Veterans' Entitlements (Expanded Access to Non‑Liability Health Care for Mental Health Treatment) Determination 2017

Non‑liability health care. This concept is central to the Determination. Under Part V of the Act, health care is typically provided when a condition is accepted as related to service (liability basis). Non‑liability care, enabled by section 88A, bypasses that requirement. The instrument specifies classes for which the Commission must provide, arrange, or accept financial responsibility irrespective of service link. The term “non‑liability” does not appear in the instrument itself but is used in the White Card description (Repatriation Health Card - For Specific Conditions) and in the note to the purpose section referencing “non‑liability health care basis”.

Mental health condition. Section 8 defines this as “a mental disorder that could be assessed and diagnosed by a mental health professional in accordance with recognised criteria for such assessment and diagnosis.” A mental health professional is limited to a medical practitioner (GP or psychiatrist) registered with AHPRA, or a psychologist registered with AHPRA holding a post‑graduate qualification in clinical psychology. The note references DSM‑5 and ICD‑10‑AM as examples of recognised criteria. This definition is broad and does not require a formal diagnosis at the time of request; it only requires that the condition could be assessed and diagnosed. This creates a low threshold for eligibility but also introduces reliance on professional interpretation. The instrument does not require the condition to be a specific ICD code or to have a particular severity.

Classes of persons. Four classes are specified:

• Veterans: as defined in sections 80 and 81 of the Act (essentially those who have rendered eligible war service, and certain others) - section 9.
• Past and current members of the Defence Force with continuous full‑time service, excluding those already covered by paragraphs 88A(1)(a), (b), or (c) of the Act (which cover veterans and certain other persons) - section 10.
• Transitioning members: persons who were members of the Defence Force rendering continuous full‑time service, were issued with a White Card on transition, and use that White Card to access treatment for a mental health condition - section 10A.
• Reservists: members of the Reserves (as defined in the Defence Act 1903) who, on a reserve service day, rendered border protection service, rendered disaster relief service, or were involved in or witnessed a serious training accident - section 10B.

White Card. Defined as the Repatriation Health Card - For Specific Conditions, issued to indicate eligibility for funding of, among other things, treatment for a mental health condition on a non‑liability health care basis. The card is a key eligibility document for transitioning members.

Backdating. Sections 12 and 10B(2) allow eligibility for treatment to be backdated up to 3 months before the request date, with caps: 1 July 2017 for veterans and continuous full‑time members; 1 July 2018 for reservists. For transitioning members under section 10A, the backdating runs 3 months before the date treatment was first accessed using the White Card. The instrument preserves any backdating entitlement under the revoked instrument even if earlier than 1 July 2017 (section 12(2)).

Request process. Section 11 allows a request to be made in writing, in person, or by phone call. Written requests can be lodged electronically via fax, internet, or email to nlhc@dva.gov.au, as approved under the Veterans’ Entitlements (Electronic Lodgement Approval) Instrument (No. 2) 2016. The request is taken to be received on the day it is received at the approved electronic address.

These concepts define the boundaries of the expanded access. The definitional choices, particularly the broad mental health condition and the reliance on Commission opinions for border protection, disaster relief, and serious training accidents, introduce administrative discretion and potential inconsistency. The backdating caps create a cut‑off that may disadvantage persons who could have sought treatment earlier but did not.

Veterans (as defined in the Act). Any person who is a veteran under sections 80 and 81 of the Act (primarily those who have rendered eligible war service) and who makes a request to an office of the Department in Australia qualifies. This group is likely to include older veterans with service in conflicts such as World War II, Korea, Vietnam, and peacekeeping missions. The Determination does not require the mental health condition to be linked to that service, so veterans with non‑service‑related conditions (e.g., depression arising from family issues) now have access to DVA‑funded treatment.

Past and current members of the Defence Force with continuous full‑time service. Section 10 specifies a class: a person who is or has been a member of the Defence Force rendering continuous full‑time service, other than a person already covered by paragraphs 88A(1)(a), (b), or (c) of the Act. This includes current serving members (including those in peacetime service) and former members who did not qualify as veterans (e.g., those who served after the Vietnam era or in non‑warlike operations). It excludes those who are veterans or who are covered by other paragraphs, such as members of the Reserves not on continuous full‑time service (those are covered by section 10B instead). The effect is to cover the bulk of the ADF workforce who serve full‑time, whether in permanent or continuous full‑time reserve service.

Transitioning members. Section 10A covers a person who was a member of the Defence Force rendering continuous full‑time service, was issued with a White Card on transition, and uses that White Card to access treatment. This class is particularly significant because it captures members during the critical transition period from military to civilian life, when mental health risks are elevated. The White Card is issued on transition, so the class only applies to those who have actually separated or are in the process of separating and who have received the card.

Reservists with specific service. Section 10B covers members of the Reserves who, on a reserve service day, rendered border protection service, disaster relief service, or were involved in or witnessed a serious training accident. These definitions require the opinion of the Repatriation Commission, meaning that eligibility is not automatic based on service type; the Commission must form an opinion that the service had the purpose of securing Australia’s borders, that the area was a disaster area and service was part of the relief effort, or that an accident occurred during a training exercise and was serious (including death or serious injury). This creates a gatekeeping function and potential for dispute.

The Repatriation Commission. The Commission is the body corporate continued under section 179 of the Act. It is responsible for making opinions about service types, providing or arranging treatment, and administering the White Card scheme. The Determination imposes a duty to provide treatment to eligible persons under the referenced schemes.

Health care providers. Doctors, psychologists, hospitals, and other providers who enter into arrangements with the Commission or who provide treatment under the Treatment Principles are affected because they will see an increase in DVA‑funded patients. They must comply with the Treatment Principles, the Repatriation Pharmaceutical Benefits Scheme, and the Repatriation Private Patient Principles.

Taxpayers and the Australian Government. The expanded access increases government expenditure on mental health treatment. While the official purpose is to improve veteran and defence member well‑being, the cost is ultimately borne by taxpayers. The instrument does not contain a budget impact statement or cap on funding. The Treatment Principles may contain utilisation controls, but those are not in this Determination.

Right to request treatment. The central right created by the Determination is the right of a person in a specified class to make a request to be provided with treatment for a mental health condition. This right is triggered by making a request in writing, in person, or by phone to an office of the Department in Australia (section 11). For veterans, continuous full‑time members, and reservists, the request is the act that establishes eligibility. For transitioning members, the right arises upon using the White Card to access treatment.

Right to treatment without service link. The purpose section (section 5) states that the instrument enables persons to receive treatment for a mental health condition irrespective of whether the condition is linked to military service. This overrides the usual requirement under Part V of the Act that treatment be for an accepted service‑related condition. However, the right is not absolute: the treatment must be of a kind specified in Part 3, which is treatment that can be applied under the Treatment Principles, the Repatriation Pharmaceutical Benefits Scheme, the Repatriation Private Patient Principles, or an arrangement between the Commission and a health care provider. So the substantive scope of treatment is defined elsewhere.

Right to backdating. Section 12(1) provides that a person under section 9 or 10 is eligible for treatment from 3 months before the date the request is received, provided that date is no earlier than 1 July 2017. Section 12(2) preserves any entitlement under the revoked instrument to longer backdating. For reservists under section 10B(2), the backdating is also up to 3 months before the request, but capped at 1 July 2018. For transitioning members under section 10A(2), eligibility runs for 3 months before the date treatment was first accessed using the White Card. This asymmetry may create confusion: transitioning members do not need to make a separate request; their use of the card itself triggers eligibility retrospectively.

Duty of the Repatriation Commission. The Commission is required to provide, arrange, or accept financial responsibility for treatment in accordance with paragraph 2.5A of the Treatment Principles (see note to section 5). The Commission must also form opinions on border protection service, disaster relief service, and serious training accident (definitions in section 7). These opinions are subject to review under the Act.

No duty on the individual to prove service connection. The Determination deliberately removes the need to link the condition to service. This reduces the administrative burden on individuals and avoids the need for a formal claim for acceptance of a service‑related condition. However, the individual must still provide sufficient information to demonstrate they are in a specified class: proof of veteran status, continuous full‑time service, possession of a White Card, or that they are a reservist who rendered one of the listed services.

Limitations. The right to treatment is not unlimited. The mental health condition must be assessable by a mental health professional as defined. The treatment must be within the scope of the Part 3 instruments. The request must be made in the manner prescribed. For reservists, the Commission’s opinion is required and is a prerequisite. There is no explicit right to a particular type of treatment; the Treatment Principles will govern what is considered reasonable and necessary.

The Determination itself does not create any criminal offences or civil penalties. It is a specification instrument under the Act, delegating authority to the Commission to provide treatment. Enforcement mechanisms arise from the broader Act and general law.

False statements and fraud. If a person makes a false or misleading statement to obtain treatment (e.g., claiming to be a veteran when not, or misrepresenting service history to qualify under section 10B), they may be liable under section 220 of the Veterans’ Entitlements Act 1986 (false statements) or under the Criminal Code (Cth) provisions on fraud. The Determination does not reference these provisions, but they apply as background law. A person who fraudulently obtains DVA‑funded treatment could be required to repay the cost and may face criminal prosecution.

Recovery of overpayments. If the Commission provides treatment to a person who is not in a specified class, or for a condition that does not meet the definition of mental health condition, the Commission may seek to recover the cost under Part V of the Act or under general administrative law. The Determination does not contain a specific recovery mechanism.

Review rights. Persons who are refused treatment, or who dispute the Commission’s opinion on a matter such as whether service was border protection or whether a training accident was serious, may seek internal review and then review by the Administrative Appeals Tribunal under the Act. The Determination itself does not create merits review rights, but the Act provides for them.

No enforcement against the Commission. There is no explicit penalty if the Commission fails to provide treatment within a reasonable time. The person could complain to the Ombudsman or seek judicial review for unreasonable delay. However, the Determination is framed in permissive terms: the Commission is to provide treatment “in accordance with paragraph 2.5A of the Treatment Principles”. This paragraph is not reproduced, so the precise obligation is uncertain. The instrument does not create an individual right of action for damages.

Compliance burden for providers. Health care providers who treat DVA patients under this Determination must comply with the Treatment Principles, the Repatriation Pharmaceutical Benefits Scheme (for medications), and the Repatriation Private Patient Principles. Failure to comply could result in the Commission terminating arrangements or seeking recovery of overpayments. Providers must also ensure they are dealing only with eligible persons; while the White Card provides some assurance, the provider should verify eligibility with the Department.

Audit and oversight. The Commission may audit claims and requests to ensure compliance. The instrument does not specify record‑keeping requirements, but the Treatment Principles likely do. Given the broad definition of mental health condition and the lack of a formal diagnosis requirement, there is a risk of abuse or over‑servicing. The Commission’s ability to monitor and enforce is limited by the administrative resources allocated.

Veterans’ Entitlements Act 1986 (the Act). This is the primary Act under which the Determination is made. Section 88A(1)(a) and (d) authorises the specification of classes of persons for non‑liability health care. The Determination refers extensively to other provisions: sections 80 and 81 (definition of veteran), section 90 (Treatment Principles), section 90A (Repatriation Private Patient Principles), section 91 (Repatriation Pharmaceutical Benefits Scheme), section 85 (electronic lodgement), Part V (health care generally), and sections 179 (Repatriation Commission). The Determination operates as a subordinate instrument; the Act provides the framework for review, penalties, and administration.

Treatment Principles (document under section 90 of the Act). The Determination specifies that treatment is “under, and subject to” the Treatment Principles. This means the Treatment Principles determine what specific treatments are covered, for how long, and under what conditions. The Determination does not override the Treatment Principles; it merely enables persons to access them without needing a liability‑based acceptance. Practitioners must consult the Treatment Principles to know what is funded (e.g., number of psychology sessions, medications covered).

Repatriation Pharmaceutical Benefits Scheme. Medications for mental health conditions must be listed on this scheme to be funded. The Determination does not list specific drugs; it relies on the scheme.

Repatriation Private Patient Principles. If a person receives treatment as a private patient in a hospital, these principles apply. The Determination does not create an independent right to private hospital treatment; that is governed by these principles.

Defence Act 1903. The definition of “Reserves” is imported from that Act. Any change to that definition would affect who qualifies under section 10B.

Veterans’ Entitlements (Electronic Lodgement Approval) Instrument (No. 2) 2016. This instrument approves electronic lodgement of requests under section 85(2) of the Act. The Determination explicitly references this to allow written requests via fax, internet, or email.

Previous Determination (revoked). The 2016 instrument (R34) is superseded but has transitional force. Applications pending at commencement are completed under the 2017 Determination. The backdating provisions in section 12(2) preserve entitlements under the 2016 instrument for full 3‑month backdating even if earlier than 1 July 2017, so there is continuity for those who had already applied.

Interaction with other health schemes. The Determination does not address coordination with Medicare, private health insurance, or state‑based mental health schemes. In practice, DVA treatment is generally primary, but if a person also has Medicare or private cover, there may be coordination rules under the Treatment Principles. The instrument is silent on this, so practitioners must look to the Act and Treatment Principles.

Privacy and information sharing. The Determination does not impose privacy obligations. The Act and the Privacy Act 1988 apply. The Commission will collect personal information including mental health condition details when a request is made. Use and disclosure must comply with those laws.

The Determination was made in 2017 and commenced on 1 July 2017 (see backdating cap date). It revoked and replaced the Veterans’ Entitlements (Extension of Non‑Liability Health Care for Mental Health Treatment) Determination 2016 (Instrument 2016 No. R34). The text provided does not contain any subsequent amendments. However, it is known that the instrument has been amended at least once: the version current on the Federal Register of Legislation as of 2025 shows amendments including insertion of section 10A and 10B and adjustments to backdating dates. But the source text provided is the original instrument, so we must rely on that. The source contains sections 10A and 10B (these were likely added by later amendment but are present in the text supplied). So the instrument as supplied includes 10A and 10B, which were not in the original 2016 instrument. Therefore the supplied text is already a consolidated version. The amendment history from the source can only be inferred: the transitional provision (section 6) acknowledges the 2016 instrument; sections 10A and 10B were presumably added after 2016 but before 2017? Actually the instrument is from 2017 and already includes them. So the 2017 instrument is itself an expansion of the 2016 instrument. No further amendment history can be derived from the text.

In practice, the Determination may have been amended further to adjust classes or dates, but that is beyond the source. The analyst should note that readers must check the current version on the Federal Register of Legislation.

The source text does not refer to any litigation. No cases are cited or mentioned. This is common for legislative instruments that specify classes rather than create standalone rights. However, the Determination may have been the subject of judicial review or AAT decisions concerning refusal of treatment, the Commission’s opinion on service types, or the interpretation of “mental health condition”. Without citing specific cases (which the source does not), we can note that litigation is likely to arise from the discretionary elements: the Commission’s opinion on whether service was border protection or disaster relief, or whether a training accident was serious. A person who is denied eligibility on the ground that the Commission did not form an opinion in their favour could seek review. Also, disputes could arise over the backdating caps or the definition of mental health condition if the Commission takes a narrow view of “could be assessed and diagnosed”.

The instrument is relatively narrow and has been in operation since 2017, so there may be a body of tribunal decisions. However, this deep dive cannot invent them. The reader is advised to search the AAT database for decisions involving “NLHC” or “White Card mental health” for practical guidance. The lack of cited litigation in the instrument itself suggests that most eligibility decisions are resolved administratively.

Backdating limits are date‑based, not just time‑based. Section 12(1) caps backdating at 1 July 2017 for veterans and continuous full‑time members, even if the request is made later (e.g., in 2025, the backdating is still only to 1 July 2017 at the earliest). For reservists, the cap is 1 July 2018. This means someone with a mental health condition that existed before those dates cannot get treatment funded for the period before the cap. The transitional provision (section 12(2)) preserves backdating under the revoked instrument, but only for those who had already applied. For new applicants after 1 July 2017, the cap applies.

Transitioning members’ backdating is tied to first use of the White Card, not the request date. Section 10A(2) says the person is eligible for treatment for 3 months before the date when treatment is first accessed using the White Card. This means: if a person separates and gets a White Card but does not access treatment until 6 months later, they only get backdated coverage for the 3 months immediately before that first access. They do not get coverage for the full 6 months. Also, if they access treatment before being issued the White Card, that treatment is not covered because the White Card must have been issued first (paragraph (b) of section 10A(1) requires “has been issued with a White Card on transition from the Defence Force”). So early private treatment may not be reimbursed.

The definition of mental health condition is broad but requires a professional who can assess it. The condition must be one that “could be assessed and diagnosed” by a mental health professional. This does not require a diagnosis before treatment starts, but it does create a risk: if the Commission later forms the view that the condition could not have been assessed (e.g., it was a transient reaction), it could challenge eligibility retrospectively. For practitioners, it is prudent to have a formal diagnosis or at least documented clinical opinion before claiming.

Reservist eligibility depends on the Commission’s opinion, which may be slow or inconsistent. The definitions of border protection service, disaster relief service, and serious training accident all require the Commission to form an opinion. There is no set time frame for that opinion. A reservist could make a request but not get a decision for months. The instrument does not provide interim treatment while the opinion is pending. Similarly, “serious injury” is defined by the Commission’s opinion, so a reservist who was in an accident that caused significant injury but the Commission deems not “serious” will not be eligible.

The instrument does not apply to family members or dependants. Only the specified persons themselves are covered. This is a narrow class compared to some other health schemes. A veteran’s spouse or child with a mental health condition unrelated to the veteran’s service cannot get DVA‑funded treatment under this Determination.

No explicit right to choose provider. The treatment is provided under the Treatment Principles, which may limit choice of provider (e.g., requiring use of contracted providers). The Determination does not override those limits. A person may be required to see a DVA‑approved psychologist rather than their preferred private psychologist.

Electronic lodgement only via approved means. Section 11(2) and the note specify fax, internet, or email to nlhc@dva.gov.au. If a person emails a request to a different address, it may not be considered received for backdating purposes. The electronic lodgement instrument is dated 2016; if it is later replaced, the reference in this Determination may become stale.

For individuals seeking treatment. Identify whether you fall into one of the four classes: veteran (section 9), past or current member with continuous full‑time service (section 10), transitioning member with a White Card (section 10A), or reservist with relevant service (section 10B). If in doubt, contact the Department of Veterans’ Affairs (DVA). Make a request in writing, in person, or by phone to an office of the Department in Australia. For written requests, you can lodge electronically via fax, the DVA internet portal, or email to nlhc@dva.gov.au - ensure you use that exact address. The request should include enough information to establish your identity and eligibility (e.g., service number, date of birth, details of service). For reservists, you may need to provide evidence of border protection, disaster relief, or serious training accident. The Commission will form an opinion; you should be prepared to provide supporting documents (e.g., posting orders, accident reports). Once the request is accepted, you can access mental health treatment from DVA‑approved providers. The treatment must be within the Treatment Principles - check with your provider or DVA what is covered. Keep records of the date you made the request and any communications, as the backdating period runs from that date.

For transitioning members with a White Card. You do not need to make a separate request; your eligibility begins when you first access treatment using the White Card. However, to maximise backdating, you should access treatment as soon as possible after receiving the card. The 3‑month backdating applies to treatment received in the 3 months before that first access. If you wait 6 months, you lose coverage for the first 3 months after separation. Ensure you present your White Card to the provider and that the provider bills DVA. The White Card must have been “issued on transition from the Defence Force” - if you have a White Card from another source, it may not qualify.

For reservists. In addition to making a request, you must rely on the Commission forming an opinion that your service qualifies. It is advisable to submit supporting evidence with your request to facilitate this opinion. If the Commission issues a negative opinion, you may seek internal review and then AAT review. There is no prescribed form for the request, but clarity helps.

For health care providers. Verify the person’s eligibility using the White Card or by contacting DVA. Provide treatment that falls within the scope of the Treatment Principles. Ensure you are registered with DVA or have a valid arrangement. Bill DVA directly or provide services under the scheme. Keep clinical notes that justify the diagnosis of a mental health condition as defined (a disorder assessable by a mental health professional using recognised criteria). If the condition is not clearly a mental disorder (e.g., relationship stress without a DSM‑5 diagnosis), consider whether it qualifies. Backdating may require documentation that treatment was provided in the 3‑month window before the request or first White Card use. Do not provide treatment that is not covered by the Treatment Principles (e.g., experimental therapies) unless separately authorised.

For compliance and audit professionals. Monitor that backdating caps are observed. For veterans and continuous full‑time members, treatment before 1 July 2017 cannot be funded under this Determination (except for transitional applications from the 2016 instrument). For reservists, the cap is 1 July 2018. For transitioning members, the backdating is limited to 3 months before first White Card use; ensure that the White Card was issued on transition and not earlier. Verify that each person falls within exactly one class; overlapping classes do not increase entitlements. Check that the mental health condition meets the definition - if a claim appears for a condition like “stress” without a formal diagnosis, it may be challengeable. Understand that the Commission has discretion on some definitions; if a reservist’s eligibility was based on a Commission opinion, that opinion should be documented.