The medical transfers regime created through the "Medevac" law is working as intended, to allow for independently-assessed and timely transfers of patients from offshore detention to Australia for treatment of chronic and complex conditions.
The evidence presented at the inquiry demonstrates the current law complements the department's pre-existing transfer regime—which has too often been slow and overly-bureaucratic—but rightly puts the ultimate decision of whether a sick refugee needs to be medically transferred in the hands of medical professionals, not a bureaucrat within the Department of Home Affairs.
The clinical reviews conducted under the Medevac process have also enabled Australian doctors to properly assess and understand the burden of disease in asylum seekers and refugees in Papua New Guinea and Nauru – and the inquiry into this bill heard it has shocked many.
Dr Neela Janakiramanan from the Medical Evacuation Response Group (MERG) told the inquiry:
Some of our doctors have worked extensively in refugee camps in various parts of the world, and they call us up to debrief because they say that what they are seeing in terms of the health burden is absolutely shocking and the worst thing that they have ever seen.
Until the Medevac laws came into play in March 2019, medical transfers were secured under section 198B of the Migration Act 1958, which gives an officer the power to bring a transitory person to Australia for a temporary purpose, including medical or psychiatric assessment or treatment. However, this did not provide for a transparent, speedy and medically‑led transfer process.
The Australian Human Rights Commissions said:
…we also had concerns about the structure for the process under 198B previously, where ultimately the decision was being made by someone at first assistant secretary level within the department rather than by medical officers who have knowledge of what is required in a medical sense.
Evidence from refugee groups and the medical profession, including doctors on the ground, was that the department's pre‑existing system was inadequate, unpredictable, litigious and so distressing that some doctors had stopped working in the field.
It was all ad hoc and the oversight was at times completely lacking…I know, from feedback from doctors at the front line, that they were quite distressed at times about patients who did need to be transferred and weren't able to access the appropriate transfer. They were very, very concerned, and I know that, for some members of the medical profession performing services at that front line, it was so distressing that they had to leave that service because of that.
Before the Medevac laws, a number of medical transfer requests were only secured after cases were brought to the Federal Court or a legal case was threatened.
Based on figures provided by the Department of Home Affairs submission, it appears legal intervention occurred in about 17% of the 717 medical transfers that have occurred over almost seven years.
In its submission, the Department said 717 individuals and 626 accompanying relatives (a total of 1343 people) have been transferred to Australia and third countries for medical treatment since November 2012. About 1098 transferees remain in Australia and no‑one has been returned from Australia to a regional processing country since April 2018.
Of these, 37 cases involving 96 people were transferred as a result of court orders. As the department acknowledged in its submission, lawyers persisted with some of these court cases because the transfer was not happening quickly enough.
In a further 90 cases involving 220 people, the Department reviewed and approved transfer requests after lawyers had foreshadowed legal proceedings. That indicates a flawed system, where lawyers regularly needed to flex their muscle in order to secure the treatment doctors had recommended.
The Human Rights Law Centre stated it participated in 48 pro‑bono cases brought to the Federal Court between December 2017 and February 2019—some of them on weekends or at night due to urgency—for 'serious medical conditions including psychosis, sepsis, encephalitis, resignation syndrome and pregnancy complications in which the life of the unborn child and mother were put at risk'. All were successful, and resulted in the transfer of more than 340 people.
Twelve people died in offshore detention in the five years before the Medevac laws were passed, and patients recommended for medical transfer averaged a wait of two years, and up to five years, before transfer was secured.
According to an audit of medical records of Medevac applicants, conducted by Dr Janakiramanan and her MERG colleague Dr Sara Townend, 97 per cent of the refugees and asylum seekers on Nauru and in PNG have significant physical health issues and 91 per cent have significant mental health issues. Given this is an independent and objective assessment from trained doctors, these are staggering numbers and they demonstrate why the Medevac laws were needed, and why they remain important.
According to Dr Townend's evidence, some of the presenting health conditions have arisen through detention (for instance, a large number of patients with kidney stones due to poor diet and hydration) and other conditions have become chronic because they were not well managed from the outset (for instance poorly or untreated fractures leading to limb deformity).
As a clinician, often those clinical files are heartbreaking to read because you see the recommendations of the doctors over and over again—that this patient requires transfer to an appropriate facility for a specialist procedure or test—from 2015.
The inquiry heard that the standard of healthcare offered in PNG and Nauru can be inadequate, particularly for serious cases. This was highlighted in the preventable death of Hamid Khazaei in 2014, whose death began with a leg infection which spiralled into sepsis due to lack of antibiotics and his woeful care in PNG and ended with his death shortly after his delayed transfer to Brisbane.
The first quarterly report from the Independent Health Assessment Panel (IHAP), created under the Medevac laws, gives a recent snapshot of the health services in PNG and Nauru. It noted while general healthcare services are 'reasonable', the mental health facilities in Nauru in particular are not up to the job for the high number of psychological presentations and mental health admissions.
In respect of mental health services, there are significant numbers of mental health workers but (unlike PNG) there is no access to high quality inpatient psychiatric care in Nauru and patients with severe mental illness and at high risk of suicide should be transferred to a hospital with appropriate inpatient psychiatric care.
The IHAP noted some asylum seekers in PNG had tested positive for typhoid. It also noted that specialist medical care is not readily available on Manus and that, while there were mental health services for people who can walk themselves to a clinic, there was no access to psychiatric intensive care or electro-convulsive therapy in PNG.
The Medevac laws have worked to secure timely transfers of patients with established clinical need—as intended. In fact, the only witnesses at the public committee hearing who supported repealing the Medevac Laws through this bill were those from the Department.
Over the period from March to the end of July 2019, 72 people were transferred to Australia under the Medevac laws (with four accompanying family members) and a total of 154 people had applied. A further 54 people (at least 9 of them accompanying family) were transferred under the pre‑existing provisions of the Act.
The IHAP steps in to review transfer applications which have been rejected by the Minister and, within 72 hours, assess whether there is an overriding clinical need and approve the transfer. The Minister can only overturn these based on national security or character concerns.
According to the Department, the panel reviewed 23 refusals between March and the end of July and overturned 10 cases, recommending them for transfer.
None of the 154 applications made by July have been knocked back by the Minister on national security or character grounds.
The IHAP also provides an independent monitoring function of the available health services and standard of care on Nauru and PNG and this would be lost if the Migration Amendment (Repairing Medical Transfers) Bill 2019 was passed and the Medevac laws repealed.
Looked at objectively, the Medevac laws do no harm and only do good—at the very least sitting in complement to the pre‑existing transfer provisions under s198B.
It is important to note that the Medevac laws have not "restarted the boats".
It is important to note that the Medevac laws only apply to people who are already in PNG and Nauru and don't create a "pull factor" for future arrivals. It does not provide a pathway to settlement in Australia.
In fact, doctors and lawyers gave evidence to the inquiry that, should the laws be repealed, there would be a risk of worsening physical and mental health outcomes and an increased risk of death and disability for those in PNG and Nauru.
Removing a fair, transparent and doctor‑led process for accessing essential, and in many cases, life‑saving medical care is illogical and unnecessary. Without the Medevac laws, we are extremely concerned that the Australian Government's failure to provide appropriate and timely medical care will result in more preventable deaths offshore.
The government and department have not advanced sufficiently solid grounds for abolishing the Medevac laws. The Department argued that the narrow character grounds may not capture everyone of concern but witnesses countered that potential risks can be mitigated.
For instance, those transferred to Australia for medical treatment are detained while they are onshore, and the Minister decides whether this is in the community or in a detention centre. As stated by the Law Council, 'this means that any potential risk posed to the Australian community will be managed in practice'.
Other witnesses noted that the scare tactics and fears raised by the Government after the Medevac reforms were passed have not come to pass.
All of the scaremongering and all of the rhetoric about flooded hospitals, blown out waiting lists and opening the doors to people of bad character coming to Australia—none of it was ever true. Nor is it true that the medevac legislation has encouraged an increase in episodes of self-harm. The incidents of self-harm related to declining mental health were increasing before medevac and was one of the reasons it was needed.
The sky hasn't fallen in with the 1,084 people who've been brought back and nor have the boats resumed, as was clearly a concern stated by government. In fact, we've seen people being resettled to the US from Nauru and from PNG. We've seen many people being brought back for the critical medical treatment they need. What we see is not in fact the problems that those fears sought to provoke. They just haven't materialised.
The laws are working. They are supported by the people at the frontline of decision making for medical transfers—doctors themselves—and have not resulted in any of the negatives with which the Government sought to scaremonger and frighten the Australian public.
In light of all this, it makes no sense to repeal the Medevac laws and, indeed, to do so potentially and needlessly puts these already vulnerable people at risk.
Recommendation
Centre Alliance recommends that the bill not be passed.