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The government is aiming to repeal the medivac law, saying it will restart the boats, bring criminals to the country and overcrowd our hospital system. But what are the facts behind these claims? By Martin McKenzie-Murray.

No truth behind Dutton’s medivac rhetoric

A medical emergency on Manus Island.
Credit: Shamindan Kanapadhi / Manus Alert

The family came by boat in 2013. A mother, her two sons and her daughter-in-law were fleeing Iran. The youngest was just a boy, who therapists would later note treated his older brother like a father.

In July 2013, Australian authorities intercepted their boat. The passengers were first transferred to Christmas Island before, in January 2014, they were moved to a camp on Nauru. Psychologists would later report the mother and daughter-in-law arrived with pre-existing trauma. In 2016, the mother was flown to Papua New Guinea for surgery and was placed under “High Whiskey Watch” – that is, suicide watch that mandates hospital staff remain within arm’s length.

Then, in 2018, the elder son killed himself. His wife found him. He was 26. Government papers record the moment that his mother was told the news. “She became very distressed and lay on the bed covered with a blanket, she was crying and screaming, interpreter not available at this time but later interpreter stated she was talking about suicide and telling her son she wanted him to come with [him],” the report states. “The initial interpreter asked to be excused and another interpreter be utilized as he was distressed and unable to continue. Hamida replaced him. She had periods of slapping her face as an expression of her grief which the interpreter stated is culturally appropriate, allowed to express herself while staff supported her and ensured she was not harming herself.”

The family was already traumatised but the son’s death sent the three surviving members into a tailspin. Many psychological and psychiatric reports were made of their distress and presented to the Australian government in conjunction with a request for their urgent transfer to Australia for treatment. Of the mother, one report reads: “[She] became desperate during the appointment and declared being a ‘horrible mother’. She said she took her sons out of [their country] to give them a better life and now her son was dead frozen in a refrigerator. [She] repeated many times that she was a bad mother, who had no help of the authorities to take care of her sons and she asked me to give her medication to die. She said this was the help I could provide to her. I talked to [the first applicant] about being a doctor and that I could not help her to die, but we should discuss together other ways to help… [The first applicant] has been on mental health treatment provided by [International Health and Medical Services] since 2013, however she presented with an acute psychiatric crisis during recent evaluations.”

Of the surviving child, who was then 12 years old, a psychologist wrote: “[He] reported having nightmares and trouble sleeping. He did not talk longer about these symptoms and focused his statements on the loss of his brother. [He] declared: ‘my mother is angry because my brother is in a container’, [and] ‘If she dies, I’ll kill myself’.”

The wife of the dead son was also suicidal. Copious pages of reports detail her parlous state. It was the uniform medical opinion of everyone who assessed the family that each required urgent admission to a psychiatric facility – something that couldn’t be offered on Nauru. This required their transfer. Their solicitor appealed to the Australian government, providing copies of clinical reports. The appeal was ignored. The solicitor’s second letter read: “I repeat my request for the urgent transfer of this family, from the environment that is causing them harm, to appropriate treating facilities as outlined in my letter of 14 August. I note that their treating clinicians have noted the necessity for all family members to receive treatment in the presence of each other to enable proper recovery. I hold grave concerns for the lives of my clients, either through FFR [food and fluid refusal] or in the event that previous suicide attempts will be repeated and could be successful.”

The urgency and gravity were clear and evidence provided. But the Australian government never once responded. The Federal Court has heard dozens of similar cases, many involving children.

A ruling from September 2018 – which, like all the others, found in favour of the applicants and forced the Australian government to undertake the medical transfers – levelled criticism at the government. “One matter I took into account in making the order for costs was the fact that the applicants had no choice but to commence proceedings seeking the relief they did in light of the fact that the Minister did not respond to a single letter that had been written requesting the urgent transfer of the applicants from Nauru and indicating that proceedings would be commenced,” Justice Tom Thawley wrote. “As has been noted earlier, those letters included detailed accounts of the conditions of the applicants and was supported by substantial medical evidence from treating doctors. The Minister also had access to the medical records kept by IHMS which contained extensive records in respect of the medical conditions of the applicants, some of which have been set out above. As noted above, the failure by the Minister to respond to the letters written on behalf of the applicants over an extended period was left unexplained. The failure to communicate any substantive response to these letters fell short of what is expected of a model litigant.”

It is a brutal story, but one central to the medivac law debate. The law, which enhanced the power of doctors’ recommendations and obliged the Home Affairs minister to act within 72 hours of receiving a medical transfer request, was written precisely because of stories such as this – stories of the government delaying, or outright ignoring, medical requests for emergency treatment.

The medivac bill became law in February this year, despite claims from Peter Dutton and other members of the government that it would restart the boats, introduce dangerous men to the country and deny Australians access to hospital beds. The first claim was disputed by Dutton’s own department, which in a briefing note advised: “[Potential illegal immigrants] will probably remain sceptical of smuggler marketing and await proof that such a pathway is viable, or that an actual change of policy has occurred, before committing to ventures.” Four months on, there has been no revival of boats.

On concerns about potentially dangerous asylum seekers being transferred, the minister may lawfully reject a request if the applicant is deemed a security risk or has a “substantial” criminal history. What’s more, a transferee remains in the domestic detention system while here – or under guard if in a medical facility. They are not freed into the Australian community, and if safe to do so are returned to Nauru or Papua New Guinea after treatment.

But the third claim was perhaps the most hyperbolic. In February, Dutton said: “People who need medical services in Australia are going to be displaced from those services because if you bring hundreds and hundreds of people from Nauru and Manus down to our country they are going to go into the health network.”

The prime minister reinforced this: “It’s just a simple fact. If we’ve got to treat more people in Australia, then obviously they’re going to take the place of people who were getting that treatment anyway. It’s just simple math.”

But it wasn’t true, and hospitals said so. It would be a strangely brittle health system that couldn’t absorb an additional 31 people over four months – the number of transferees under the new law. Almost 900 people have been transferred since offshore processing was restarted in 2013.

St Vincent’s Health Australia rejected Dutton and Morrison’s claim: “This is a baseless claim. Public hospitals can accommodate the health needs of asylum seekers without disadvantaging anyone. St Vincent’s is happy to make its hospitals available to provide care to asylum seekers without affecting waiting lists.”

Last week, Dutton tried a new tack. He told Sky News: “Some people are trying it on. Let’s be serious about this. There are people who have claimed that they’ve been raped and came to Australia to seek an abortion because they couldn’t get an abortion on Nauru. They arrived in Australia and then decided they were not going to have an abortion. They have the baby here and the moment they step off the plane their lawyers lodge papers in the Federal Court, which injuncts us from sending them back.”

The allegation angered many, especially considering the documented, and dangerous, delays in transferring women to Australia for abortions – a procedure outlawed in Nauru. “I was appalled by those comments – I wondered how low he could go,” Dr Nick Martin says.

Martin was a senior doctor employed by IHMS on Nauru before he blew the whistle on the systemic medical negligence of refugees. It was an act for which he received, earlier this year, an international award.

“The idea of women confecting claims of sexual assault is despicable. [Australian Border Force] policy – stated or otherwise – means that the majority of women who travel to Australia to have terminations have been delayed by either ineptitude or viciousness. Most terminations are referred at around eight weeks, but they don’t come to Australia until around 20 weeks. So, they sat on those cases. If it’s ineptitude, it’s abysmal. And if it’s deliberate, it’s abysmal. Psychologists, mental health nurses, obstetricians and gynaecologists have made assessments. I have evidence, a paper trail of these delays. The significance of this delay is this: In Australia, you’d usually have a termination between about eight and 12 weeks. Then it’s a relatively safe procedure. The longer you wait, the more dangerous and complicated it becomes – 20, 21 weeks is very late. Dutton’s comments are a vile slur.”

When so much political credibility hinges on stopping the boats – for years this has been a galvanising metric – nuance and concession are the enemy. The medivac law is a small and qualified concession, applicable to less than a thousand people. It preserves offshore processing and tow-backs and grants ministerial discretion.

Yet, the government is determined to repeal the law when the 46th parliament begins next week. The government requires four of the six crossbench senators to succeed. While Labor, the Greens and Centre Alliance are opposed to its repeal, the Coalition is assuming the support of Cory Bernardi and the two One Nation senators. Senator Jacqui Lambie hasn’t yet indicated which way she will vote. With her support, its repeal appears inevitable. 

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This article was first published in the print edition of The Saturday Paper on Jun 29, 2019 as "No truth behind Dutton’s medivac rhetoric". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.