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The government’s determination to avoid onshore legal challenges to asylum-seeker detention has endangered detainees requiring serious medical attention. By Sean Kelly.

Keeping asylum seeker healthcare offshore

On September 14, 2015, the day Malcolm Turnbull took the leadership of the Liberal Party from Tony Abbott by 10 votes, and became prime minister of the country, a very different milestone occurred in the life of a young woman. Her request to end a pregnancy, the result of an alleged rape, was delivered to the Department of Immigration and Border Protection. As a 23-year-old refugee living on Nauru, where abortions are illegal, “Abyan” would have to travel elsewhere to undergo the procedure.

Almost a month later, Abyan, now 14 weeks pregnant, was flown to Australia. Various meetings followed, although who Abyan actually met is the subject of dispute.

On the morning of Friday, October 16, after Abyan had been in Australia for five days, according to David Manne, the executive director of Refugee Legal, “clear evidence surfaced that there was a real danger that her removal may well be imminent”.

Anxious to stop Abyan being taken back to Nauru, the lawyers involved in her case rushed to file an injunction. To do so, the court must be alerted that something is coming. Formal legal documents must be prepared. Affidavit material, providing evidence to support the claims being made. Written legal submissions.

Before the lawyers could get to court, Abyan was already gone. She had been flown out of the country on a specially chartered jet. The minister argued that she was taken back to Nauru because she had decided not to proceed with the termination.

Manne says that assertion is totally false: Abyan wanted the standard counselling provided to any woman in Australia seeking to be informed about her choice, and she had not yet been provided with that counselling, nor come to a final decision.

While the precise reasoning in Abyan’s case is debated, it’s clear there is a general concern in government about refugees using the courts to stay, after having been transferred temporarily to Australia for medical reasons. A minute from the Australian Border Force warned: “There is a risk that once in Australia [Abyan] will seek to join legal action which would prevent her return.”

The week after Abyan was returned to Nauru, a group of pregnant women on the island refused medical treatment, asking to be brought to Australia. The husband of one said that she was suffering from complications including diabetes: “She got kidney, she got back pain and she can barely right walking with her big, big stomach and now she’s pregnant and she’s got blood sugar.”

In response, Immigration Minister Peter Dutton said the government would not be “taken for mugs” by refugees on Nauru. “The racket that’s been going on here is that people at the margins come to Australia from Nauru, the government’s then injuncted, we can’t send them back to Nauru. And there are over 200 people in that category.”

The president of the Australian Medical Association, Dr Michael Gannon, repeated the argument in an interview with the ABC’s Fran Kelly this week: “When a patient is transferred to the Australian mainland they normally have refugee advocates, refugee lawyers, claiming asylum on the mainland of Australia once they’re here.”

The week after he became prime minister, Turnbull was asked about Australia’s offshore detention centres. He said that it was “not an ideal environment”, and that the government was looking at resettling the people detained there. For a long time it seemed as though these words were hollow mouthings of sentiment. Then, late last year, Turnbull announced he had reached an agreement with the United States to take many of the people on Nauru and Manus Island. It turned out he had been working on the deal for a year, since not long after becoming prime minister.

In other words, cases such as Abyan’s might soon be largely a thing of the past. The government’s hope is that the Americans will take people in October. That isn’t soon enough for those seeking urgent medical care.

On Monday, Guardian Australia reported that three women on Nauru wanting terminations had had their requests knocked back. The refusal was not a surprise. Border Force contracts medical work to International Health and Medical Services (IHMS). Until recently, in urgent or sensitive cases, IHMS has dealt directly with Border Force to request medical transfers. But as of July every request from a refugee must be approved by the overseas medical referral committee of the Republic of Nauru Hospital.

Paddy McLisky, from Doctors for Refugees, describes the choice: “They can either approve the transfer, and effectively break the law, or reject it, knowing they’re not providing a medical service.” McLisky says that he knows of patients expecting to be moved, who then are left where they are for no apparent reason. He says meetings of the committee are supposed to be regular, but are sometimes cancelled.

The Saturday Paper has been told that one of the women first requested her termination when she was six weeks pregnant. She is now 16 weeks pregnant.

So what will happen to these women now their abortions have been refused?

“That’s the million-dollar question,” McLisky says. “What does a woman do anywhere when she has an unwanted pregnancy? It really depends on her level of education and their state of mind, but under a lot of stress some women do seem to have a backyard termination, which can be very, very dangerous. And that’s the elephant in the room: what’s going to happen?”

In a letter sent to politicians this week, a detention centre worker gave a greater range of outcomes: “These women already have significant mental health problems. Giving birth and raising a child in Nauru would only increase their mental health burden. I am concerned that these women will self-harm, attempt suicide, or attempt a home abortion.”

Meanwhile, Border Force could step in at any time. McLisky says: “Everything is in the hands of the Australian government. ‘We have to wait for the committee.’ They don’t have to wait for the committee at all.”

Turnbull’s own words would seem to back up McLisky. While the government has publicly insisted that decisions taken on Nauru are a matter for Nauru, Turnbull, as revealed by a leaked transcript of a phone call with Donald Trump, told the US president in January that people in offshore detention have been “under our supervision for over three years now”.

Lawyers have now begun corresponding with the minister and the department about access to abortions. The lawyers say they would prefer to resolve the matter without proceeding to court.

It is not only pregnant women requesting terminations who have faced difficulties due to the government’s reluctance. In 2016, a Somali refugee was put on life support in Brisbane after she was medically evacuated from Nauru with her newborn, having shown signs of the potentially dangerous condition pre-eclampsia for months. Earlier this year, a 37-week-pregnant Kuwaiti woman was airlifted to Australia after being diagnosed with pre-eclampsia.

One of the five doctors who recommended the Kuwaiti woman be brought to Australia was Michael Gannon. Asked about the current situation, Gannon tells The Saturday Paper, “I can see no alternative but to transfer them to the Australian mainland.”

Gannon is clear that the government’s concerns about injunctions should not be a factor in any questions of medical care. “If there was an honest clinical judgement made that the facilities were inadequate, then the patient should be transferred, and if that leads to a different migration outcome, or to other complexities within the migration situation, so be it. The medical ethics are very clear: the patient should be transferred if the clinical situation demands it.”

While Gannon says the department has provided “a very high level of healthcare” in offshore detention, and that there is sometimes hyperbole from refugee advocates, he also tells The Saturday Paper he is uncomfortable with the level of secrecy from the department. “One of the things I would say to the department is that if they’re comfortable with the level of care that they’re providing to refugees and asylum seekers on Nauru and Manus Island, then they should be transparent about it.”

Questions put to Peter Dutton’s office and to the department about the women seeking terminations, and the operations of the overseas medical referral committee, were not answered.

I spoke to one asylum seeker from Manus Island this week who was informed two years ago that he had been referred to Australia for knee surgery. When he asked why he had not received surgery yet, he was told, “You’re not Tim Cahill.” Finally granted permission to see a specialist in Port Moresby, not Australia, he boarded the plane. For the flight, he was handcuffed. Asked why, the security staff told him it was at the request of Border Force. “They cannot do anything for you,” he says of the standard of care on Nauru. “There are no good facilities.” I ask if they ever transferred people. He says, “If you nearly die, they will transfer you.”

David Manne, who is representing several women who say they are afraid to return to Nauru after having suffered sexual assault and rape, is outraged at the government’s position on medical care leading to possible settlement in Australia. “The idea that somehow a person should not seek legal advice,” he says, “and avail themselves of their legal rights under Australian law to get an injunction to prevent them being sent back to the place where they were abused is frankly preposterous.” He called it “a pattern of conscious calculated cruelty towards women who have fled from abuse”.

The centre on Manus Island will close in October, around the time the Americans are expected to begin transferring people to the US. Even then, some refugees will still be left on Nauru.

That will become the next question facing Turnbull: What to do with them?

Victorian Liberal MP Russell Broadbent stood in parliament last week to say that once the American process had concluded, “it will be time for this nation, through its parliament, to act and resolve the situation on Manus and Nauru”. He told Guardian Australia this meant bringing genuine refugees to Australia. Approached this week as to what he might do to achieve that end, his office said Broadbent preferred to let his words in parliament speak for themselves.

It is hard to imagine what Broadbent might do – crossing the floor wouldn’t achieve much. Bill Shorten was asked on the ABC’s Q&A program this week about Labor’s plans, and said that efforts should be made to reach regional agreements on resettlement. In other words: neither major party seems likely to bring the remaining refugees to Australia.

As Paddy McLisky points out, “These poor women are probably requesting the most controversial and unpleasant medical procedure they ever will in their entire life, and now airlines need to know about it, and bureaucrats need to know about it, and now we’re all talking about it.”

This article was first published in the print edition of The Saturday Paper on Aug 26, 2017 as "Medical inattention". Subscribe here.

Sean Kelly
is a political commentator and writer, and a former adviser to prime ministers Kevin Rudd and Julia Gillard.

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