Other related matters

Introduction

7.1        The terms of reference of the inquiry were far-reaching and a wide range of topics were raised with the committee. This chapter will address a number of these other related matters. These include:

• alternative and complementary therapies;
• coordination and awareness;
• recruitment and resilience;
• advocacy issues; and
• appeals from DVA decisions.

Alternative and complementary therapies

7.2        Potential efficacy of alternative non-clinical therapies for veterans who may have mental health conditions related to their service was repeatedly highlighted to the committee. These included yoga, meditation, assistance dogs, equine therapy and medicinal cannabis. For example, Adore Yoga considered there was 'overwhelming evidence in the literature that the most effective intervention in the treatment of PTSD includes yoga and meditation'.[1] Mr Russel Ward from Ruff Love Assistance Dogs told the committee about the benefits of assistance dogs for veterans with mental health conditions:

If a veteran was to lose a leg and could not walk anymore, DVA would give them a wheelchair. I have been given PTSD as a description, and they will not give me anything—all I get is some drugs and a psych. I think the dogs have changed a lot of lives, and we have certainly got testimonies through our veterans and through families. They ring Ricky or someone along those lines and say: 'You've saved my husband. He was on the brink of taking his own life, and now he's turned around because he's got a dog.' Dogs are not judgemental. They will love you unconditionally.[2]

7.3        The argument was made that DVA should do more to incorporate these treatments and activities into supports available to veterans. For example, RSL DefenceCare recommended that 'DVA should research non-clinical treatment options, their cost and benefits and allow more flexibility and client choice in what is achieving the best outcomes'. It stated:

Currently, DVA's model of acceptable treatments is primarily based on clinical options, many of which are expensive and require additional clinical options to counteract their effects (for example medication to counter the side effects of other medication). Veterans are constantly telling us that they are better able to manage their injuries and illnesses through non-clinical treatments such as diet, equine therapy, assistance dogs, art, yoga, remedial massage, diet, and acupuncture other lifestyle or wellness type options. DVA will rarely fund any of these, yet they are improving the quality of life for many of our clients, have helped some reduce their reliance on medication, improve their self-esteem and increase the quality of their family relationships.[3]

7.4        Similarly, Mates4Mates believed it was 'important for DVA to be more flexible in considering emerging or complementary interventions in the treatment of PTSD and other military related psychological issues (e.g. Equine Therapy)'. It stated:

While we entirely agree that any endorsed & funded service needs a strong evidence base, to date there seems to be an immediate dismissiveness of these new approaches. By the very nature of them being newer and emerging treatment options, there will obviously be a paucity of an extensive evidence base. Veterans Affairs agencies in the United States, Canada and the United Kingdom have proven to be far more open to funding pilot programs and initiatives to explore these types of approaches (Equine Therapy again as an example) so the evidence about their efficacy can be gathered. Mates4Mates would welcome a more flexible approach by DVA.[4]

7.5        The Joint Committee inquiry into the Care of ADF Personnel Wounded and Injured on Operations recommended that DVA 'accept complimentary therapies as legitimate treatment for psychological injuries if there is an evidence-based clinical reason to do so'.[5] The Australian Government supported this recommendation 'in principle'. However, it also noted:

DVA undertook a comprehensive review of complementary therapies in 2010, and the evidence did not support extending coverage to services provided by complementary therapy providers under the Gold and White Card arrangements. The Government considers that, at the current time, there is not sufficient evidence available to support broader access to complementary therapies through DVA funded treatment arrangements.

DVA funds the Australian Centre for Posttraumatic Mental Health to provide advice on emerging evidence on new treatment modalities for mental health, and is consulting with the Centre on the emerging evidence for potential adjunct therapies (such as art or music therapy) that could complement evidence-based treatment in the future.[6]

7.6        Similarly, DVA explained that it funded 'treatment on the basis of a clear evidence base in consideration of a fundamental duty of care to our client group; to ensure that treatment is safe and clinically effective; that treatment represents a cost-effective expenditure of public money; and that funding of treatment is consistent with the broader approach across government and the health care system'. It considered '[m]ost "alternative non-medical treatments" or alternative therapies do not presently have any reliable evidence-base to support the claimed clinical benefits'. It stated:

In recent years, DVA has received a range of requests to fund alternative therapies on the basis of claims that they constitute treatment of mental health conditions, particularly PTSD. These have included assistance dogs, art therapy, equine therapy, gardening, trekking and bush retreats. All general requests of this nature are declined due to the absence of a reliable evidence base.[7]

7.7        However, while not specifically referring to alternative therapies, the RANZCP considered that it was important to 'acknowledge the limitations of evidence-based guidelines in policy development':

Despite their importance in informing frontline treatments, it is important to recognise that a significant percentage of treatments are provided outside evidence-based guidelines, particularly when treating veterans with more severe comorbidities and chronic illnesses. Increasingly, the RANZCP is concerned that evidence-based guidelines may be being used to restrict services. A recognition of this significant issue appears to be missing in the policy approach, resulting in system deficiencies when addressing the needs of the more severely ill and disabled veterans.[8]

7.8        DVA highlighted that a Veteran & Community Grant may be available to support an organisation to undertake activities which support the well-being of veterans. Further, DVA provides rehabilitation programs which can support a range of activities appropriate to a veteran's needs:

These may be psychosocial activities, which aim to improve life management skills, health self-management skills, social connectedness and meaningful engagement with family and the broader community. A rehabilitation program therefore may include, for example, short term yoga or meditation courses, illness-self management programs, or community/adult education courses such as music, art, or photography.[9]

7.9        In relation to assistance dogs, DVA differentiated between service dogs and companion dogs. DVA provides funding for service dogs where the client meets the criteria for eligibility and clinical need and where a service dog is considered the most cost effective and clinically appropriate option. However:

DVA does not fund companion dogs, such as for the treatment for mental health conditions, due to the lack of research based evidence. Overseas studies into the effectiveness of companion dogs in helping people with mental health conditions, including one by the US Department of Veterans' Affairs, may assist in addressing this evidence gap. DVA is closely monitoring the progress of the US study, which is due for completion in 2018.[10]

7.10      DVA has outlined that it is 'maintaining a watching brief on existing international research regarding the clinical efficacy of assistance dogs in treating veterans' and will 'continue to be informed by the literature and national and international experts regarding the appropriateness of these interventions into the future'.[11] A joint project is currently being undertaken between Royal Society of the Blind's Operation K9 and the University of Adelaide that aims to examine the longitudinal impact of the Operation K9 Assistance Dog Program on participants' health and wellbeing.[12] A study being conducted by the US Department of Veterans' Affairs has been temporarily halted and no conclusions are expected to be released until 2020.[13]

Recruitment and resilience

7.11      The annual recruiting targets for Defence Force Recruiting (DFR) averages around 8,000 per year. The recruitment assessment process includes Defence interview, psychological interview and a medical assessment (by a Doctor) to determine suitability and readiness. Defence stated:

Entry medical standards are agreed by each of the Services. Since 2008 these have been contained in the Defence Health Manual, which requires strict application of those standards.

A past suicide attempt and/or current psychiatric condition are both current exclusion criteria for DFR. Mental health issues are explored in both medical and psychological assessments. In addition, the DFR psychological interview also examines other aspects of psychological suitability for service, including maturity, educational and employment history, interpersonal skills, motivation for military service, resilience, and adaptability to military employment.

The standards vary depending on the underlying condition, current functioning and future risk, and are informed by psychiatrists and current clinical evidence. The entry medical standards in general are conservative in the mental health space, as military service places stressors that increase the risk for depression and anxiety on individuals (known factors which increase the risk for depression or anxiety symptoms include regular moves, regular job changes, removal from social and family support, removal  from access to health support, fatigue and altered work hours often involving shift work and disturbance of circadian rhythm and exposure to potentially traumatic events).[14]

7.12      Defence acknowledged that, as assessments rely on candidates accurately reporting their medical history, inclusive of mental health, there was potential for under-reporting. It noted this risk was mitigated by a number of factors including assessments being conducting by at least three experienced health practitioners (doctors, nurses and psychologists) and candidates signing statutory declarations.[15]

7.13      The NMHC report recommended that '[t]he widespread perception that deficiencies exist in the recruitment processes for Defence should be further examined utilising a rigorous methodology to ascertain whether there are points of weakness in the current processes that may lead to unsuitable candidates being accepted for service'.[16] In relation to this recommendation, the Australian Government responded:

The quality of processes and decision making within Defence Force Recruiting is of a high standard and is regularly assessed. The Services reaffirmed in 2016 and 2017 that the risk tolerance in recruiting with respect to mental health assessment was appropriate and should be maintained. The processes and decision making within Defence Force Recruiting will continue to be reviewed regularly, to confirm they remain appropriate and align with requirements and expectations of the Services. A targeted communication strategy is being developed to inform key Defence personnel regarding Defence Force Recruiting, the contract framework, the delivery of recruiting services and the level of Commonwealth oversight in place.[17]

7.14      Recruitment practices and appropriate resilience training were also issues raised by submitters to the inquiry. Mr Ken Park recommended that 'the psychological testing of recruits and the process of allocation to trade/corps be reviewed in order to better identify those unsuitable for combat roles'. Further, he considered the 'training of servicemen should include some exposure and desensitising to death and injury'.[18]

7.15      ADSO argued for a more holistic approach to resilience-building for ADF members and that resilience support should continue into civilian life. It recommended identifying a 'Defence-DVA resilience pathway that includes in-service resilience training, transition, rehabilitation, Non-Liability Health Care and VVCS'.[19] Similarly, Mr Max Ball suggested the committee consider whether 'resilience needs to be a key factor in selection' and 'whether training for people in the ADF should take into account specific matters of training which improve resilience'.[20]

[L]ife in the military begins through recruit training which is designed to 'knock them down' in order to 'rebuild them' in a different mould...Recruits learn to unquestionably follow orders among the many other essential military skills and requirements in order to function within the organisation. In effect members are deliberately institutionalised with an emphasis on high levels of personal discipline, a sense of belonging and elitist mentality.[21]

Coordination and awareness of services

7.16      There are complex range of services and programs that veterans may be able to access. These include services from DVA and other federal agencies as well as supports such as mental health and suicide prevention programs which exist in each state and territory jurisdiction.[22] Mr Simon Lewis, the Secretary of DVA, identified 'one of our gap areas is that we really did not have a broader relationship with the state or territory governments at all'.[23] In this context, on 25 November 2016, there was an initial meeting of ministers responsible for Veterans' Affairs from federal, state and territory governments. The Ministers agreed:

• that each state and territory would work with the Commonwealth to develop standardised military service history indicators to use in national and jurisdictional data collections for suicide and homelessness. This will improve the quality of data collected and lead to better service delivery.
• to pursue inclusion of a military service related question in the next Census to greatly improve our understanding of the veteran community.
• the Commonwealth will investigate a mechanism to advise states and territories when Australia Defence Force (ADF) personnel are medically-discharged to help better plan the provision of support services.
• the Commonwealth will ensure that all medically-discharged veterans have a Medicare card when they separate from the ADF.
• New South Wales, Victoria, Western Australia and South Australia are collecting data on veteran incarceration and all other states and territories have agreed to explore collecting this data.
• New South Wales and Victoria have specific programs to address veterans' homelessness, and information on these programs will be shared with all other states and territories.
• state and territory governments will provide information on their services as part of every ADF transition session for personnel leaving the military.[24]

7.17      ESO's also provide a broad range of services to veterans. For example, the RSL South Australia noted that it provided 'advocacy services for veterans claiming entitlements with DVA; social welfare in the form of rent, utility, vehicle expenses, education expenses and food vouchers; assistance for veterans with PTSD via peer-to-peer counselling and Operation K9 assistance dogs; crisis homeless accommodation services with Homes for Heroes; and reintegration and reconnection programs with RSL Active'.[25] Similar, Mr Sauer from Mates4Mates explained the five streams of services provided to veterans through that ESO. These included physical training, psychological support, rehabilitation challenges, employment and education and social engagement.[26]

7.18      Some perceived the need for better coordination and collaboration between DVA and ESOs. For example, Mates4Mates thought 'that positive collaboration is happening between ESO and DVA in some pockets...[but] there is scope for more direct & practical collaboration to occur'. It suggested that '[m]ore formalised and regular opportunities for collaboration will allow many ESO's, particularly the smaller ones, to be in a better position to assist with dispelling myths and help create more positive experiences of the DVA process for veterans'.[27]

7.19      Bravery Trust provided an example of how DVA and ESOs could provide tailored and coordinated support to veterans:

When a liability claim is submitted to DVA and the DVA case manager calls the veteran to commence the process, they should make a judgement about whether the veteran is or could be in financial hardship. If the veteran appears to be in a position of financial hardship a referral to Bravery Trust should be made immediately. Bravery Trust was specifically established to be a financial safety net in these circumstances.[28]

7.20      The challenges for veterans seeking support to find appropriate services were highlighted during the inquiry. Brigadier Hanna from the RSL SA noted that '[t]here are all sorts of organisations seeking to do good work and achieve many good things, but it is quite a maze to navigate...'.[29] Professor Andrea Phelps from Phoenix Australia considered there was a lack of a 'coherent process for people to navigate that system':

It is a little bit hit and miss: depending on where you happen to go for help first might determine whether you get into a PTSD program or whether you get help for your family member. Again, there is probably no simple solution to this, but if everyone in the service system understands and is aware of their role and how that fits with all of the other components of the service system—if there is a map that is available for people to actually see how all of that fits together—that would be of great assistance in getting a more consistent approach so that people do get access to the services that they want. Whether that is a single point of entry or whether it is just that everyone knows who all of the other players are and what they have to offer—that it is not seen as a competitive system between those various components, but that it is very much a collaborative approach.[30]

7.21      Similarly, Solider On commented:

The maze of services, programs, entitlements and subsidies serves to confound and overwhelm veterans and their families leaving them feeling like they are confronting the night sky, as one spouse of a veteran told Soldier On, "[T]here are many bright shiny places to go, but out of the hundreds of options, where are we meant to go? What we need is a map, we don't need more stars".[31]

7.22      Mr Briggs from Slater and Gordon Lawyers highlighted the confusing variety of services available to veterans:

These groups are attempting to deliver Veteran-specific care but it appears there is now, like in the US and UK models, a plethora of different approaches, interventions, philosophies and possible outcomes. I would suggest the sheer variety of solutions may in some cases only cause greater confusion amongst Veterans with psychological injuries, but we would defer this issue to the medical specialists for further comment. I can advise that one size does not fit all and many of my clients report being confused by the multitude of available services. They do not know where or who they should turn to for their specific needs. Furthermore, this overlapping means many organisations are actively competing against each other for funding. Public donations are being spread over the multitude of existing support groups and service providers.[32]

7.23      Mr Briggs proposed 'a clear and concise mapping of the numerous organisations within the ADF support field for Veterans and their families and where necessary, consolidation of particular groups so that Veterans may be adequately supported by the services available to them and to avoid the wasting of resources'.[33]

7.24      Bravery Trust also perceived need for ESOs to enter a reform process consistent with the Veteran Centric Reform agenda of DVA. It stated:

Duplicating or replacing services provided by others is wasteful. Looking to the past for a vision of successful veteran centric delivery will not introduce the change necessary. Fresh, agile and innovative service delivery models are required between ESOs. Bravery Trust believes that this will inevitably lead to consolidation of service delivery by ESOs as well as ESO consolidation itself.[34]

7.25      Mr Johnson proposed DVA should work to develop a services portal for veterans and their families which better outlines the range of support services available to veterans and which enables veterans to better access point-in time data about the status of their claims and case details.[35] Along the same lines, Mr Ventham suggested a national publicity campaign for an information hub, so veteran family members and friends knows where assistance for veterans is available. He stated:

Help does exist for people in the veteran community who know where to look but information is fractured and services are poorly publicised. An ongoing and major publicity campaign should not be quarantined to veteran communities. A one-stop web portal and helpline – independent from the Department of Veteran Affairs should be properly funded so every contact from family and friends can be followed up and veterans in crisis can be triaged and referred to appropriate help services in their area.[36]

7.26      The NMHC report recommended that the ADF and DVA should consider 'how to better promote the services that are available to current and former serving members and their families so that awareness of the range of services and how to access them is increased'.[37] The Australian Government response noted that 'DVA and Defence have a number of mechanisms in place to promote their services and will continue to utilise and expand on these mechanisms'. In particular, it highlighted:

An advertising campaign is underway to promote access to mental health services for veterans without the need to submit a claim for compensation through non-liability health care arrangements. This campaign will include online media to particularly target at-risk young men.[38]

Advocacy

7.27      From 1 July 2016, the Advocacy Training Development Program (ATDP) replaced the previous Training Information Program (TIP) for advocates for veterans. The ATDP introduces a nationally accredited competency based training program in compensation and welfare for advocates. DVA outlined:

The ATDP will introduce a nationally consistent learning framework (courses, assessment, Recognition of Prior Learning, accreditation) based on advancements in learning and development practices, supported by on the job training and mentor support. The ATDP will also establish a Community of Practice, a network of advocates and community members who support one another within a city or region, which will encourage collective learning and knowledge sharing...

The ATDP will help to alleviate the mental health concerns of current and former serving ADF members and their families around accessing their entitlements by ensuring, through high quality advocacy services, that their claims are not delayed through inaccurate advice or incomplete claims. Into the future, current and former serving ADF members and their families will have access to a list of accredited advocates who they can choose from to give them advice and assist them in accessing their entitlements.[39]

7.28      Advocacy and welfare support to veterans is provided through partnership arrangements between the DVA and the ESOs. Key programs include:

• Building Excellence in Support and Training (BEST) Grants Program;
• Veteran and Community Grants (V&CG) Program; and
• the Veterans' Indemnity and Training Association (VITA).

7.29      In particular, the Building Excellence in Support and Training (BEST) grants program supports ex-service organisations (ESOs) to provide compensation and welfare assistance to the veteran and Defence community. Ms Lisa Foreman, First Assistant Secretary, Rehabilitation and Support at DVA explained:

The funding for BEST is worked out according to a formula, which has been agreed with the ESO round table. The formula picks up the number of advocates an ex-service organisation has, as well as the type of work that those advocates do and the number of cases that they have had...We spend $3.8 million on the Building Excellence in Support and Training and $1.2 million on the Advocacy Training and Development Program.[40]

7.30      A DVA Review of DVA-funded ESO Advocacy and Welfare Services in 2010 found that the 'Australian model whereby ex-serving members voluntarily take on a role to assist in claims preparation is one that to date has worked very well and should be continued'.[41] However, significant concerns were raised during the inquiry regarding the future of the current advocacy model.

7.31      A large portion of the volunteer advocates which the system relies on are from an older age group. The Aspen Foundation ESO Mapping project found:

Just over half of the ESO pension support workforce capability (51% of TIP Pension Officers, and 58% of volunteer VRB advocates), are 68 years of age or older.

With a 10 year planning horizon, most of those volunteer pension officers and VRB advocate volunteers will not be as active in 10 years' time as they are now, thus reducing the capacity of this national capability.

Significant effort is required to ensure there is another generation of volunteers being recruited, trained and mentored (while they gain experience) to continue this important work.[42]

7.32      The RSL emphasised that the thousands of volunteers, advocates, pension officers and welfare officers were as an essential element of the system and necessary for veterans to deal with the DVA. It noted:

Like many other environments, the volunteers involved in this are overwhelmingly older, and not being replaced by adequate numbers of younger individuals. Both the decreasing number of volunteers and the complexity of supporting veterans with claims under the [MRCA] are creating the need for paid professionals to deliver advocacy and welfare services through agencies such as RSL DefenceCare.[43]

7.33      The prospect of an insufficient number of advocates in future was highlighted. Colonel David Jamison from the ADSO noted:

[W]e have an ageing population of volunteer advocates, we have an increasing complexity in handling claims and we have a new, emerging system of training and accreditation of advocates. I see that the implementation of moving from the old to the new system is going to produce a gap in both numbers and expertise that, unless we are prepared to fund personnel to carry on that work, is going to be very difficult to handle.[44]

7.34      Mr Julia Langrehr from RSL SA noted that ESOs receive 'very little funding' for advocacy services 'certainly not enough to provide the service adequately'. Despite a busy advocacy workload for veterans in South Australia and the Northern Territory, RSL SA only had three paid advocates under the BEST funding program with the rest of the work being undertaken by volunteers.[45]

7.35      Mr Ball stated that 'the previous successful model of having volunteer advocates is now declining'. While he supported recent changes to improve the training and qualification of advocates through the ATDT program he described it as 'little bit too late or not enough'.[46] In particular, he noted that 'not all trained advocates are equally competent'. Mr Ball argued that previous discussed options for the employment of professional (paid) advocates 'required a higher level of discussion'.[47] He did not consider it was 'unreasonable for a veteran claimant to be given the option of using a professional advocate, and making a financial (but not total) contribution to the cost of that advocate, or to seeking the help of a volunteer advocate'.[48] He stated:

[M]y concern is that with the decline in volunteerism, the decline in numbers and the generation gap between what we call the pre- and post-1990 veterans the number of trained volunteer advocates will decline. We need new, younger advocates in an era where younger veterans, in my opinion, are seeking greater levels of competency in their advocates.[49]

7.36      Mr Ball also proposed that 'there is a need for the government to provide financial support to veterans who wish to employ para-legal or qualified lawyers to assist them when they enter the DVA claims process'.[50]

7.37      Some of the advocates the committee spoke with were overworked and cynical about DVA reforms to claim processing and advocacy training. For example, Mr Ken Parnell stated:

Currently, I would say 30 percent of the advocates I know will not be continuing on because of the new alterations with TIP, which is the training system through DVA to ATDP. They have had enough.[51]

7.38      The stresses imposed on volunteer advocates were also raised. RSL DefenceCare stated '[t]he fact that DVA has allowed veterans who they classify as TPI and unfit for work (their clients who have known injuries and illnesses) to provide advice on complex legislation to others who are the DVA's potential clients and who are also potentially suffering physical and mental ill-health issues, without professional support is beyond comprehension, especially when we know the potential effects...'.[52]

7.39      Appropriateness of advocates representing veterans in all forums also was questioned. Mr Brian Briggs from Slater and Gordon Lawyers observed:

To expect even a Level 4 advocate with no legal background to run a case in the AAT against a DVA retained private law firm engaging barristers is nothing short of a 'David vs. Goliath' battle. Advocates are not trained in running an AAT application on to Federal and High Court Appeals. DVA do not fund such legal training through BEST grants and TIP training. As a result of such overwhelmingly stacked odds in favour of DVA, the loser will ultimately be the Veteran.[53]

7.40      The training and expertise of advocates was also raised. Mr Anforth, a barrister, questioned the appropriateness of advocates routinely directing their clients to claim under the VEA:

These advisors are trained by the Repatriation Commissioner in the Department of Veterans Affairs. Their training is almost wholly directed to VEA with some MRCA but no SRCA...The lack of any knowledge on SRCA explains their failure to take veterans down that path. Their lack of knowledge on MRCA in part explains the lack of robustness in pursuing MRCA claims, including on appeal.[54]

7.41      Mr Anforth commented:

Veterans' representatives are almost all well-meaning aging men who are trained by the DVA. They rarely have any legal background. Their age is relevant to their capacity to pick up and apply new legal concepts. Their lack of legal background is relevant to their confidence levels in taking issues with departmental lawyers and tribunal members. There is a tendency to go along with what is being said and just accept the outcome.

This compliant attitude is fostered by the fact of being trained by the very people against whom they must advocate. Caesar is training Pompey in battle tactics. There is no quality control oversight of the advocate's performances.[55]

7.42      In this context, ADSO supported the introduction of the ATDP considering that it would move advocacy from 'enthusiastic amateurism' to a semi-professional practice:

As a semi-professional practice, it will engage continuous learning and skill development. It will also challenge ESO executives to become involved in the selection and competency of the advocates they authorise to provide services to their members. Importantly, it will challenge the antagonisms and silo-mentality that has afflicted the ESO-DVA relationship for far too many years.[56]

Appeals

7.43      There are different levels of appeal pathways from compensation determinations under the three legislative schemes. Under the VEA clients may request an internal review and/or appeal directly to the Veterans' Review Board (VRB). If the client is then dissatisfied with the VRB decision, they may lodge an appeal with the Administrative Appeals Tribunal (AAT). From 1 January 2017, MRCA clients will have a single appeal pathway which aligns with the VEA. SRCA clients may request an internal reconsideration and, if dissatisfied, lodge an appeal with the AAT.[57] Appeals on points of law may be made to the Federal Court of Australia. DVA outlined:

In 2014-15 there were 48,711 primary compensation determinations made under the  [VEA], the [SRCA] and the [MRCA]. In the same period, 5,593 reviews and/or appeals were finalised by either Delegates of the Repatriation Commission or the Military Rehabilitation and Compensation Commission; the Veterans' Review Board (VRB) or the Administrative Appeals Tribunal (AAT). Of these reviews and/or appeals, 1,992 were set aside or varied.[58]

Veterans' Review Board

7.44      The Veterans' Review Board (VRB) is a specialist tribunal whose role is to provide independent merits review of decisions made by the Repatriation Commission under the VEA and the Military Rehabilitation and Compensation Commission under MRCA. The VRB considers approximately 2,900 applications for review each year. In the financial year 2015-16, the VRB set aside 48.7 per cent of the appeals. The average time taken to decide an application by the VRB was 51 weeks. 6.6 per cent of applications were appealed to the AAT.[59]

7.45      The VRB's governing legislation encourages veterans, current serving member or their dependants to present their case without for legal representation. At the VRB, over 85 per cent of applicants (that is the veteran, current serving member or their dependant) are represented, but usually by a non-legally qualified volunteer or professional paid advocate from an ESO.[60]

7.46      The VRB also has a 'Fair Hearing Obligation' in place. The fair hearing obligation sets out that VRB has a duty to ensure the right to a fair hearing including the provision of a reasonable opportunity for applicants to put their case - the right to be heard - and for the case to be determined to law by a competent, independent and impartial panel of members of the VRB. The VRB stated:

The provision of a fair hearing requires Members of the VRB to identify the difficulties experienced by any party, whether due to lack of representation, literacy difficulties, ethnic origin, religion, disability or any other cause, and find ways to overcome those difficulties and assist them through the VRB processes.[61]

7.47      Mr Douglas Humphreys, Principal Member of the VRB, highlighted the benefits of the recently introduced Alternative Dispute Resolution (ADR) program and a process for directions hearings. In particular, he noted that where matters go to ADR process 'just about 60 per cent' are resolved with 12 weeks.[62]

7.48      The Dunt review in 2009 commented that 'in general' the VRB works well, however found it surprising that 'a tribunal that is not adversarial in its approach and excludes lawyers from representing veterans, is so oriented to the law'. It noted that material for consideration is prepared by 'prepared by DVA legal staff or contract lawyers' and 'almost half of VRB members have legal backgrounds'. It observed veterans 'will either be unrepresented or if they are represented, will be represented by a volunteer advocate from an ESO'.[63]

7.49      The VRB noted that the restriction on lawyers was first introduced followed lobbying by ESOs and it was 'intended to prevent appeal hearings from becoming overly adversarial, technical and resource intensive'. It considered the prohibition continued to enjoy the support of most ESOs and noted that applicants are still able to consult lawyers prior to their hearing.[64]

7.50      Some submitters considered the rule against legal representation should be reconsidered. For example, Mr Max Ball described the situation as 'one-sided'. While there was 'nothing to prevent a veteran from receiving advice from a lawyer prior to a VRB hearing', he emphasised the stress caused to veterans 'by being denied by the government of having legal representation in a hearing', and 'perhaps being questioned themselves by a lawyer'.[65]

7.51      The Dunt review also highlighted that 'only a few VRB members have mental health, counselling or even medical backgrounds':

This is surprising given that the VRB is asked to reconsider the medical and mental health material based upon the application of epidemiology and evidence based medicine in the form of the SoPs. It is important to appreciate the strengths but also the discretion needed in the interpretation of the SoPs and their application. This will be difficult for a person with a non-medical or non-clinical background.[66]

7.52      The VRB outlined:

Our members have diverse qualifications and experience including specialist expertise that we draw on as needed, such as when hearing cases that involve psychological or mental health issues. There is tri-service representation, meaning members from all three arms of service are available to sit on hearings. Additionally, more than 40% of the VRB's members are female. As such, the VRB can convene all female panels for particularly sensitive appeals, where requested by an applicant.

7.53      RSL SA noted its advocates attended between 8 and 15 VRB proceedings per month dealing with large case files (sometimes in excess of 400 pages). While describing the VRB as generally 'very fair', it noted the burden on advocates preparing for the VRB.[67] Some veterans described their experiences at the VRB negatively. A name withheld submission from a female veteran disagreed 'with the recent decision to uphold the practice of not allowing lawyers at the VRB'. She stated:

If veterans were professionally represented, there would be a decrease in the number of VRBs because sounds decision would be made earlier. I believe The Department exploit[s] the sub-standard representation unfortunately offered by many ESO groups...Veterans are effectively participating in complex cases of Commonwealth Law, against The Department and its might of resources, without any legal representation. ESO advocates also discourage veterans from using lawyers. This is so unhelpful...

I attended the VRB with a big black eye. The OAM advocate who flew to represent me said nothing. The all-male panel that I sat before in the VRB said nothing. I felt completely disempowered, embarrassed and totally unrepresented. We presented no new evidence to progress any of the claims and could not answer questions to clarify my arguments, nor could I confidently articulate myself. There was no female panel member. It felt like an extension of the Defence Disciplinary System. My welfare was literally ignored.[68]

7.54      Mr Anforth perceived disadvantages for veterans 'in the nature of the review and appeal systems'. He noted that in appeals to the VRB:

• the veteran is not entitled to legal representation;
• the veteran usually has no money to obtain their own specialist reports to support their claims, including the medical causation issue i.e. the linkage of the injuries to service; and
• if the veteran does commission their own specialist report or subpoena a medical witness for their case they must bear the cost.

7.55      He characterised this situation as an 'unfair and unequal contest' and described the VRB has having a poor record of upholding veteran claims.[69]

Administrative Appeals Tribunal

7.56      The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. The Veterans' Appeals Division of the AAT handles applications for review of decisions under the VEA, MRCA and SRCA. Parties in the AAT are entitled to be represented by another person. The majority of applicants in the veterans' affairs jurisdiction before the AAT are legally represented which reflects the fact that there is greater access to legal aid and cost recovery in relation to veterans' affairs cases.

7.57      The AAT aims to finalise applications within 12 months of lodgement and in 2015-16, 66 per cent of Veterans' appeals applications were finalised within this period.[70] The AAT does not have a general power to award costs and the usual position is that parties must bear their own costs.

7.58      The AAT finalised 288 applications for review of decisions of the VRB in 2015-16. The AAT varied or set aside the VRB's decision in 154 applications (53 per cent). In three of the 154 applications, the applicant was the Military Rehabilitation and Compensation Commission seeking review of the VRB's decision. The claimant was the applicant in relation to all other applications.[71]

7.59      Some veterans recounted personal experiences of extreme distress related to AAT hearings.[72] The AAT Registrar, Ms Sain Leathem acknowledged 'the comments of sufferers of post-traumatic stress disorders who are self-represented before the AAT that they have found the law complex and the hearing process stressful'. She stated 'AAT will consider these comments regarding its delivery of services to this applicant group'.[73]

7.60      Mr Anforth highlighted that legal costs were a deterrent to veterans seeking review of decisions through the AAT. In particular, in practice legal aid was not available to veterans:

Even if the veteran is successful in the AAT there are no costs awarded to the veteran. This means that any lawyer acting for the veteran cannot expect to be paid from a costs order for their fees or the cost of medical reports. The veteran needs to personally fund the matter, win or lose...

The AAT Act and the Attorney General's website both assert that grants of legal aid are available to assist veterans appealing from the VRB to the AAT. This is simply not true. There are no such hypothecated funds for veterans.[74]

7.61      Due to these and other systemic disincentives, Mr Anforth noted that 'hardly any appeals flow from the VRB to the AAT'. He described the VRB as 'a de facto glass ceiling for veterans' claims'.[75] Mr Anforth stated:

This threat of legal costs from the Commonwealth is a major disincentive for veterans to appeal any adverse decision from the AAT or to attempt to defend any appeal from the Commonwealth. It is even a disincentive for the veteran to run a case in the AAT for the reason that if the veteran spends the money to do so and wins in the AAT, the Commonwealth may only appeal the decision to the Federal Court which the veteran cannot then afford to defend.[76]

7.62      Mr Anforth noted that legislated assistance to assist claimants have not 'been indexed or otherwise kept pace with changing cost structures'. He proposed that the Federal Proceedings (Costs) Act 1981 should be amended to shield claimants from legal costs. He noted that this problem also affected non-military Commonwealth employees under the SRCA.[77]

7.63      Similarly, Mr Briggs argued that the 'barriers imposed against the award of costs for a successful Veteran in the Administrative Appeal Tribunal (AAT), means that while Veterans are strictly entitled to legal representation at this stage, this will in practice see many denied that opportunity due to resource constraints'.[78] The VVFA outlined:

Initially, at appeals before the AAT, DVA provided lawyers from their own Legal Branch to put their case at the hearing. Level 4 Advocates from the VVFA and other ESOs who had received a week's training would represent the veteran on these occasions. This was a satisfactory arrangement in most cases.

In recent years DVA have retained large national law firms such as Sparke Hellmore to present their case to the AAT. A barrister would then be briefed to represent DVA at the Tribunal. Notwithstanding, the veteran would still be represented by a Level 4 Advocate, leading to a most uneven, unfair and most unsatisfactory process.

If a veteran wants to retain a solicitor or barrister, then the veteran needs to pay. DVA maintain that a veteran can get Legal Aid, but it is the case that the Federal Government has slashed hundreds of millions of dollars from the Legal Aid budget, and States and Territories tend to fund cases with the possibility of gaol. Cases involving veterans' appeals have no priority. Veterans used to have a percentage of the legal aid allocated to States and Territories for their exclusive use, but this no longer pertains.[79]

7.64      VVFA considered that there was a need to provide free and expert legal representation for veterans in the appeal process. It suggested:

The Bureau of Pensions Advocates (BPA) within Veterans Affairs Canada is a unique, nation-wide organization of lawyers that provides free legal help for people who are not satisfied with decisions about their claims for disability benefits. This model would address the legal imbalance currently occurring in veteran appeals in Australia.[80]

7.65      In response to this issue, DVA stated that it and its legal representatives 'do not use the issue of legal costs to dissuade veterans from pursuing appeals regarding their entitlements':

Generally, before the AAT each party bears their own costs, although under section 67 of the [SRCA] and section 357 of the [MRCA], the AAT may in specified circumstances order that the Commonwealth pay the costs of the veteran claimant. There is no scope under the [VEA] for the AAT to order the Commonwealth to pay the veteran's costs. However, it is noted that veterans may be able to access legal aid in the review of specified VEA decisions before the AAT without having to satisfy a means test.[81]

7.66      The AAT provided the committee with statistics on types of representatives in Veterans' Appeals in 2015-16.[82]

Issues

7.67      The view that DVA had an adversarial approach to claims was repeated in relation to appeals. Dr Andrew Khoo restated a previous submission he had made in 2012:

The majority of veterans and advocates (whom I have contact with) impression is that a steadily increasing proportion of claims seem to be proceeding to the Veterans Review Board and the Administrative Appeals Tribunal, which indicates that the DVA are looking for reasons not to provide compensation rather than ways to support their clients.[83]

7.68      DVA noted that it must comply with the Attorney-General's Legal Services Directions 2005, incorporating the Commonwealth's obligation to act as a model litigant in the conduct of all litigation. However, several submitters questioned whether DVA or their lawyers were consistently acting as model litigants.[84] Mr Peter Larter, an advocate, described a 'terrible culture within DVA' and instances of bullying, intimidation and 'blackmail by the contracted law firm that DVA use' against advocates.[85]

7.69      The AAT stated that in the period from 1 July 2015 to 6 February 2017, the Tribunal did not approach the Department of Veterans' Affairs with any concerns about the conduct of its representatives in veterans' entitlements and military compensation cases. However, it also noted that 'one decision was published in this period in which a member of the AAT stated that he felt certain conduct may not have been consistent with the model litigant obligations'.[86]

7.70      Others felt that DVA were wasting resources in defending appeals. For example one veteran objected to the 'extraordinary amounts of taxpayer money spent on AAT lawyers, and the time spent on VRB, and by DVA and clients, only to have the cases overturned with barely any effort except for wasted time and money'. He noted that he had experienced 'DVA lawyers twice roll over on the actual day of both AAT hearings... this means that no case law was published, and therefore cannot be used in another case as a precedent'.[87] Mr Peter Reece described the framework of appeals to the VRB, AAT and the Federal Court as 'just crazy' noting that 'people get worn down':

They cannot handle the legalisms of it. The legal fraternity cannot cope with it. It is just a shambles. If you persist and you have the right sort of assistance from the ex-service organisations, where people know this complex system, you will get there in the end, but it could take years, and that kills people. It completely breaks them down. It ought to be quick, it ought to be transparent and it ought to be a meeting. It is none of those things.[88]

Committee view

7.71      The committee received compelling evidence from veterans with mental health conditions and those that support them concerning the benefits of a range of alternative therapies. They felt that these alternatives therapies had significantly improved their conditions. Several gave evidence that their lives had been saved through having access to these treatments.

7.72      While the committee accepts the position the evidence base is still developing in relation to many of these alternative therapies, several are already being provided through ESOs and other groups to veterans. In the view of the committee, there is scope to expand and reshape existing programs to take into account the provision of several alternative therapies to veterans. In particular, the Veteran and Community Grants program provides funding for projects that support activities and services to sustain or enhance health and wellbeing of veterans.

Recommendation 20

7.73      The committee recommends:

• the Australian Government expand the Veterans and Community Grants program to support the provision of alternative therapies to veterans with mental health conditions; and
• the Department of Veterans' Affairs consult with ex-service organisations and the veteran community regarding avenues to reform the Veterans and Community Grants program to support the provision of alternative therapies to veterans.

7.74      The committee also sees value in ensuring that an evidence base for supporting the use of complementary treatments, such as the effectiveness of companion and assistance animals, is developed. The committee believes that to ensure clear and relevant evidence is being gathered these research projects should be delivered and conducted within Australia.

Recommendation 21

7.75      The committee recommends the Australian Government fund a trial program that would provide assistance animals for veterans with Post Traumatic Stress Disorder (PTSD) stemming from their military service in order to gather research to support the eventual funding of animals for veterans with PTSD and/or other mental health conditions through the Department of Veterans' Affairs.

Assisting veterans and their families navigate services

7.76      The complex range of DVA and ESO services available for veterans, as well as those offered by federal, state and territory governments for the general population, was identified as a barrier to veterans accessing assistance. Veterans frequently reported lacking awareness of services or struggling to navigate the support services that were available to them. There is a need to develop a single website and information service that can operate to link veterans with local services and support, particularly ESOs.

7.77      Initially, information will need to be collected on available services, their eligibility and service area. This database or map of service can then be utilised to advise and direct veterans and their families to appropriate and available to them. This initiative will require ongoing maintenance to ensure it is relevant and up-to-date. It should also be public to facilitate coordination and cooperation by ESOs and community groups. 

7.78      The committee considers that the Veterans and Veterans Families Counselling Service (VVCS) is the most appropriate organisation to take on this role. It is trusted in the defence community and received significant praise for the services it offered during the inquiry. The committee is also hopeful that linking information services with the primary counselling component of VVCS may assist to reduce stigma in taking the initial steps to seek assistance for veterans who may have mental health conditions.

Recommendation 22

7.79      The committee recommends that the Australian Government provide funding to support the Veterans and Veterans Families Counselling Service:

• create and maintain a public database of services available to veterans; and
• provide an information service to assist veterans and families connect and access appropriate services provided by ex-service organisations and others. 

Advocacy and appeals

7.80             The committee has been disturbed by the accounts of veterans, advocates and lawyers in relation to the appeals process. On the evidence received, the committee is persuaded that an adversarial approach to appeals appears to have been taken by DVA and its lawyers in some cases. The committee is concerned that contracted lawyers representing DVA are not always acting in accordance with the Commonwealth's Model Litigant Guidelines. There are significant access to justice issues in relation to the DVA's capacity to use legal costs to deter appeals by veterans and other claimants. Structurally, the system for appeals through the VRB, AAT and Federal Court of Australia seems to be unfairly weighed against veterans seeking review of decisions. Access to legal aid to appeal decisions by veterans is limited.

7.81             Further, the committee has serious concerns regarding the sustainability of advocacy services to veterans. The volunteer advocacy system is under serious stress and is unlikely to be able to meet the needs of veterans into the future. There are also conflicting interests in DVA being responsible for the training of advocates who will then be charged with arguing against the decisions of DVA officers on behalf of veterans.

7.82             The committee recommends the establishment of a Bureau of Veterans' Advocates (BVA) institutionally modelled on the Bureau of Pensions Advocates in Canada. This would consist of a section of legally trained public servants with a mission to independently assist and advocate for veterans in making claims. The BVA will supplement and support the current system of volunteer advocates. Where necessary, the BVA will be allocated a budget to commission legal aid to assist veterans make appeals. The BVA will also take over responsibility for grants to ESOs regarding advocacy, training and accreditation of volunteer advocates and insurance issues.

7.83             This recommendation is not, in any way, to denigrate the work of the current cohort of volunteer advocates and those supported by ESOs. The committee was deeply impressed by many dedicated advocates committed to supporting veterans make their claims. Volunteer and ESO supported advocates will continue to be needed to assist the vast majority of veterans make claims. However, while legal representation should be avoided, any compensation system will be inherently adversarial in some circumstances. There should be a level playing field between DVA and veterans in relation to appeals. If DVA chooses to engage external legal representation to conduct an appeal, the BVA should be able to arrange and provide appropriate legal representation on behalf of the relevant veteran. If veterans choose to use their own legal representation, that option will still be open to them.

Recommendation 23

7.84      The committee recommends that the Australian Government establish a Bureau of Veterans' Advocates to represent veterans, commission legal representation where required, train advocates for veterans and be responsible for advocate insurance issues.

Veterans' Review Board

7.85      In this context, the committee holds a concern regarding whether the established practice of excluding veterans' lawyers from the VRB is appropriate in all cases. A number of examples were provided where vulnerable veterans felt underrepresented or unable to fairly engage with VRB proceedings. The committee accepts that this practice has been maintained in order to allow the VRB to be an open and non-adversarial forum for veterans to seek review of decisions. The committee also acknowledges the genuine efforts that the VRB makes to support veterans in its proceedings.

7.86             However, given the long-term future of veterans is in the balance, and the structural barriers involved in making an appeal to the AAT, veterans should be able to achieve the fairest hearing possible. A universal prohibition on legal representation may not reflect the ranges of circumstances of veterans before the VRB, nor can it be described as 'veteran centric'. In the view of the committee, it is time that representation before the VRB is independently reviewed to assess if it still appropriate for all veterans. There may need to be additional supports put in place to ensure veterans are appropriately represented before the VRB or criteria may need to be developed to allow classes of vulnerable veterans to be legally represented. The Australian Law Reform Commission would be an appropriate body to conduct this review.

Recommendation 24

7.87      The committee recommends that the Australian Government establish an independent review of the representation of veterans before the Veterans' Review Board. This review should assess whether the rights of vulnerable veterans are being adequately protected and whether further support mechanisms for veterans appearing before the Veterans' Review Board are required.

Senator Alex Gallacher
Chair

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