A diversion to Christmas Island, a change of law on Nauru and other complications may hinder the ability to provide care

The medevac bill is law: what does that mean for ailing offshore refugees?

When the medevac bill – which on Friday became law – passed parliament, it was intended to create a streamlined process to get sick refugees and asylum seekers into the medical care they needed in Australia, because it wasn’t available on Manus Island or Nauru.

The government expressed concerns the bill could lead to weakened borders and national security. Amendments to the bill gave the minister 72 hours to assess a transfer referral which, if he or she refused, would be sent to an independent medical panel. The panel could override a minister’s refusal on health grounds but the minister has the final veto if there are security issues surrounding the patient.

The bill passed, and for two weeks became the centre of vicious political debate, and was not given royal assent (officially making it law) until Friday.

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But there remain serious concerns about whether it will go as smoothly as the parliament intended, with several complications emerging.

Why has Christmas Island been reopened?

Almost immediately after the bill passed, Scott Morrison announced the government would reopen Christmas Island. He was questioned whether that was because the government believed thousands of people would now be tempted to seek asylum by boat, or whether those seeking transfer would be sent there.

In Senate estimates the head of the home affairs department, Michael Pezzullo, confirmed the government’s policy was to send all medical transferees to Christmas Island first.

“If specialised treatment is only available on the mainland then the mainland will be utilised,” Pezzullo said.

Christmas Island’s council has said it does not have the facilities for complex medical care. The ABC recently reported that for the past 20 years no baby is believed to have been born on the island – every pregnant mother is instead sent to the mainland for the birth.

That appears to suggest the mainland is likely to be “utilised” in transfer cases, which may add both costs and delays to the process.

“Let us see what the government does rather than what it says,” said Senator Tim Storer, one of the architects of the bill.

“All the indications are that there are very limited facilities on Christmas Island, so it is difficult to see how people from Nauru and PNG could be treated there. But it is up to the government to make sure the people covered by the legislation are given the treatment they require.”

Who is the medical panel assessing the transfers?

In the hours before the medevac bill was voted on, the government released legal advice that it may be unconstitutional if doctors were paid to be on the panel. To avoid any potential issues, an amendment was made so that the panel appointments would be voluntary roles.

The Royal Australasian College of Physicians pointed to this, as well as the short time frame for finding appointees, as potential problems. The college was among medical bodies approached by the government to nominate a shortlist of potential panel members.

The eventual members – who will not be paid for their work on the panel – will include the chief medical officers of both the commonwealth and the home affairs department, as well as at least six others. Those six will include a nominee of the Australian Medical Association’s president, a nominee of the Royal Australian and New Zealand College of Psychiatrists, a nominee of the Royal Australasian College of Physicians, and a paediatric health expert.

“The legislation has only just been proclaimed so it is no surprise the medical panel is yet to be appointed,” said Storer.

“I am heartened that the government has approached the appropriate medical authorities to nominate qualified professionals and that some of them have already forwarded nominees to the government.”

How do the new Nauruan laws affect patients on the island?

Amid all this, the Nauruan government has passed two key pieces of legislation. They both appear to be in response to Médecins Sans Frontières launching a telehealth service for its former patients on the island, whose mental health care abruptly ended when the Nauruan government kicked the charity out.

But they create potential consequences for the medevac law.

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One outlawed telemedicine for residents of Nauru, with the only exceptions being those permitted by the cabinet. Under the new law, registered health practitioners and services are banned from conducting telemedicine or aiding, colluding or abetting a Nauruan resident to conduct telemedicine.

The other law passed last month stipulates that all overseas medical transfer referrals must come through the Nauru hospital. The referral is then assessed by the controversial overseas medical review panel and signed off by the minister.

The Nauruan government has defended the legislation as an exercise of its sovereign right to create laws for the betterment of its country. Both Morrison and opposition leader Bill Shorten have defended that right.

Federal MP, Kerryn Phelps, one of the key architects behind the transfer bill, told Guardian Australia she has written to the government about the laws but is yet to receive a reply.

Both laws potentially affect the ability of Australian-based doctors from consulting with a Nauru-based patient and seeking their transfer.

How that effect will play out hasn’t been tested. The MOU between the two countries dictates that people requiring transfers will be transferred, but Jana Favero, from the Asylum Seeker Resource Centre, notes that Nauru has a history of blocking transfers.

“It’s definitely a complication but again, there’s been so much political interference in transfers from both sides,” she said.

Facebook Twitter Pinterest Crossbench senators celebrate the passing of the medevac bill in the House of Representatives. Photograph: Lukas Coch/EPA

What happens now?

There are around 970 people left on Manus Island and Nauru who were sent there by Australia for offshore processing, about 70 of whom are estimated to currently need a medical transfer.

That number relates to the cohort currently being case-managed by the ASRC.

There are already more than 900 people from the offshore-processing system in Australia for medical care.

Guardian Australia reported last month that the federal government had ignored, in some cases for years, the recommendations of its own contracted doctors to transfer people to Australia.

On Friday, a coalition of organisations announced it had formed the Medical Evacuation Response Group (Merg), to triage transfer requests, and to streamline applications under the new law.

“It’s important that there is an equitable system with medical need as its focus. Doctors are best placed to assess the nature of health needs for patients and what treatment the patient will require,” said GP, Dr Sara Townsend.

“In the past, medical requests for transfer have been diluted by bureaucratic obstruction and political agenda.”

The Merg includes doctors, caseworkers, counsellors and lawyers, and is independent of the Australian, Papua New Guinean, and Nauruan governments.

The ASRC’s Favero said they expect “a handful” of recommendations each week, beginning late next week.

“We can control the point up to referrals, but from there we will have to see what the government does,” she said.

“There are already requests in the system. Which still haven’t been honoured, so we don’t know what the government will do with those.”

