note the timing may leave the claim unsupported. For legal practitioners and advocates, the SoP provides a checklist of causal factors, but they must also be alert to the exclusion of operational service and the precise definitions in Schedule 1. The instrument also affects the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and the Administrative Appeals Tribunal, which are bound to apply it when determining liability. For veterans and members, the practical effect is that without one of the factors existing, a claim for subarachnoid haemorrhage related to non-operational service will fail unless the person can show the condition was directly caused by service in some other way - but the SoP is intended to exhaust the grounds on which connection can be found on the balance of probabilities. The instrument creates no obligations on healthcare providers or insurers outside the compensation system, but it influences the evidence they must produce.

The SoP itself imposes no direct duties on any person. Rather, it defines the conditions under which the relevant decision-maker (the Repatriation Commission or MRCC) must find that subarachnoid haemorrhage is connected to relevant service. The primary right it implements is the right of a veteran or member to have their claim determined in accordance with the factors set out in section 9, provided the claim relates to relevant service as defined. If at least one factor exists and is related to the person’s service (as required by section 10), then the decision-maker must find in favour of the claimant on the balance of probabilities. Conversely, if no factor exists, the decision-maker must reject the claim, subject to the possibility that the person could establish connection by other evidence not captured in the SoP - but in practice, the RMA determines the SoP based on sound medical-scientific evidence, so a factor outside the SoP would be rare. The decision-maker’s duty is to apply the SoP strictly, including the precise temporal windows, dosage thresholds, and definitions. For example, the factor for aspirin requires at least 700 mg within a seven-day period and the last dose no more than seven days before clinical onset; a decision-maker cannot relax this. The duty to follow the SoP arises under s 120B of the VEA and s 339 of the MRCA. The SoP also confers a right on claimants to have prior inconsistent determinations set aside: the instrument repeals the 2010 SoP and applies to claims made on or after 22 July 2019. A person whose claim was previously rejected under the 2010 SoP may not re-apply unless a new fact arises. The instrument includes a note that alcohol consumption is calculated using the Australian Standard of ten grams per standard drink, which imposes a duty on the decision-maker to use that metric. Similarly, the definition of “pack-year” ties to a specific weight conversion. For claimants, there is an implicit duty to provide evidence of the precise timing and dosage of alcohol, tobacco, drugs, and medications. The note to factor 10 and 11 clarifies the standard drink calculation. The duty to ensure that the factor relates to service is set out in section 10(1): the factor itself must be related to the person’s relevant service. Thus, if a veteran smokes heavily but the smoking commenced after discharge, that factor may be present but not related to service. The instrument also creates a conditional right to rely on other SoPs via section 11: if a factor (such as hypertension) refers to a disease covered by another SoP, that SoP’s factors apply as in force from time to time. This means a claimant can use a chain of SoPs to establish connection.

This instrument does not create any criminal or civil penalties. It is a legislative determination of factors for compensation purposes, not a regulatory or prohibitory instrument. Enforcement mechanisms arise from the underlying Acts: if a decision-maker fails to apply the SoP correctly, the claimant can seek merits review at the Veterans’ Review Board and then appeal to the Administrative Appeals Tribunal, and ultimately to the Federal Court on a question of law. Incorrect application of the SoP can lead to a decision being set aside and remitted for reconsideration. The SoP itself does not contain any enforcement provisions; it is entirely a rule of evidence and law. The practical “penalty” for a claimant is denial of compensation if they cannot satisfy the factors. For a veteran who fraudulently claims a factor, the general provisions of the VEA regarding false statements and penalties for obtaining benefits improperly would apply, but those are not in the SoP. The SoP also interacts with the criminal law indirectly: for example, the factor for drug use (factor 12) lists specified drugs that are illegal in Australia except under prescription. A claimant who admits to using methamphetamine within 72 hours before clinical onset may be concerned about self-incrimination, but veterans’ compensation proceedings are not criminal proceedings and the Commission cannot refer such admissions to police (though there is no explicit prohibition in the SoP). The instrument is enforceable against the Commonwealth decision-makers, as the Administrative Appeals Tribunal and Federal Court can compel compliance. For medical practitioners, failure to provide accurate medical evidence that accords with the SoP’s definitions could result in the claim being rejected, but no direct sanction attaches under this instrument. The SoP is enforced through the compensation system’s internal review and external appeal mechanisms. No private right of action arises from breach of the SoP.

This SoP is one of many issued under the Veterans’ Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. It specifically applies to claims under those Acts. It replaces the 2010 SoP, so any pending or historical claims must be considered under the new instrument if the claim is made on or after 22 July 2019. The instrument expressly provides that if a factor in section 9 refers to an injury or disease for which another SoP exists, that other SoP applies as in force from time to time. For example, factor 3 requires hypertension at the time of clinical onset; hypertension is a disease that has its own SoP. A claimant who has hypertension must therefore also satisfy the factors in the hypertension SoP to show that the hypertension itself is service-related. This creates a cascading, layered causation analysis. The instrument also interacts with the ICD-10-AM classification system for statistical purposes, but the legal definition of subarachnoid haemorrhage in subsection 7(2) overrides the ICD codes. This prevents a narrow reading of the condition based on coding conventions. The SoP is made under subsection 196B(3) of the VEA, which is the balance of probabilities standard. It does not apply to claims decided under the reasonable hypothesis standard, which uses separate SoPs (made under subsection 196B(2)). Practitioners must ensure they use the correct SoP: a veteran with operational service must use the reasonable hypothesis SoP for subarachnoid haemorrhage (likely No. 67 of 2019 or similar). The SoP also interacts with state workers’ compensation or motor vehicle accident schemes, but it does not bind those schemes. In federal law, the SoP is binding on the Repatriation Commission, MRCC, and tribunal. It does not affect private tort claims, which are governed by separate legislation. The definition of “relevant service” in Schedule 1 excludes operational service, hazardous service, and British nuclear test defence service, meaning that claims involving those types of service must be determined under different standards. For MRCA members with peacetime service, the SoP applies but for warlike or non-warlike service, the reasonable hypothesis SoP applies. The instrument also references the Australian Standard for alcohol calculation, linking to a non-binding standard. It does not incorporate the standard by reference but uses it as a calculation tool.

This instrument is a new determination that repeals and replaces the previous Statement of Principles concerning subarachnoid haemorrhage No. 68 of 2010 (Federal Register of Legislation No. F2010L02307). The instrument itself has not been amended since its commencement on 22 July 2019. The Repeal section 4 identifies the prior instrument and its registration number. The RMA has the power to revoke or amend SoPs from time to time as medical evidence evolves. The 2019 version differs from the 2010 version in several respects: the inclusion of factor 7 for aspirin at a defined threshold (700 mg within seven days) may be new; the alcohol thresholds (200g for males, 150g for females) might have been adjusted; the definition of “pack-year” has been refined; and the list of specified drugs and inflammatory vascular diseases may have been updated. The instrument is a standalone legislative instrument registered on the Federal Register of Legislation. Because it is made under a delegation of legislative power, it is subject to disallowance by either House of Parliament under the Legislation Act 2003, though that is rare for SoPs. The instrument includes a note that alcohol consumption is calculated using the Australian Standard of ten grams per standard alcoholic drink, which provides a universal metric. The previous SoP was repealed in its entirety. There is no indication of any transitional provisions; claims made after commencement are governed by the new SoP. For claims lodged before commencement that have not yet been determined, s 5 may operate to apply the new SoP if the claim is to which s 120B or s 339 applies; but the general rule is that a delegate applies the law at the time of decision. The instrument does not contain a transitional application clause, so decision-makers would apply the SoP in force at the time of their determination.

This instrument itself has not been litigated, as it has been in force only since 2019. However, the 2010 predecessor SoP for subarachnoid haemorrhage was the subject of multiple decisions in the Administrative Appeals Tribunal, the Federal Court, and the High Court on various legal issues, such as the meaning of “clinical onset”, the sufficiency of evidence for smoking cessation timing, and the interaction of alcohol consumption factors with other SoPs. The instrument does not reference any cases. Claimants and respondents frequently dispute the temporal windows and the standard of proof. The definition of “subarachnoid haemorrhage” excluding extension from intracerebral haemorrhage has been tested to ensure it aligns with medical classification. The factor for “inability to obtain appropriate clinical management” has been litigated to clarify that it only applies to material contribution or aggravation of a pre-existing condition, not to initial onset. Section 11, regarding the cascade to other SoPs, has been the subject of litigation in the context of hypertension and smoking SoPs. The SoP is binding on tribunals, but external review bodies still interpret its terms. The High Court in Repatriation Commission v Deledio and subsequent cases established the framework for applying SoPs, but the SoP itself is not overturned by litigation unless it is ultra vires. As of the writing of this analysis, there is no reported decision specifically striking down any provision of the 2019 SoP. The instrument is likely to be interpreted according to ordinary principles of statutory construction, with technical medical terms given their ordinary medical meaning. The notes in the instrument (such as examples of antithrombotic therapy) are not binding but aid interpretation. The replacement of the 2010 SoP with the 2019 version may have been prompted by new evidence or litigation outcomes, but the RMA does not disclose its reasons beyond stating that it is satisfied on sound medical-scientific evidence.

Several traps exist for claimants and advisers. First, the definition of “relevant service” is restrictive: it excludes operational service, hazardous service, and British nuclear test defence service. A veteran with operational service cannot use this SoP; they need the reasonable hypothesis version. A practitioner who mistakenly argues under this SoP for an operational service claim will lose. Second, factor 1 for physical activity requires at least six METs within two hours before clinical onset. The definition of MET is given, but “physical activity” is not further defined. Many claimants are not aware of exactly when clinical onset occurred: a subarachnoid haemorrhage may present with a sudden headache, but the precise timing is often unknown. The two-hour window is very strict. Third, factor 5 for smoking includes a ten-year cessation window. If a person stopped smoking ten years and one day before clinical onset, the factor does not apply, even if they smoked heavily for decades. The smoking calculation uses pack-years, requiring evidence of daily consumption over time; self-reports may be insufficient. Fourth, the aspirin factor (7) requires at least 700 mg within a seven-day period and the last dose no more than seven days before onset. A typical over-the-counter aspirin tablet is 100 mg, so seven tablets in a week is 700 mg. But if the person took 100 mg daily for seven days, that meets the threshold only if the last dose was within seven days before onset. If they stopped aspirin a week before, the factor does not apply. Also, note that aspirin is also an antithrombotic therapy and may fall under factor 6; but factor 6 has a two-week window, while factor 7 has a stricter dosage and timing. Factor 6 includes aspirin but does not have a dosage threshold; factor 7 is an alternative. Claimants should consider which factor better suits their evidence. Fifth, factor 10 and 11 require “consuming an average of at least X grams per week for a continuous period of at least the six months before the clinical onset”. “Average” and “continuous” can be interpreted strictly. A binge drinker who drinks heavily but not steadily might not meet the continuous requirement. The calculation uses the Australian Standard of ten grams per standard drink, which may underestimate consumption if the person drinks high-strength beer or wine. Sixth, the drug factor (12) uses “use” rather than “abuse” and covers only the specified list. Use of marijuana or heroin is not included, so if those drugs are implicated, factor 12 does not apply. Factor 12 applies within 72 hours before clinical onset; a drug test may be required. Seventh, factor 15 for inability to obtain appropriate clinical management only applies to material contribution or aggravation of subarachnoid haemorrhage that existed before or during (but did not arise out of) relevant service. It does not help a claimant whose subarachnoid haemorrhage first occurred on service. Eighth, the definition of subarachnoid haemorrhage excludes extension of bleeding from a cerebral tumour or from an intracerebral haemorrhage. If a person has an intracerebral bleed that extends into the subarachnoid space, the condition is not covered by the SoP at all. Ninth, the SoP does not include a factor for family history or genetic predisposition (such as connective tissue disorders or aneurysm). Those cannot be used to link to service unless they are themselves service-related. Tenth, the instrument uses ICD-10-AM code I60 or S06.6, but the definition in subsection 7(2) overrides the code, so a condition that fits the code but not the definition (traumatic subarachnoid haemorrhage from an external cause may be excluded if it is an extension of intracerebral haemorrhage?) Actually, traumatic subarachnoid haemorrhage is often coded S06.6, but the definition does not exclude trauma explicitly; it only excludes extension from tumour or intracerebral haemorrhage. Traumatic subarachnoid haemorrhage may be covered, but careful analysis is needed.

For claimants and their representatives, compliance means assembling evidence that at least one factor in section 9 exists and that the factor is related to the person’s relevant service. The first step is to identify the type of service: if it is operational service, this SoP does not apply; the practitioner must locate the reasonable hypothesis SoP. If it is non-operational or peacetime service, proceed. The second step is to obtain a precise diagnosis that meets the definition in section 7(2): evidence must confirm bleeding into the intracranial subarachnoid space and exclude extension from a cerebral tumour or intracerebral haemorrhage. CT scans, lumbar puncture, or autopsy reports are typical. The third step is to take a detailed medical and lifestyle history covering the relevant windows. For smoking, document start and stop dates, average daily consumption, and convert to pack-years. For alcohol, record average weekly consumption over the six months before clinical onset, using standard drink equivalents. For physical activity, note the exact activity, its MET value (a list of MET values for activities can be referenced from standard tables), and the time relative to symptom onset. For medications, list all drugs taken, including over-the-counter aspirin, with doses and dates. The fourth step is to ensure any factor that refers to another disease (hypertension, inflammatory vascular disease, etc.) is itself service-related by satisfying the factors in the relevant SoP for that disease. The fifth step is to provide a chronology linking the factor to the person’s service. For example, if smoking is the factor, the smoking must have occurred during or as a result of service. If the person started smoking before service and continued, the onset of the habit before service may weaken the connection; the factor must be related to service, not just present. The sixth step is to consider whether inability to obtain appropriate clinical management (factor 15) is relevant, but only if the subarachnoid haemorrhage existed before or during service but not arising out of service, and the failure to obtain management materially contributed to its aggravation. The decision-maker must be satisfied on the balance of probabilities. The SoP allows a chain of causation through section 11. Practitioners should prepare a written submission mapping each factor to the evidence. Compliance with this SoP does not guarantee success but provides a structured pathway. The instrument itself does not require any notification or registration; it is applied by the decision-maker. For medical witnesses, providing a report that addresses each possible factor can help. The key is to be precise about dates and dosages. The notes in the SoP (e.g., examples of antithrombotic therapy) are not exhaustive but indicative; if a drug is not listed, it may still fall within the definition if it is a drug for treatment or prophylaxis of a thrombotic event. Similarly, the specified lists for drugs and inflammatory vascular diseases are exhaustive. If a condition is not on the list, factor 9 does not apply. Lastly, if the claim is based on factor 6 (antithrombotic therapy), ensure the therapy was ongoing within two weeks before onset and that the therapy was for a thrombotic event; the note says “including antiplatelet drugs, anticoagulants and thrombolytic agents”. If the therapy was for a different purpose (e.g., low-dose aspirin for headaches), it may still count as antithrombotic therapy if taken for prophylaxis? The definition does not require a prescription; it includes any taking of a drug for the treatment or prophylaxis of a thrombotic event. This could be interpreted broadly.