MAX COSTELLO. Who’s right about Medevac airlifts to Australia – the doctors or Peter Dutton?

Nov 8, 2019

The government’s traditional scare campaign having failed to work – because Medevac transfers have not re-started the ‘people smuggler’ boats – a very frustrated Home Affairs Minister Dutton is running a new ‘repeal Medevac’ line: he says the Medevac law is a con because no transferees are in hospital. But it’s his own Australian Border Force that is keeping them out of hospital.

 As the 22 October 2019 media release of the Australian Medical Association (AMA) declared, “Medevac is working and should remain”. So said eleven specialist medical colleges – the Royal Australian and New Zealand College of Psychiatrists, the College of Intensive Care Medicine of Australia and New Zealand, and so on – in their 14 October joint statement, which the AMA commended.

But Minister Dutton has called the Medevac law ‘a con’.

In essence, the Medevac law allows Nauru and PNG asylum seekers and refugees to be airlifted to Australia for medical care, if two treating doctors say they’re very ill and can’t be cared for locally. This law is the brainchild of former AMA president Kerryn Phelps.

Dr Phelps was appalled by the cruelty of Australian Border Force (part of Peter Dutton’s Department of Home Affairs), which kept rejecting doctors’ requests for medical airlifts.

In the November 2018 by-election that followed Malcolm Turnbull’s sudden resignation, Phelps stood as an independent and won, depriving new Prime Minister Scott Morrison of his one-seat majority in the House of Representatives.

On 12 February 2019, the non-government MPs, including Labor and the Greens, used their Reps numbers to pass Phelps’s ‘Medevac’ amendments to the Migration Act. The Senate followed suit. The government was furious, but the amendments became law on 1 March 2019. Medical transfers commenced in April.

After the May general election restored the government’s majority (Phelps lost her seat), the PM used his Reps numbers to pass a Medevac repeal bill. The more evenly balanced Senate set up a Committee to examine the bill. The Senate is expected to vote on it soon.

In recent months, Senate Committee hearings have received Medevac transfer statistics.

At the Committee’s 26 August Public Hearing, Dr Neela Janakiramanan explained that people in the transferee cohort were extremely unwell: their medical records showed that 91% had significant mental health issues, and 97% had significant physical health issues.

At the most recent Senate Estimates hearing, on 21 October 2019, Home Affairs officials reported that 135 people had been brought to Australia to that date. Only thirteen of them (10%) had been hospitalised, four for over a week, but no-one was currently in hospital.

The following evening on Sky News with David Speers, Minister Dutton used that low level of hospitalisation to suggest that the Medevac law “is a con”. Speers queried him.

Speers:   This hospitalisation rate … is that what you’re saying shows this whole thing is a con? … Are you suggesting these 135 people … aren’t really sick?

 Dutton:   If you’re … flown to Australia for medical attention but you don’t need to go to hospital, well, I think people can read between the lines.

 Note that Dutton didn’t claim directly that they’re not really sick. Why not? Because he or his junior Minister David Coleman had approved all 135 of those transfers to Australia!

That is, the Ministers had either fully accepted the two treating doctors’ opinion that each transferee was really sick, or, if in doubt, had received an opinion to that effect from the Independent Health Advice Panel – whose members Minister Coleman had appointed.

So Speers should’ve asked, “But didn’t you or Mr Coleman approve all those transfers?”

Had he done so, and had Dutton conceded that, yes, he or Coleman brought them all here – and conceded that (as Home Affairs secretary Pezzullo had told the Public Hearing) every pair of treating doctors had said “inpatient care required” – the follow-up question should then have been, “So how come only 10% of them have received inpatient care?”

Answer: transferees are nearly all held in immigration “detention facilities”, so it’s the non-medical organisation in charge of those facilities, Australian Border Force (ABF), that decides whether, and if so when, transferees get any hospital or other specialist care.

As the Senate Committee heard, ABF is the unit within Home Affairs that, year after year pre-Medevac, kept delaying or refusing medically vital airlifts to Australia. So, if (as is apparent) the rate of transferee hospitalisation or other specialist care is being suppressed down to a medically inappropriate low level, there’s no need to guess who’s responsible.

As to “detention facilities”, Secretary Pezzullo explained on 26 August that 90% or so of transferees are being held in Ministerially designated “alternative places of detention” (APODs), such as hotels, with only 10% being in traditional “detention centres” (DCs). (DC transferees have access to an onsite nurse or doctor, but the 90% at APODs do not.)

The role of ABF within all ‘detention facilities’ is set out on its website (italics added):

We are responsible for the management of good order, safety and security within immigration detention facilities, including the health and welfare of detainees.

So, although International Health and Medical Services (IHMS) has a contract with the Commonwealth government to provide health care services to detainees, IHMS doctors do not work totally autonomously.

Accordingly, if an IHMS doctor thinks transferee A requires specialist assessment or care at clinic B, she can’t just make an appointment and send the detainee there: she can only recommend such to ABF.

Further, unlike the Medevac law, whereby the Minister has only 72 hours to make a yes or no decision on a proposed medical transfer, there is no statutory time limit on ABF’s ‘yes, no, or not yet’ decisions about IHMS-proposed inpatient (or outpatient) care.

Well then, who’s right about the Medevac law: the AMA and the colleges or Mr Dutton?

The top medicos are right in saying that the Medevac law is working and should remain, because very sick offshore people are, reasonably promptly, being brought here to get the care they need – that is, as the Medevac law says, “for the purpose of medical or psychiatric assessment or treatment” (italics added).

However, since the treating doctors have all said “inpatient care required” (for patients with about 91% and 97% mental and physical illness rates), yet only about 10% of them are getting that care, Dutton’s ABF minions are evidently performing a ‘dog in the manger’ role, preventing most transferees from getting what they need (at least for the time being) – that is, sabotaging Medevac.

Further, as submission no. 75 to the Senate Committee pointed out, the failure by Home Affairs/ABF to pro-actively and preventatively safeguard the health of transferees is also an apparent criminal offence against the Work Health and Safety Act 2011 (WHS Act), which covers both “workers” and “other persons” (such as detainees) at Commonwealth workplaces.

In short, Dutton lets Home Affairs/ABF apparently sabotage one law and break another, then says the resultant lack of hospital care makes Medevac a con. Beyond belief.

Max Costello LLM is a former prosecuting solicitor with WorkSafe Victoria. Now retired, he co-wrote with Robert Richter QC submission 75 to the Senate’s ‘Medevac’ Committee. Their supplementary submission 75.1, at item 6, explains how Home Affairs/ ABF could be compelled to comply with its health-related duties to detainees under the WHS Act.


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