Chapter One - Background
The perceptions and expectations of
military personnel and their families have changed. No longer can the military
health system just deliver a fit fighting force and care for battlefield
casualties. It must also address the potential longterm health effects of
military deployment including low level environmental exposures, occupational
risks and psychological stress. The Australian Government, including the
Department of Defence, has a continuing obligation of care for those who volunteer
to serve in the ADF when in service and after discharge.[1]
1.1
The terms of
reference of this inquiry were developed to address a number of questions about
the extent to which the ADF had the capacity in its provision of health
services to minimise potential injury or illness to personnel while on
deployment, and post deployment.
1.2
This reflects the
concern of veterans and ex service personnel that the health effects of
exposure to a range of hazardous substances has not been sufficiently
recognised and that compensation is not payable for a range of disabilities
which they believe are service related.
1.3
The terms of
reference therefore focus on current administrative arrangements between the
Departments of Defence and Veterans' Affairs which have divided responsibility.
It is suggested that within each agency, and between each agency, there are
some serious discontinuities which prevent a more holistic approach to the
management of health prior to, during, and after service.
1.4
Several of these
issues have been addressed or discussed in recent reports, including the Clarke
report on veterans entitlements,[2]
which listed a number of similar matters, and made recommendations for changes;
and in specific studies on different conflicts. Nonetheless, a number of questions
remain unanswered in that some groups are dissatisfied with the outcomes of
these reports, or some inquiries have not yet been completed.[3] These questions include the following,
against which the terms of reference are noted:
-
If deployment
health services in general meet their objective; 1(a)
-
If there are
adequate processes in place to identify and minimise the effect of
environmental/chemical /biological hazards in more recent conflicts, and if the
information on these is also maintained on individual files; 1(a), 1 (b),
1(c)
-
Whether the
personal medical and related records of individuals in the ADF, and veterans,
contain full and accurate information, including on environmental exposures;
1(c)
-
If information
provided on health risks and on drugs/vaccinations especially predeployment,
is adequate; 1(c)
-
Whether there is
rapid access to personal medical records, especially for the purpose of filing
a claim; 1(b)
-
If there is
rationalisation of research work undertaken by the ADF and by the Repatriation
Commission and effective amalgamation; and whether this research is addressing
the needs of ADF personnel and of veterans of earlier conflicts; 1(f) and
-
The roles and
effectiveness of all parties/agencies involved in deployment, record keeping,
research and claim assessing; 1(e).
1.5
The Australian
Defence Force (ADF) comprises three separate forces, Army, Navy and Air Force.
The management and administration of each is a separate responsibility, and the
day to day provision of health services to serving personnel has varied over
time. At times each force had its own set of services, many of which were
under-utilised, and it is only recently that there have been effective moves to
centralise and integrate, following several reviews in the last few years which
have emphasised high costs and waste, albeit mostly in nondeployed services,
and recommended centralisation and greater efficiency in operation.[4]
1.6
Much of the
emphasis on change in the ADF has followed similar strategies operating in both
the United
States
and the United
Kingdom,
both of which have deployed substantially larger forces to a wide range of
conflicts and other missions.[5] Above
all, the objective of these strategies is to ensure that the deployable staff
are fit and that injury and illness are minimised and treated effectively.
However, there has not been a corresponding emphasis until recently in the ADF
on appropriate training practices and occupational health and safety.[6] The effect of this has been to reduce
the number of persons who complete the recruitment training, and limit the
number of active personnel available for deployment. With a greater awareness
of the effect of training and other injuries[7]
and also of the poor occupational health and safety record in the ADF,[8] there is now more emphasis on preventive
and proactive approaches.
1.7
Previous lack of
harm minimisation policies in operation within Australia resulted in resources being wasted and many problems
not being identified until later, which can have the further effect of higher
costs for rehabilitation or pensions. At the same time as there have been
complaints about the use of chemicals and other substances in conflicts, there
has also been a limited understanding of the effect of chemical hazards in the
workplace, as illustrated by the report on the F111deseal/reseal process at
Amberly.
1.8
The extent of
health services required for deployment will vary according to the size of the
force and the nature of the deployment. In joint operations with major powers,
Australia (with a very small force, relatively speaking) will only be required
to send level 3 services which are essentially emergency treatment, as inpatient
care will be provided by allies. In other instances, such as Timor,
Australia may help operate a UN hospital and take a much
greater role, with many more medical staff being deployed. However, deployed
health personnel also include psychological services, and there is often a
requirement for health updates which may demand the provision of additional
preventive treatment in the field.
1.9
Little direct
information was provided about the quality of most of these services, but some
problems were identified with the availability and accuracy of information on
some processes, including exposures to various substances and the recording of
such exposures, and with information on vaccinations.
Repatriation Commission/Department of Veterans
Affairs
1.10
Health services
and disability payments for former members of the ADF are managed by the
Repatriation Commission, which delegates its powers to the Department of
Veterans Affairs (DVA).[9] In recent
times there have also been several reviews of, and reports on, aspects of the
relevant legislation, the Veterans
Affairs Entitlements Act 1986, many of which have addressed concerns about
the equity of pensions relative to the cost of living, and recognition of level
of disability.[10] Other concerns have
been the nature of service, primarily that which is not recognised as warrelated,
the extent to which certain diseases and injuries are recognised as servicecaused,[11] and the role of environmental hazards
in particular in contributing to servicerelated ill health.
1.11
In each of the
areas in which concern has been manifested over many years, there has been a
perception by distinct veteran communities that:
-
governments have
failed to meet perceived promises to look after veterans on the basis of
increased cost;
-
legislation has
become more rigorous, [12] excluding many from disability
pensions; the Repatriation Medical Authority is too scientific in its Statements
of Principle;
-
other
governments, including the United States, New Zealand, and, at times, the
United Kingdom, have been more generous to veterans;
-
there has been
limited recognition of many factors believed to be responsible for
servicerelated illness/injury, including radiation and chemicals, and
exposures to these have not been measured or listed in records; and
-
the organisation
and maintenance of service records has been chaotic, with what are believed to
be relevant causal factors not being listed.
1.12
A number of these
issues indicate that some veterans do not recognise that modern warfare has
changed, and the nature of many deployments has also changed. While
acknowledging that each different type of deployment can result in particular
stresses, governments are also seeking to bring the issue of compensation
closer to that which is applicable in the broader community. The recent Military Rehabilitation and Compensation Act
2004 represents an effort to overcome the problems caused by the existence of a
range of legislation where different payments were available based on factors
such as date of joining the ADF, and some personnel had double entitlements.
While many of these complicating factors will continue because of prior service
by current ADF personnel, all injuries and illness from the commencement date
will come under the new legislation which will help provide some uniformity.
1.13
A major feature
of the new legislation is the importance of rehabilitation and of return to the
workforce. While many may have been seriously injured in World War 2, Korea and Vietnam, and had a reduced capacity for employment, this
outcome is now less common in more recent deployments and missions.[13] Thus, while there is provision in the
legislation for serious disability, there is an expectation that this will be
more of an exception, and that treatment will assist with other injuries and
illnesses. This is similar to the attitude behind recent equivalent legislation
in the United
Kingdom.[14]
1.14
This approach is
not relevant to veterans groups, many of whose concerns go back to World War 2,
and who believe that their entitlements should not be restricted by modern
formulae requiring more rigorous medicoscientific evidence. This belief therefore
does not accept some of the changes that have occurred in legislation and which
have been in place for several years, especially the demonstration of a
specific link between service and disease. However, in either case, the
relatively limited research on the longterm effects of some exposures
complicates this issue, since it raises the question of responsibility for
providing information on exposures.
Veterans' issues
Governments
and costs
1.15
Successive
governments have tended to make
reforms piecemeal rather than undertaking substantial change because of the
sheer size of the veteran population, with cost a likely factor. However, the
environment in which veterans legislation developed between the first and
second world wars was conducive to the extension rather than the contraction of
benefits. The reverse onus of proof was introduced in 1929,[15] and has remained a key principle in
the legislation, although on occasion it has been misunderstood by claimants.
In conjunction with the term reasonable hypothesis which linked the disease or
injury to service, there was a very broad benefit of the doubt both with
respect to facts and medical evidence on the medical causation (aetiology).
1.16
Both a concern
about costs and about inappropriate claims influenced changes made in the
1980s and, especially, the 1990s. Originally, the veterans legislation did
not have regard to medicalscientific evidence, but a 1993 report by the ANAO[16] and the 1992 Bushell decision[17] had demonstrated the pitfalls of
reasonable hypothesis outside of scientific guidelines, leading, via a
review,[18] to the development of the
Repatriation Medical Authority (RMA) in 1994.[19]
The RMA was established specifically to provide a medicalscientific input
through the use of Statements of Principles.[20]
Although eligibility for claims had become extensive, and the reverse standard
of proof remained, a tighter definition of illness and injury restricted access
to several veterans. It is this aspect of the legislation which remains the
most contentious, because it has removed the opportunity for access to a
disability pension where there is no satisfactory aetiology.
1.17
Under S 196B of
the Act, the Authority can only operate in accordance with medical-scientific
evidence, which is defined at S5AB(2):
S5AB(2)
Information about a particular kind of injury, disease or
death is taken to be sound medicalscientific evidence if:
(a)
the information:
(i) is consistent with material relating to medical science that has been
published in a medical or scientific publication and has been, in the opinion
of the Repatriation Medical Authority, subjected to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the
basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be causedmeets the applicable criteria
for assessing causation currently applied in the field of epidemiology.[21]
Legislation
has become more rigorous
1.18
With the
introduction of the RMA, a greater certainty and consistency of decisionmaking
was possible. The emphasis on peer review and generally accepted medical
practice made speculative opinions of individual practitioners irrelevant. In
reality, this was beneficial to veterans in that it both removed an element of
uncertainty and helped maintain the integrity of the compensation process.
1.19
However, some
groups claim that the RMA is too scientific,[22]
which, in the context of their arguments, generally means that the RMA will not
accept a new illness or injury, or any causal factor which is not
demonstrated by epidemiology or widely accepted professionally:
Being deployed to a particular conflict
is not a causal factor. When an elevated rate of disease is detected among a
particular group of deployed veterans, it is necessary to try to identify a
causal link, such as exposure to a specific hazard, which will enable
compensation to flow to veterans. Under the SOPs, no presumption of causation
can exist without some evidence of causation in the published scientific
literature.[23]
1.20
The fact is that
the RMA cannot work otherwise than according to the legislation. While research
may eventually result in symptoms receiving an accepted diagnosis (as is the
case, for example, with chronic fatigue), this does not demonstrate a failure
on the part of the Authority. Scientific approaches are based on direct
evidence of causal links, replication of situations (such as use of dosimetry
in respect to exposure to radiation or calculation of dispersal of toxic
substances such as Agent Orange), and the exclusion of other causal factors,
all of which take time to demonstrate. By its nature, medical-scientific
evidence will rarely be produced rapidly, even though popular beliefs may be
vindicated by it:
The timescale of the epidemiology
studies is determined by the work which must be carried out to ensure that a
rigorous scientific assessment takes place. Accordingly, although many veterans
are anxious to know the outcome as soon as possible, the studies cannot be
accelerated.[24]
1.21
Prior to the
amendments made in 1994, S 120 of the Act provided that the Commission shall determine a warcaused injury,
disease or death unless it is satisfied beyond reasonable doubt, that there is
no sufficient ground for making that determination.[25] S120(3) required that there be a
reasonable hypothesis linking injury, illness or death with the
circumstances of the particular service, but there was no guide to what
constituted a reasonable hypothesis. With the introduction of the Statements of
Principle, a reasonable hypothesis could only be an SOP or a determination of
the Commission under S180A(2).[26]
Reasonable satisfaction was also to be assessed with reference to SOPs or an
S180A (3) determination, reducing opportunity for individual opinions or
speculation. Further, the Repatriation Commission was not able to determine
claims unless or until the RMA either issued a SOP or stated that it did not
intend to make one on the relevant illness or injury.[27]
1.22
The Specialist
Medical Review Council[28] can review
Statements or decisions not to determine Statements, and in this sense is an
appeal mechanism. The Statements are also disallowable instruments,[29] which, in instances where a particular
situation is not covered, does provide an opportunity for further public
discussion. Nonetheless, S180A was also introduced under the same legislation
as the RMA, the Specialist Medical Review Council, S120A and S120B and S 5AB,[30] and therefore seems intended to be a
failsafe. In spite of the emphasis on science and medicine in the other
sections, S180A does not require the Repatriation Commission to be scientific
in exercising this discretion. If any political decision is to be made, this will
be carried out through the Repatriation Commission.
1.23
The Repatriation
Commission could not be said to have made any determination that ignored medicalscientific evidence. The
one instance of an S180A determination since the legislation was amended in 1994
was made under unusual circumstances when the RMA members had not yet been
determined. However, although based on medical reports, it appears primarily a
political decision.
1.24
The RMA had not
had an opportunity to consider then recent US material on Agent Orange use in Vietnam and make any Statements of Principle on links between
Agent Orange and various illnesses before the relevant Minister had received a
report from two experts who had also been reviewing US information (Professors McLennan and Smith).
The Minister announced in October 1994 that five illnesses[31] were referred to:
Professors MacLennan
and Smith came back and gave a report, which I made public at the end of last
week, which specifically stated that in their view there was a sufficient link
between herbicides used in Vietnam
and some cancers. They said that there were approximately five cancers
involved: multiple myeloma, leukemia and three forms of respiratory
cancernamely, lung, larynx and trachea cancer.
In the context of the Veterans Entitlement
Act and in the context of the generous nature of the repatriation system in
this countryprobably one of the best, if not the best in the worldit was
decided that we would accept the recommendations of Professors MacLennan and
Smith to the effect that we would give the Vietnam veterans the benefit of the
doubt. [32]
1.25
The information
provided by Professors McLennan and Smith was also similar to that provided by
the United States Department of Veterans Affairs. Distinguishing inter alia its role in making
recommendations regarding policy, from the National Academys role in reviewing scientific evidence,[33] USDVA had recommended adding multiple
myeloma and respiratory cancers. The United States DVA Task Force, however, had
not accepted a link between herbicides and leukemia, which Professors McLennan
and Smith did. [34] The use of S180A however, has been
limited:
the Repatriation Commission has been
cautious in applying this provision and, while not requiring the level of
scientific evidence required by the RMA, has taken the view that the
legislation requires some evidence and a plausible scientific basis.[35]
1.26
The RMA has also
been seen as lacking an awareness of military factors which are considered
relevant in determining eligibility under Statements of Principles. Defence
suggested that input from a senior Defence Health representative into RMA
determinations would be useful.[36] This
position was supported, indirectly, by both the Regular Defence Force Welfare
Association, which stated that the Authority lacks a complete perspective in
some areas, affecting the outcome of claims,[37]
and the Australian Peacekeepers & Peacemakers Association which suggests
that the RMA needs to both become aware of some issues especially mental health
ones, and ensure that the Statements of Principle reflect the results of
research.[38]
1.27
However, as the
Repatriation Commission points out, there will always be some conflict between
what claimants perceive as appropriate and what departments or agencies are
able to provide under the law:[39]
Health research does not always produce
evidence of a causal link between service and injury or death, which is
fundamental to the acceptance of claims for compensation under departmental
programs.[40]
1.28
Given that
organisations may request a review and provide submissions to such reviews,
there is already in place a process through which new information can be
presented for consideration by the RMA.
1.29
The only area in
which the Committee believes there could be some improvement with respect to
the RMA is to make the website more user friendly, with clearer information on
accepted disorders, rather than categorising them under medical terminology
such as malignant neoplasm.
More
generous legislation in other countries
1.30 Some veterans believe that other countries have
accepted the same information on matters such as exposure to chemicals or
ionising radiation, and established a causal link in much the same way as the
RMA does in respect of other matters. However, while there is a scientific
basis to the causal factors in veterans legislation in other countries, this
does not always mean that there is detailed evidence of it, or that all
symptoms are determined to be specific disorders.[41] Some countries have decided for many
reasons to use presumptive cause, often to cut down individual litigation,[42] but will retain a requirement of
further evidence in other instances.[43]
1.31
Essentially, all
presumptive cause arguments are based on a demonstrable link between factors,
but other principles may extend or narrow the field of eligible persons. One
example is the role of the US National Academies Institute of Medicine
demonstrating the likely pattern of distribution of Agent Orange in Vietnam,
based on data about other chemicals, and the role of the US Veterans Affairs
department in deciding that all US personnel in Vietnam had been exposed to Agent
Orange.[44] Regardless of the
methodology of the inquiry, the scientific approach established a probable
cause, but the field of those eligible to make a claim was determined by another,
non-scientific, agency. In reality the VA decision may embrace more people than
were actually exposed, but this is deemed less relevant than an outcome which
may have been more concerned to demonstrate an interest in veterans needs.
1.32
The United States has more recently accepted a relationship between illhealth
and war service much more readily, thus providing more generous access to
disability payments. The reason for greater acceptance by the United States of causal links is difficult to discern, especially
as the US did not respond particularly quickly to problems
arising from the Vietnam War,[45] or
even the first Gulf War. Relevant factors contributing to change may include:
-
the additional
conflicts in the 1990s and the amount of time spent in deployment;
The United States has been continually involved in conflicts and other
missions in a number of countries through the 1990s, with substantial forces
generally being deployed. There is therefore a greater data base of personnel
available,[46] although in some
instances research may be complicated by the fact that some personnel have been
involved in multiple exposures over a period of years, and relevant data has
not always been collected.
-
There is a
substantial number of high quality scientific/medical research and review
centres in the United States to whom several matters have concern have been
referred; their reports are often the basis of legislative and regulatory
decisions on eligibility for disability benefits.
1.33
Exposure to
numerous hazards and to different operations has illustrated the possibility of
injury arising from chemicals and other substances. These have been studied
intensively, in spite of the problems in obtaining data and providing
information on participants that are referred to below.[47] The fact that relatively new military
personnel (including women and ethnic minorities) have been involved in
conflicts and have also complained of similar effects from exposures, has
helped support beliefs that such claims are not being made only by those who
have been in previous conflicts and hence may be affected by multiple factors.
-
The greater
variation in personnel, with, for example, US forces in the Gulf War
including large numbers of women and ethnic minorities.
1.34
On political
grounds alone, it would be unwise to not acknowledge the reality of the
experiences of either women or ethnic minorities. There is also a much more
obvious statement of past incompetence in respect to past policies in the US political arena, without apparent concern as to
liability, and possibly a more effective machinery through which existing
legislation can be updated.
United Kingdom
1.35
In the United Kingdom, there has been detailed discussion for some time on
both the nuclear tests and the effects of the Gulf War. The major issue with
respect to the nuclear tests is that the service is not considered warrelated,
and therefore there is no access to a war disability benefit, even if it were
accepted that exposure was sufficient to cause illhealth.[48] All cases therefore must proceed
through the civil courts.
1.36
The Gulf War
syndrome has resulted in a different outcome. Originally, there was some
interest in whether it could be established that the illnesses forming the
Gulf War syndrome were the result of error,[49] establishing liability. This matter
does not seem to have been resolved, and the issue of error has become less
important, possibly because there were multiple exposures, some from Coalition
forces. However, there remains the option of making a civil claim, a path which
has been taken by some veterans:
The Government is not persuaded that,
on the basis of the information currently available to it, there is a case for
paying additional no fault compensation to Gulf veterans, separate from and
above that which is already available to both Gulf and other veterans by way of
war pensions and ABRS. However, the matter will be kept under review in the
light of developments and ministers have made clear that if legal liability is
established by future research or investigation, MOD will of course pay
compensation. [50]
1.37
Like Australia, and, to some extent, the United States, the United Kingdom has not accepted the Gulf War syndrome:
1. Since returning from the Gulf War in
1991, some British veterans have become ill. Many believe that this illhealth
is unusual and directly related to their participation in Operation GRANBY.
This is a view also held in some other Coalition countries, particularly the USA,
where Gulf veterans have fallen ill since the conflict. However, there is still
no medical or scientific consensus on this subject and, after six years, many
veterans now feel frustrated at the lack of progress and abandoned to their
plight.
3. At present there are three
significant unknown elements which affect sick veterans. First, some of them
have symptoms which have not been fully diagnosed: it simply is not clear what
is wrong with them. Second, it is not known in all cases what the cause or
causes of the veterans' illnesses might be. Third, it is accordingly not possible
to say whether those illnesses are the result of an error on anybodys' part.[51]
1.38
Following on
this, the United
Kingdom
agreed that there would be a three principle approach:
-
Access to medical
advice (which had become available from 1993[52],
through the Gulf Veterans Medical Assessment ProgrammeGVMAP) and which later
included psychiatric assessment and treatment;[53]
-
Appropriate
research into the illnesses and factors which might have a bearing on them;
and
-
The public
availability of all information.[54]
1.39
Research, when
completed, produced much the same results as have been available to US and
Australian researchers:
The consensus of the international
scientific and medical community is therefore that there is insufficient
evidence to enable this illhealth to be characterised as a unique illness or
syndrome.
The Medical Research Council addressed
this in a review of research
published on 22 May 2003
and came to the same conclusion. The Ministry of Defences approach must be
guided by these findings from the scientific and medical community, and we do
not therefore recognise Gulf War Syndrome as a medical condition.[55]
1.40
However, the United Kingdom defence compensation system was sufficiently flexible
to be able to provide for symptoms as opposed to an accepted medical
condition, on the basis that being disabled was the relevant factor:[56]
it is important to note that this does
not stop 1990/1991 Gulf veterans who have left the armed forces and are ill,
either exRegulars or ex-Reserves, from claiming a War Pension. War Pensions are awarded not
for a list of disorders but for any disablement which can be accepted as caused
or made worse by Service, whatever that disablement is called. The question of whether or not there is such a
thing as Gulf War Syndrome is not therefore relevant from the point of view
of War pensions.
In addition the Armed Forces Pension
Scheme and the Reserve Forces (Attributable Benefits Etc) regulations provide
enhanced injury and death benefits to regular and reservist Service personnel
whose injuries, illnesses or death, was were, on the balance of probabilities,
attributable to, or aggravated by, their Gulf service.[57]
1.41
War pensions are
not available to persons who remain in the forces, and it is assumed that those
who made civil claims in respect of Gulf War syndrome are either still serving,
or those who were unsuccessful in their application for war disablement
pension. These pensions are tax free, and the claimant does not have the onus
of proof;[58] indeed, as noted above,
even when the onus of proof changes, the claimant remains in a favourable
situation.
1.42
In spite of this
apparent concession as to disablement, it is important to evaluate the United Kingdom situation. There is no payment of pension unless one
has at least 20 per cent disability;[59]
and the rate of pension is not high, although pensioners may also be eligible
for a range of allowances and other benefits. United Kingdom Ministry of
Defence data for September 2003 states that the majority of war disablement
pensioners receive 50 per cent or less pension, with the largest group
receiving the 20 per cent level (the level at which any disablement pension is
paid).[60] At this date, there were
208,000 active war disablement payments.[61]
1.43
Pension access,
therefore, is likely only to provide an income supplement, and should not be
seen as full income support. What is likely to be of greater value to veterans
and those still serving is the very public recognition of the entire Gulf War
experience by the United Kingdom government, including the continual assessment
by the House of Commons Defence Select Committee, the research being
undertaken, and the effort to ensure that Gulf veterans at least do not become
part of the socially excluded.[62]
Australia and the Gulf War syndrome
1.44
Australia is not in a position to provide access to a
disability pension, because there is currently no disorder accepted by the
medical profession as the Gulf War syndrome, and those deployed in the Gulf
War are not unique in experiencing these symptoms:
we found that Gulf War veterans
experienced a higher rate for many symptoms reported than a comparison matched
group of personnel who did not serve in the Gulf. As the clusters of symptoms
and the type of symptoms were the same in both groups there was no evidence of
a unique symptom that could be called Gulf War Syndrome.[63]
1.45
The RMA therefore
cannot proceed, and, given that there have already been some epidemiological
studies in the United Kingdom which did not show any unique syndrome, nor lead to a
new diagnosis, it is unlikely that the RMA will be able to proceed any further
for some time, if at all. However, the Repatriation Commission notes that in
some circumstances veterans in the situation of having symptoms may receive
access to medical services, much the same step as was taken originally in the United Kingdom:
For veterans who have symptoms that do
not fall into established diagnoses, or do not fit with systematic evidence for
a new category of diagnoses, it is difficult for our system, founded on
evidence-based diagnosis, to provide compensation. The Repatriation Commission
does, however, have the authority to selectively provide medical treatment in
these circumstances.[64]
Under a policy change announced by the
then Minister, the Honourable Bruce Scott MP, any veteran returning from a
deployment with symptoms that are difficult to diagnose is provided with
treatment until the condition is diagnosed.[65]
1.46
The
acknowledgment of the experience of Gulf War veterans is important, and the
provision of medical services is a means of achieving this, although it could
also be argued that this approach may encourage veterans to consider everything
is a disorder or compensable in terms of a pension rather than in terms of
required health services. The provision of these services is valuable, although
a delay in access may have caused the belief that little attention was being
paid to what had become a commonly experienced syndrome.
There
has been limited recognition of many factors believed to be responsible for
servicerelated illness/injury, including radiation and chemicals, and
exposures to these have not been measured or listed in records.
1.47
With each
deployment, veterans and currently serving personnel in Australia as well as in the United Kingdom and United States, have raised numerous issues about the extent of
damage to their physical and mental health in combat or from a range of
environmental factors, and their governments seeming indifference to this.
These concerns go back to at least World War 2,[66] and the Korean War,[67] and the range of exposures has been
considerable. Some have resulted from what were thought of at the time as
environmental safety protection, such as the use of DDT to prevent malaria, and
apparently also the use of DDT and kerosene, including on clothing, to check
the effects of rats and other vermin.[68]
Others have occurred because of the particular circumstances of a combat zone,
including the burning of smoil, or the extensive use of herbicides and
defoliants, as in Vietnam (Agent Orange included) to destroy vegetation and
crops. Exposures also include those relevant to specific tasks, and may have
been continuous until safer items became available.[69] Additional contributing factors also
can result from the combat situation, such as lack of food, contaminated water,
poor quality health services, unhygienic conditions, extremes of temperature
which cannot be mitigated,[70] and
combat stress.
1.48
To a degree, the
lack of scientific knowledge of the effect of these hazards has previously
limited research, and the fact that some disorders may only manifest later in
life has meant there has been little data on possible outcomes. Political
factors have also hampered acknowledgment of the effects of many substances,
such as the use of napalm on civilians. The Gulf War is the first modern war
where, in spite of initial resistance, there has been quicker recognition of
the existence of some problems. At this point, the recognition, through
research, has identified primarily what might be called mental health issues
rather than environmental exposures and contributing factors. In part this is
because technology has facilitated the collection of data suggesting that
chemical and biological weapons have had a limited role. The long term effect
of depleted uranium is still a contentious issue for some veterans, although
much of the available research suggests that there is limited room for concern.
1.49
Governments have
also become increasingly responsive to issues that have been raised by
veterans, a response which reflects the increased availability of
medical/scientific knowledge and development of new methodologies, as opposed
to anecdotal evidence or a single medical view. In some instances, attempts
have been made to calculate the effect of such exposures. In others, research
has indicated a higher level of some diseases than in the comparable age group
of nondeployed men, although the extent to which exposures have contributed to
this is not always clear.[71] However,
the concern remains that because there was little interest in collecting data,
or limited capacity to do so, some approximation of this data will not be
sufficient to demonstrate either a specific illness or injury, or any
individuals risk factors.
1.50
With respect to
more recent deployments, some evidence suggests that more sophisticated methods
of measurement of exposures has enabled the collection of data on chemical,
environmental and other hazards.[72]
Other information indicates that while the technology exists, human error and
inadequate administrative processes have limited the collection of data.[73] The House of Commons Defence Select
Committee noted in particular, in respect to the first Gulf War, that negative
information was often quite as useful as positive evidence:
The review highlights the problems
created by inconsistencies in recording events at the time and by deficiencies
in preserving records subsequently, when trying to examine such events nine
years later.
... it must be recognised that there is
an element of doubt about the assessment that UK
troops on Al Jubayl
on 19 January were not exposed to Iraqi CW agents ... we are dealing with
history and the passing of nine years introduces an element of uncertainty. We
no longer have available all of the information that we would like to see.
The review recommends that 'in future,
such alerts should be investigated more thoroughly at the time, even when it is
suspected that there is no actual chemical threat' and that records of such
alerts should not be destroyed, even when it becomes clear that alarms were
false.[74]
1.51
If comments made
by United
States
agencies about the disparity between intent and practice are true, it is also
possible that some data Australia may be relying on in respect of exposures is not
available.[75] This will have a long
term impact because there may continue to be gaps in available information and
in individual records, even when a more sophisticated health record system is
in place. At the same time, it has to be recognised that while the extensive
research being undertaken in both the United Kingdom and the United States may provide information that will be useful in at
least making approximations of exposures, this will not necessarily lead to any
specific diagnosis. While veterans in both these countries may receive the
benefit of the doubt, be deemed to have been present during a specific event,
or are able to demonstrate warrelated disability, even the most explicit data
on exposures may only result in medical treatment for Australian veterans.
The
organisation and maintenance of service records has been chaotic, with what are
believed to be relevant causal factors not being listed.
1.52
Much of the
information provided to the Committee did not demonstrate that there were
problems overall in obtaining access to service records. The main complaints from
the point of view of veterans were that some data that should have been there
were not. Obviously, data on environmental and other exposures in the past has
been limited, and in some instances individual events have also not been
recorded. These events fall into two categories:
-
Records of
medical treatment or injuries; and
-
Events or
occurrences that may have a later impact.
1.53
The Committee
would welcome signs that progress has been made in protocols for ensuring the
electronic transfer of all data from allied theatre and other hospitals, or at
least guaranteeing a paper copy.
1.54
With respect to
the second issue, it is true that the nature of conflict may preclude a
detailed report of every event that occurred, even though formal records[76] are used to reconstruct possible past
scenarios:
Where a Vietnam
veteran says that he saw someone raped, that is more delicate and tricky, but
there are ways and means for us to get information. We should emphasise that
there is no burden of proof on the veteran: we have to take his word at face
value, unless we have something evidentiary to make us think it is not correct.[77]
1.55
Up to a point,
the current process of providing key information on a conflict may at least
identify some possible problems in the future, but these are not a guarantee
that all precipitating events will be registered. Even where an individual is
considered to have a recognised disorder, it is possible that this will be
challenged as not warrelated. It is always necessary, because of the
legislation, to be able to provide certain key events and to have these
accepted as relevant:
he does suffer from Alcohol Dependence
However, that Alcohol Dependence is not a warcaused injury or disease and
the Respondent is not liable to pay a pension to the Applicant pursuant to s
13(1) of the Veterans Entitlement Act
1986.[78]
. The Tribunal concludes there is no
evidence before it to disprove the hypothesis beyond reasonable doubt.[79]
1.56
The ADF does have
in place processes by which such events can be recorded,[80] but it should also be accepted that
many traumatic events are not immediately remembered in detail, even though
aspects of them may be. Added to the rather late postdeployment health
assessment[81]which may not be
available at all to reserviststhis can result in crucial individual data being
lost.[82] The only solution would be for
each individual to maintain a record, and this is not practical for a number of
reasons, not least being an unwillingness to relive some experiences.
1.57
The Committee was
concerned at the slow roll out of the HealthKEYS system, not so much in terms
of the past but because there is no facility to transfer information from
current paper or disparate electronic files to the new system. Thus individuals
who are currently serving and may still be in the forces for several years,
will not have a complete electronic file.
1.58
Some of the
information provided to the Committee, such as the loss of the Air Force
records, indicates that there is a backlog of data to be processed.[83] The relatively late commencement by
the ADF of a centralised triforce IT system linking personnel and medical
records means that some existing problems such as lost data, and data that was
not provided, are likely to continue. Where there is a failure to follow
established practices, such as full recording of vaccination information, this
is also difficult to reconstitute. There is not always sufficient information
available to personnel on these problems which would at least allow them to
make a personal record of events including injuries, vaccinations and exposures
which may be necessary in the future.
1.59
The United Kingdom was surprisingly open about some similar problems
during the first Gulf War:
In summary, UK
forces deployed to the Gulf with no established routines for recording primary
care clinical information during a long deployment in the field, nor any robust
method for recording immunisations and ensuring that the information was
subsequently captured and transferred to the F.Med 4 [permanent medical
records, equivalent to those GPs hold for civilians].[84]
1.60
Although there is
no plan to enter any current information from ADF deployments into the new
system, the fact that concerns about exposures, vaccinations, and medications
have been raised suggest that the ADF must provide some equivalent electronic
record for personnel to cover the period of service prior to the commencement
of HealthKEYS.
1.61
This was also a
lesson learnt by the United Kingdom from the first Gulf War:
It appears that record keeping was
inadequate from the start. It is certain that there was a significant failure
to transfer what immunisation data was available on to permanent medical
records after the Gulf conflict and that much of that data is probably now
irrecoverable.[85]
1.62
United Kingdom research and reports have provided information on a
number of issues from the first Gulf War which do not seem to have been raised
by Australian personnel in respect of the second Gulf War. Nonetheless, these
reports are all useful sources for both the ADF and DVA especially in the
identification of potential problems, such as false alarms for chemical or
biological warfare, and the effect this may have on personnel. After all, if
there is to be recognition of the effects of conflict, this also has to include
the effects of not knowing if there has been an exposure, or not being sure if
protective equipment is in good condition, just as much as the effects of the
different stresses of working in a peacekeeping mission with limited authority
and control, or being affected by heavy smoil.
Deployment capacity
1.63
With the
pressures arising from increased deployments at much the same time as the above
mentioned reviews of health services,[86]
there has been some concern that ADF health services were not capable of
meeting needs, including during pre deployment and deployment periods,[87] as well as both immediate and longerterm
post deployment periods. Concerns identified have not only related to the
number and quality of services, but to the capacity of the ADF and the
Repatriation Commission/DVA both to identify the need for new or changing
services to meet current issues as well as needs in the future, and to act as
much as is possible in accordance with community standards and expectations.
These standards have helped to create new demands or expectations, additional
to those required by earlier reviews.
1.64
These have been
the stimulus in some ways for the development and testing of new health
services, since they have demonstrated to a more aware management that the
constant effects of war can vary in nature given the different circumstances of
the tasks involved and the extent to which individuals have the capacity to
deal with these.
1.65
Further, broader
community awareness of the effects of drugs and alcohol, of more direct
responsibility for, and participation in, individual health status has led to
the development of a wide range of health services in the ADF, even though not
all of these may be readily accepted. There is an increasing emphasis on mental
health issues within the ADF and on the need to acknowledge that these are an
integral part of the deployment process.
1.66
In discussing the
quality of deployment health services, witnesses noted changes that had
occurred in the community over time and the extension of these into the
military culture which was seen generally as less open. It was thought that
certain of the difficulties that had arisen had their basis in an incomplete
acceptance by the military of community standards prevailing in matters such as
access to information, informed consent, and the capacity to make choices
without penalties. Specific examples included the controversy over non-acceptance
of anthrax vaccinations,[88] a belief
that services were not provided to meet the varying needs of veterans from more
recent conflicts and other operations, and a lack of readily comprehensible
information, including on items such as depleted uranium:
There is a much larger debate in the
civilian community regarding environmental risks and unexplained illnesses such
as chronic fatigue syndrome and the potential risks from lowlevel chemical and
radiation exposure in everyday life. It is understandable that veterans are
concerned that they may be susceptible to a new or unexplained disease caused
by their exposure in a hazardous environment.[89]
The days where you just receive
injections and do not ask about side effects, or have medical procedures
undertaken without a full explanation, have passed.[90]
Duty of care
1.67
Many of these
community standards were expressed in terms of a duty of care, one that
society owed its citizens and one that the ADF owed its personnel. Although
there was no expectation that many other components of military culture should
be dismissed because of the impact of such standards, it was considered
feasible to demonstrate levels of respect for individuals in the ADF through
modifying some of the processes that may have been seen as traditional. It was
also thought that while the concept of individuals being responsible for their
own health was sound, and a part of increasing community awareness of taking
control and meeting an individual duty of care, the ADF and DVA also had the
responsibility to provide services which met the needs of personnel and
veterans as these were affected by broader social changes.
1.68
Duty of care is a
concept which is continually evolving:
In law all employers owe a duty of care
to their employees, the general public and the wider environment.
For the Ministry of Defence (MOD), there is also an obligation to manage the
often greater safety risks associated with military operations. For the
purposes of this document, the term safety
covers the protection of people, property and the environment. The term environment is sometimes highlighted
separately to encourage recognition of the growing importance being placed on
environmental management. [91]
1.69
The relationship
between governments and communities or individuals in terms of duty of care
is a complex one, but it is accepted that the government as employer at
least, owes a duty of care to its employees. This is both a statutory
responsibility[92] and a principle of
common law. A duty of care encompasses the health and safety of employees
through provision of, and adherence to, standards which should apply uniformly.
1.70
This statutory
responsibility may replace, to some degree, an older concept of a leaders
responsibility for those under his command insofar as this was based on general
principles rather than statute. However, there is room for both. Duty of care
also requires that individuals minimise the risks to themselves and to others,
and do not deliberately engage in conduct which is likely to result in injury.
Doing so will generally result in a refusal to pay compensation if injury
occurs. In this context, the refusal to have an anthrax or other vaccination
seen as necessary for the particular combat zone would be overcome by the
policy of no vaccination, no deployment, so that any potential difficulties
arising for the individual and others would be reduced.[93]
1.71
The
responsibility of commanders is extensive and can include ensuring the
provision of necessary information, equipment, and guidance, including safe
working environments, provision of required protective clothing, and necessary
medical services. It can also include actions which may reduce future problems,
such as the practice of some forces of discussing possibly traumatic events on
a daily basis, rather than ignoring or minimising them.[94]
1.72
Notwithstanding
the fact that there can be discrepancies between public perception of standards
and the actual content of community standards, it is essential for an
institution such as the ADF to continually develop its understanding of duty of
care, especially where this may substantially lag behind what is commonly
thought of as normal. Transparency and access to information and processes was
seen as available to an individual in the community, and therefore will come to
be expected by others.
1.73
The issues of
duty of care and community standards are of particular interest to the
Committee, which has examined prevailing cultures and expressed values which
place an emphasis on the wellbeing of ADF personnel, to see if they are
translated into action:
there are some serious human dimensions behind the need
for this inquiry. We need to have a better conceptual understanding of the
issues and of the history so we can go forward. Those affected need to know and
understand the difficulties, but at the same time there isparticularly on
their parta need for some answers to questions that have been repeatedly asked
for 30 or 40 years. If there are weaknesses in the system, we need to identify
them and try and fix them. We also need to accept that our people are the most
important part of the ADF. They are not a commodity to be used and thrown away.
Active service in the field is not an excuse on the part of the administration
to avoid responsibility for care. [95]
1.74
Some submissions
stated that a lack of information both about vaccines and other matters did not
assist ADF personnel in the making of informed choices, especially with regard
to possible long term implications of certain vaccinations. To assess the
current ADF understanding of duty of care, it is useful to look at a case
study, the problem with antianthrax vaccinations. These were undertaken with a
strong awareness of community standards and of the concerns that personnel from
the first Gulf War had experienced:
That was in fact one of the reasons that we put so much
effort into our education campaign for anthrax vaccination, and why I was
adamant that there would be a signed consent formsigned by the member
following a verbal brief from the MOso there could be absolutely no doubt
whatsoever in anyones mind as to the nature of the vaccines that they received
prior to this deployment. My staff and I were firmly committed to the fact that
we were not going to create a situation where there could be confusion on the
part of individuals.[96]
1.75
Although effort
had been put into providing information about the vaccine, other administrative
issues contributed to an adverse result, suggesting that better coordination of
information is required. This case study is at Appendix 3.
1.76
The duty of care
also extends to best practice provision of services to both current personnel
and veterans. Along with changes in the deployment and post-deployment process
have come improvements in co-ordination between departments and, as noted
above, some improvement in the capacity to provide accurate information on
individuals, particularly older veterans. Currently, work is under way in the
ADF to improve information collection and management both for deployment health
and other reasons, and for the more effective management of the health of
personnel post deployment. These will be impressive when in place and operating
fully, although it is unfortunate that they have no capacity to include current
data on currently serving personnel who may still be in the ADF in 2009, the
date by which some systems will be operative.[97]
1.77
Appendix 3 is
also useful as a case study on information issues, not so much on anthrax
vaccination data but on the problems which can arise when both information and
the ways in which it is communicated are not at best practice levels.
1.78
Much of the ADF
and DVA research and program development that has occurred in the past two
decades, and especially during the 1990s to the present has been intended to
identify needs more accurately and develop services for both current personnel
and veterans which meet the objectives of a healthy deployment force and
address the concerns of those from previous deployments. While it is unlikely
that deployments will have no short and long term casualties, there has been a
trend towards more effective and coherent planning which can limit the range of
effects of current war and more quickly develop services that meet the
particular needs arising from both conflicts and work such as peacekeeping.
1.79
In brief, there
is, in theory, a much more proactive approach from both the ADF and DVA which
is able to take advantage of medical and scientific research in order to reduce
hazards or the effects of these, and provide services and education/information
programs which may help individuals identify and seek help for problems before
these become entrenched. Similar processes are occurring in both the United States and the United Kingdom, although there are difficulties in restructuring
substantial forces and implementing such changes, which are openly admitted.
1.80
This inquiry is
primarily intended to determine how far these advances have become a part of both
the ADF and DVA strategies, and whether previous and current dissatisfaction
with either arises from the extent of change, the fact of change, or the belief
that change has not improved the capability of the ADF or the capacity of the
veteran to be an effective part of society, or to have his/her contribution
valued.
Outline of the report
1.81
The terms of
reference require that the Committee consider several issues, including the
adequacy of administrative arrangements for deployment and of the management of
records, the links between ADF and DVA, and the appropriateness of the research
programs of both.
1.82
For some, DVA,
the RMA or the Commissionor all threeare considered responsible for what are
perceived as unfair or inflexible practices which exclude some veterans from
disability benefits. However, none of these three parties can act outside the
legislation, and as has been discussed, each individual country has both
legislation and policies which may provide different outcomes.
1.83
Chapter 2
considers terms of reference 1 (a)(c) and (d) and identifies some areas of
possible concern about the availability of accurate deployment information, the
extent to which an individual in the ADF can effectively monitor his/her own
health, and the effectiveness of some processes which may be well-intentioned
but not always appropriately directed. In so doing, it demonstrates how
successfully the ADF has adapted to substantial change, some from the broader
community and some from similar change in overseas forces.
1.84
Although the
adequacy of vaccination processes was term of reference 1(c), there is a more
detailed consideration of the anthrax vaccination problems at Appendix 3. There
were some faults with this processa few with respect to information and the
expectations of personnel, and some which demonstrate some information
co-ordination issues for management. To consider these in detail in the report
itself would interrupt the assessment of deployment health processes, and place
an undue emphasis on one small aspect of these. Nonetheless, because of the
effects on individuals and the potential for future confusion it was necessary
to determine if the confusion occurred because of a lack of information, the
timing of information, or the overall coherence of information available.
1.85
Chapter 3, (1(b)),
which considers the administrative and coordination processes of both the ADF
and DVA, examines the way in which technological change can assist veterans in
particular through facilitating the development and maintenance of accurate
record systems and the production of information. It also looks at the links
established between ADF and DVA to help ensure a connected pattern of services
for those leaving the ADF and requiring assistance.
1.86
Chapter 4,
(1(f)), considers the research programs of both ADF and DVA to see if these are
directed towards identified needs and lead to the development of programs which
meet such needs. In so doing, it refers to some contentious situations
including the effect of Agent Orange, the British nuclear tests, and Gulf War
syndrome.
1.87
Term of reference
(2) has been considered throughout
the report, with findings and recommendations provided in order to meet the
requirement that recommendations be made which will give greater assurance to
the individual that their health risks are minimised, and fully recorded for
the purposes of future compensation where justified.
Submissions and hearing
1.88
Ten submissions
were received to the inquiry, and these are listed at Appendix 1.The Committee
held one public hearing on 26 February 2004, in Canberra and a list of witnesses at that hearing is at
Appendix 2. At the conclusion of the hearing, additional questions on notice
were advised, and these were forwarded to both the Repatriation Commission and
the ADF. Answers to these, which comprise Submissions
8A and 9B respectively, have been incorporated into the report, and effectively
replace a second public hearing. Answers to questions asked but not fully
answered in the hearing have also been provided by these and other witnesses
and fully considered by the Committee (Submissions
5A and 9A).
References
1.89
References to the
committee transcript are to the corrected edition of the public hearing of 26 February 2004. This can be read on the Foreign Affairs and Trade site:
www.aph.gov.au/committees/Senate, under the name of the inquiry. Submissions
are also available at the same site, although some attachments to submissions
are not on the website. Copies of these can be obtained from the Committee
Secretariat. All other references are quoted in full and some documents
referred to in Appendix 3 have been attached to that appendix to facilitate
evaluation.