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Medical colleges unite to defend Medevac legislation

Arti Chetty, Malvina Hagedorn, Stephanie McHugh, Felicity Iredale, Rebecca Olle

In the face of a potential repeal of Medevac legislation through the Migration Amendment (Repairing Medical Transfers) Bill 2019 (the Bill), eleven of Australia’s peak medical bodies have united to call for the Medevac legislation and Independent Health Advice Panel (IHAP) to be maintained by the federal parliament.

The Royal Australasian College of Physicians says that the legislation has “improved access to appropriate healthcare for refugees and asylum seekers” and ensures critically ill people “receive the medical treatment that they need in a clinically appropriate timeframe”.

The Australian Medical Association has also continuously advocated for refugees and asylum seekers to receive quality health care and supports the stance taken by the medical colleges.

Of the 104 public submissions received by the Senate Committee, only two — made by the Department of Home Affairs and International Health and Medical Services, a government-contracted health provider on Nauru — supported the repeal.

We understand that the Senate will vote on the Bill in the next sitting period which occurs 11 – 14 November 2019.  Tasmanian Senator Jacqui Lambie’s vote will decide whether the Bill is passed, or whether the Medevac framework will remain in place to allow critically unwell people to receive medical assessment and treatment in Australia.

What is the Medevac legislation?

The Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (the Act) amends the Migration Act 1958 (Cth) by allowing refugees and people seeking asylum currently held in regional processing centres in Papua New Guinea (PNG) and Nauru to be medically evacuated to Australia for assessment and treatment.

How does it work?

The Act requires two or more treating doctors to recommend to the Minister that the patient:

  • requires medical and/or psychiatric assessment or treatment; and
  • is not receiving appropriate treatment in PNG or Nauru; and
  • needs to be removed from PNG or Nauru for appropriate treatment.

Once notified, the Minister must decide within 72 hours whether the patient meets these threshold requirements.  If the Minister fails to make a decision within the 72 hour time frame, there will be deemed approval for medical evacuation.  The grounds for denial include the Minister:

  • reasonably believing treatment is not necessary;
  • reasonably suspecting that the patient poses a security risk; or
  • knowing the patient has a criminal record and would expose the Australian community to a risk of criminal conduct.

If the Minister refuses the transfer on the basis that the treatment is not necessary, the decision will be referred to IHAP for a further clinical assessment.  IHAP comprises members with a wide range of medical expertise and one of the eight panel members must be the Chief Medical Officer of the Australian Border Force and one must be the Commonwealth Chief Medical Officer.  There must be at least 6 other members with specific medical expertise as outlined in the Act.

If the majority of IHAP recommends that the Minister approve the transfer, the patient must be transferred unless security reasons prevent it.

The Minister must also provide a statement of reasons if a transfer is refused which can provide greater scope to challenge a refusal as the decisions are reviewable by the Administrative Appeals Tribunal.

Who is affected?

The Act only applies to people who are on PNG or Nauru at the commencement of the Act, or if they were born in either place.  As such, it does not apply to any new boat arrivals. 

The Act also permits doctors to recommend that a patient’s family should be transferred with them, with the grounds for refusal of a family member including security reasons.  However the Minister must take into account the best interests of the patient when making the decision.

Since the Act came into effect, over 130 people have been transferred to Australia for urgent medical care.

Medevac limitations

Aside from a potential repeal, other challenges posed to the operation of the Medevac framework include the Nauruan Government’s implementation and consideration of new domestic regulations to prevent medical transfers being approved where the patient has been assessed by an overseas doctor, for example by teleconference or Skype.  Nauruan regulations make telehealth consultations illegal.  The changes may also require Nauruan Government approval for transfers, and a Nauruan doctor to find that the resources required cannot be found on Nauru.

In addition, the Australian Government has reopened the Christmas Island detention centre for medical treatment of these patients as a result of the Act. 

This creates another barrier to patients who require higher levels of care, as the Government will direct patients to Christmas Island before mainland Australia.  However medical professionals have reported that the medical facilities on Christmas Island are not equipped for complex medical issues and we understand that patients have not as yet been transferred to Christmas Island.

Russell Kennedy Pro Bono Practice

Our Pro Bono Practice has been successful in bringing seriously ill refugees and their family members to Australia for urgent medical treatment by negotiating with the government and filing urgent interlocutory applications in the Federal Court of Australia.  You can read more about the work our Pro Bono practice does here.

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