Statement of Principles concerning subdural haematoma (Balance of Probabilities) (No. 101 of 2019)

This SoP directly affects veterans and members of the Australian Defence Force who have rendered "relevant service" as defined: that is, eligible war service (other than operational), defence service (other than hazardous and British nuclear test defence service) under the VEA, or peacetime service under the MRCA. Because it operates on the balance of probabilities standard, it primarily impacts claimants whose service is peacetime or non-operational, where the reasonable hypothesis standard does not apply. Those with operational or hazardous service are covered by separate SoPs (likely made under subsection 196B(8) or (14)). The instrument also binds the Repatriation Commission, the Military Rehabilitation and Compensation Commission, and the Veterans' Review Board when determining claims. Medical practitioners who provide evidence for claims must be familiar with the exact definitions. Claimant advocates and legal representatives need to know which factors are available and how to prove each element. The SoP indirectly affects family members through dependency claims, as death from subdural haematoma is covered. The private sector is not directly regulated, but the SoP may influence treatment decisions where clinical management is a factor (see section 9(9) and section 10(2)). The Repatriation Medical Authority, which made the instrument, is the primary rule-maker. The instrument also interacts with the broader system of SoPs: factor 11 provides that if a factor refers to an injury or disease covered by another SoP, the factors in that other SoP apply as in force from time to time. This means that a claimant who relies on, for example, alcohol use disorder (factor 9(1)(f)) may need to satisfy the SoP for alcohol use disorder as well, creating a cascading burden. The instrument thus affects not only the primary disease but also secondary conditions.

The primary duty imposed by the SoP is on the claimant: they must establish that at least one of the listed factors in section 9 exists, and that factor is related to their relevant service (section 10(1)). The factors are exhaustive save for the inability to obtain appropriate clinical management factor (9(9)), which only applies to material contribution or aggravation of a pre-existing subdural haematoma that did not arise out of service (section 10(2)). For example, a claimant must show either head trauma within two months before clinical onset (intracranial), or intracranial neurosurgery within two weeks, active epilepsy, epileptic seizure within two months, specified dementia, alcohol use disorder, a cerebrospinal procedure within two months, spinal trauma within two weeks (spinal only), antithrombotic therapy within two weeks, aspirin intake of at least 700 mg in a seven-day period with last dose within seven days, an acquired disorder causing impaired haemostasis, haemodialysis within one week, a cerebrospinal fluid shunt, or the clinical management factor. The claimant bears the evidential burden. The decision-maker has a corresponding duty to apply the SoP and may only find a causal connection if a factor is satisfied. The right of the claimant is to have the claim assessed in accordance with the instrument; non-compliance by the decision-maker is reviewable. The instrument does not create a right to compensation; that arises from the VEA and MRCA themselves. The instrument also gives the Repatriation Medical Authority the power to repeal and replace SoPs, which it did here. There is a duty on medical expert witnesses to apply the definitions precisely. The "inability to obtain appropriate clinical management" factor is notable because it applies only to aggravation cases, and it requires that the subdural haematoma was suffered or contracted before or during (but did not arise out of) service. This creates a separate pathway for worsening of a pre-existing condition.

The Statement of Principles itself does not create criminal offences or civil penalties. Enforcement operates through the claims and review process. If a claimant or medical practitioner provides false or misleading information to obtain a benefit, that may attract penalties under the Criminal Code (see s 137.1, 137.2, and 134.1 of the Criminal Code Act 1995) or under s 231 or s 232 of the VEA. The Repatriation Commission may also recover overpayments. The key practical enforcement mechanism is the binding nature of the SoP: if a decision-maker fails to apply the correct factors or misapplies a definition, the decision may be set aside on review by the Veterans' Review Board or the Administrative Appeals Tribunal. Judicial review under the Administrative Decisions (Judicial Review) Act 1977 or under s 75 of the Constitution is available for jurisdictional error, though the SoP itself is a legislative instrument that cannot be invalidated lightly. The instrument includes a section 11 cross-reference to other SoPs, creating a duty to apply those as in force; failure to do so may also be an error. There is no direct enforcement against the Repatriation Medical Authority for making the SoP; it is subject to the Legislative Instruments Act 2003 (now the Legislation Act 2003) regarding registration and tabling. The practical "penalty" for a claimant who cannot satisfy any factor is that their claim fails. This creates a strong incentive to gather precise medical evidence. The instrument thus enforces a standardised causal methodology across all claims, reducing inconsistency but also imposing a high threshold for atypical presentations.

The SoP operates within the framework of the Veterans' Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004. Specifically, it is made under s 196B(3) of the VEA, which deals with SoPs on the balance of probabilities. It applies to claims under s 120B of the VEA (the standard of proof provision for non-operational service) and s 339 of the MRCA (equivalent provision for peacetime service). The instrument explicitly repeals the earlier SoP No. 34 of 2011, so that prior SoP no longer applies. The SoP interacts with other SoPs through section 11: if a factor in this SoP refers to an injury or disease that has its own SoP (e.g., alcohol use disorder, dementia, epilepsy), the factors in that SoP must be satisfied for that factor to be established. This creates a chain of causation. The SoP itself does not conflict with common law tort principles because it is a statutory compensation scheme; it is not intended to replicate negligence or workers' compensation. The definitions in the dictionary interact with ICD-10-AM coding but the SoP explicitly says that the meaning is its own, not the ICD-10-AM meaning. The instrument is subject to the Legislation Act 2003 regarding registration and disallowance. It interacts with the Administrative Appeals Tribunal Act 1975 through review mechanisms. The SoP also interacts with the Repatriation Medical Authority's own procedural rules; the basis for determining factors is stated to be "sound medical-scientific evidence available" (section 8). The instrument does not purport to override the VEA or MRCA; it is a subordinate tool for applying the causation standard. It also interacts with the common law concept of "balance of probabilities" which is codified in the VEA. The definition of "relevant service" excludes certain categories, so those types of service are governed by other SoPs or standards. There is no explicit interaction with state laws, but the federal nature of the scheme means state workers' compensation does not apply to these claims.

This instrument (No. 101 of 2019) was made on 18 October 2019 and commenced on 18 November 2019. It repeals the earlier Statement of Principles concerning subdural haematoma No. 34 of 2011 (F2011L00786), which was made under both subsections 196B(3) and (8) of the VEA. The earlier SoP covered both the balance of probabilities and reasonable hypothesis standards; the new instrument only covers the balance of probabilities standard, indicating that a separate instrument (likely No. 100 of 2019) deals with the reasonable hypothesis standard. The instrument itself does not record any intermediate amendments; it is a direct replacement. The instrument was published on the Federal Register of Legislation. The parent Act, the VEA, has been amended many times since 1986, but the SoP does not reflect those changes directly. The instrument reflects the current view of the Repatriation Medical Authority on the medical-scientific evidence as at 2019. The Authority is required to review SoPs periodically, and the repeal of the 2011 instrument suggests that new evidence prompted the update. The instrument does not specify what evidence changed. The amendment history of the VEA itself is not relevant to the SoP's operation, but amendments to the VEA that alter s 196B or s 120B could affect the instrument's legal force. As at the date of the instrument, no further amendments have been noted. The instrument is a standalone legislative instrument and does not incorporate amendments from other sources except through the cross-reference in section 11 to other SoPs, which themselves may be amended over time. This dynamic incorporation by reference is a notable feature.

The source instrument does not name or cite any judicial decisions. No litigation is recorded in the SoP text. The earlier SoP (No. 34 of 2011) may have been considered in decided cases, but the current instrument is new and has not yet been the subject of reported decisions. It is well established in the Federal Court and High Court that Statements of Principles are valid legislative instruments provided they are based on sound medical-scientific evidence and do not exceed the power under s 196B. Cases such as Repatriation Commission v Vietnam Veterans' Association of Australia and others have considered the scope of the Repatriation Medical Authority's discretion, but those are not referenced here. The instrument's definitions have not been judicially tested. However, administrative tribunals have frequently considered SoPs. The interplay between factor 9(1) and factor 9(2) may be litigated where the time windows are missed. The definition of "head trauma" and "trauma to the spinal region" could be contested. The instrument's exclusion of extensions from subarachnoid or intracerebral haemorrhage could also be the subject of dispute in complex cases. The requirement that aspirin intake be at least 700 mg within a seven-day window with last dose within seven days is precise and likely to be tested. The "inability to obtain appropriate clinical management" factor is notoriously difficult and has been litigated under other SoPs. Overall, the instrument itself is a recent instrument and the litigation history directly concerning it is limited. Courts and tribunals will interpret the instrument according to its text, having regard to the definitions in the Dictionary. The absence of cited cases means the instrument is relatively fresh and its provisions are yet to be scrutinised in depth.

Several subtle points may trip up claimants and decision-makers. First, the instrument distinguishes between intracranial and spinal subdural haematoma. Factor 9(1) applies only to intracranial subdural haematoma; factor 9(3) applies only to spinal. If the location is not clearly identified, the wrong factor list may be used. Second, time windows are strict: head trauma must be within two months before clinical onset; intracranial neurosurgery or penetrating cranial trauma within two weeks; cerebrospinal procedure within two months; spinal trauma within two weeks; antithrombotic therapy within two weeks; aspirin at least 700 mg within a seven-day period and last dose within seven days; haemodialysis within one week. These are not ranges; the onset must occur after the event. Third, "acquired disorder resulting in impaired haemostasis" is not defined beyond examples (thrombocytopenia, cirrhosis, aplastic anaemia). The phrase "acquired" excludes congenital bleeding disorders, but the SoP does not say that explicitly. Fourth, factor 9(1)(c) requires "active epilepsy" which means at least one seizure per year. If the claimant has epilepsy but fewer than one seizure per year, the factor does not apply. Fifth, factor 9(1)(e) requires a "specified form of dementia" from a closed list; Alzheimer disease requires "major neurocognitive disorder", not just mild cognitive impairment. Sixth, factor 9(5) aspirin threshold: note that aspirin taken as part of antithrombotic therapy also may satisfy factor 9(4) (antithrombotic therapy), but factor 9(5) is separate and has a different dose threshold. Claimants may double-count, but only one factor needs to be satisfied. Seventh, factor 9(9) (inability to obtain appropriate clinical management) only applies to material contribution or aggravation of pre-existing subdural haematoma where the haematoma was suffered or contracted before or during (but did not arise out of) relevant service. This is a narrow gateway. Eighth, section 11 means that if a factor like alcohol use disorder is relied upon, the claimant must satisfy the SoP for alcohol use disorder itself, which may have separate thresholds. Ninth, the instrument's definition of "subdural haematoma" excludes extension from subarachnoid haemorrhage or intracerebral haemorrhage; if the bleeding originated elsewhere, the SoP does not apply. Tenth, the instrument is for balance of probabilities only; claims for operational service will need a separate SoP and a different standard.

Compliance with the SoP is required for claimants seeking to establish a causal link between subdural haematoma and relevant service. The first step is to determine whether the subdural haematoma is intracranial or spinal, and whether the claim concerns clinical onset or death. For death cases, death must be contributed to by the haematoma via a terminal event. The claimant must gather medical evidence to satisfy at least one of the factors in section 9, and demonstrate that the factor related to their service. Medical practitioners should document the date of clinical onset precisely, as time windows are critical. For head trauma, the exact date and nature of trauma must be recorded. For antithrombotic therapy, drug names, doses, and dates are needed. The aspirin factor requires proof of cumulative intake over a week. For active epilepsy or dementia, specialist diagnosis is necessary. Claimants should also check if any underlying condition (e.g., alcohol use disorder) has its own SoP; if so, evidence satisfying that SoP must be provided. The "inability to obtain appropriate clinical management" factor should only be relied upon as a last resort, given its narrow application. Decision-makers must apply the definitions from the Dictionary strictly; they cannot accept novel causal pathways not listed. The instrument imposes a checklist approach: verify location (intracranial or spinal), identify candidate factors, confirm time frames, confirm relationship to service. For legal representatives, it is prudent to obtain a detailed medical report that covers each potential factor and explains why others do not apply. The instrument is repealed and replaced periodically; always check the current version. The SoP does not change the underlying need for service connection; it merely standardises the medical evidence required. Compliance is a matter of documentary proof, not of behaviour, since the haematoma is the condition. The main cost is the time and expense of obtaining precise medical evidence, which may be significant for claimants. The instrument reduces uncertainty for decision-makers but increases the burden of proof on claimants who fall outside the listed factors. For policy analysts, the SoP reflects a trade-off between consistency and individualised justice.