The claim

Immigration Minister David Coleman is one of many in the Government to issue a criticism of the so-called "medevac bill", telling Sky News the legislation required a "very, very low threshold" for bringing refugees and asylum seekers to Australia from Manus Island and Nauru.

"We expect that in short order substantially everyone will come to Australia," Mr Coleman said.

"The bill doesn't even require people to be sick … All that's required is that somebody says that it's necessary that [asylum seekers] come to Australia for assessment.

"That is an extraordinarily low standard."

So, does the medevac legislation require asylum seekers on Manus Island and Nauru to be sick in order to be transferred to Australia?

RMIT ABC Fact Check investigates.



The verdict

Mr Coleman's claim is spin.

The bill governs the transfer of people from offshore processing countries in order to receive medical or psychiatric "treatment or assessment".

Experts told Fact Check that it could be possible for a person to be moved to Australia for assessment and found not to be sick, but that the transfer would need to be based on medical needs.

In order for a transfer to be recommended, two treating doctors would need to be of the opinion it was necessary because the treatment or further assessment could not be performed in the regional processing country.

The transfer could then be refused by the Immigration Minister if they "reasonably believed" it to be unnecessary.

That decision could only be overruled if, after a further clinical assessment, the majority of an eight-member independent medical panel viewed the transfer as necessary.

Further, according to a health ethics expert, a false report would be a breach of the AMA's Code of Ethics, and could result in professional sanction for the recommending doctor.



The history of the 'medevac bill'

Senator Derryn Hinch congratulates Kerryn Phelps after the medevac bill is passed. ( ABC News: Nick Haggarty )

Known as the "medevac bill", the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2019 allows refugees on Manus Island and Nauru to be brought to Australia temporarily for medical treatment.

It is based on the so-called "Phelps bill" — legislation introduced to the Parliament by independent MP Kerryn Phelps in December 2018 which failed to gain the numbers needed to be debated in the House of Representatives.

When the Phelps bill stalled in the House of Representitives, independent senator Tim Storer and the Greens added a number of amendments to a government bill already being debated in the Senate.

The amended bill passed the Senate on the final sitting day of 2018, before Coalition senators, with the help of Cory Bernardi and Pauline Hanson, filibustered to prevent it moving to the House.

When the bill finally appeared before the House in the first sitting week of 2019, a number of 11th hour amendments were added, reportedly to ensure the continued support of Labor.

With the support of Labor, the Greens and independent crossbenchers, the bill finally passed through both houses on the third sitting day of 2019.

Mr Coleman made his claim five days later.

(The bill is yet to receive royal assent, which is the final approval it requires to become law.)

How does it work?

The legislation allows for medical temporary transfers of asylum seekers from Manus Island and Nauru to Australia, subject to multiple tiers of approval.

At the first tier, two treating doctors who must have assessed the person need to recommend a transfer for further assessment or treatment. A previous fact check explains who these two doctors might be in more detail.

According to section 198E of the legislation, to recommend a transfer the two treating doctors must be satisfied of three things:

the person requires medical or psychiatric assessment or treatment;

the person requires medical or psychiatric assessment or treatment; the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

These doctors notify the Secretary of the Department of Home Affairs of their recommendation, who must then inform the Minister for Immigration.

At the second tier of approval, the Minister has 72 hours to either approve or reject a transfer.

At this stage, the Minister can reject the transfer if there are national security concerns, if the person has a "substantial criminal record" or if the Minister "reasonably believes" the transfer is not medically necessary.

If the rejection is based on a lack of medical necessity the Minister must inform an Independent Health Advice Panel.

The Independent Health Advice Panel

Dozens of refugees from Manus Island are currently being treated in Papua New Guinea's Pacific International Hospital. ( ABC News: Natalie Whiting )

The third tier of approval, the Independent Health Advice Panel, will consist of eight members, including the Chief Medical Officer of the Department of Home Affairs, the Commonwealth Chief Medical Officer and six others including:

At least one person nominated by the Australian Medical Association;

At least one person nominated by the Australian Medical Association; At least one person nominated by the Royal Australian and New Zealand College of Psychiatrists;

At least one person nominated by the Royal Australian and New Zealand College of Psychiatrists; At least one person nominated by the Royal Australasian College of Physicians; and

At least one person nominated by the Royal Australasian College of Physicians; and At least one person who has expertise in paediatric health.

No later than 72 hours after being notified by the Minister the panel must conduct a further clinical review of the person, either in person or remotely, and inform the Minister of its findings.

A recommendation to approve a transfer must be agreed by a majority of the panel's members.

The Minister reconsiders the transfer after the advisory panel has made its decision, but can now only reject the transfer on the grounds of national security or a substantial criminal record.

Would healthy people be transferred to Australia under the bill?

Fact Check asked a number of legal experts to assess whether healthy people could be transferred to Australia under the bill.

Professor Michelle Foster, the director of the Peter McMullin Centre on Statelessness at Melbourne Law School, told Fact Check: "There are rigorous checks and balances in place to ensure that any transfer is necessary for appropriate medical or psychiatric assessment and treatment."

In an email, Professor Foster listed a number of checks outlined in the legislation, including the ability of the Minister to, in the first instance, refuse a transfer on the grounds of lack of medical necessity, the range of expertise of the members of the advisory panel, and the need for the panel's decision to be agreed to by a majority of members.

"The transfer would be approved only if treatment or assessment were necessary and could not be performed at the regional processing country," Professor Foster said.

Dr Daniel Ghezelbash, a senior lecturer at Macquarie Law School, noted that while the amendment sets out that people could be transferred for medical or psychiatric assessment as well as treatment, the initial treating doctors must be of the opinion that a transfer was necessary and that assessment was not available in offshore processing countries.

"It is difficult to see how a doctor could form the opinion that an assessment is required and necessary, if a person is healthy and not showing any symptoms of physical or mental illness," Dr Ghezelbash, a refugee law expert, told Fact Check.

The legislation sets out clear criteria about medical necessity and need, Dr Ghezelbash said, noting the panel would be made up of eminent doctors nominated by prestigious and trusted professional bodies for the role, then vetted by the Minister.

"To say or imply decisions will be made based on anything other than medical need is insult to the medical profession and doctors everywhere."

Dr Daniel Stewart, a senior lecturer at the Australian National University's College of Law also pointed to the credentials and role of the Independent Health Advice Panel.

"The panel's role in recommending transfers of persons is clearly based on medical needs," he told Fact Check.

"They must conduct a clinical assessment of the person seeking transfer to assess whether it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment, and any recommendation would have to be based on the findings of that assessment."

He did however note there was a possibility a person could be brought to Australia for assessment and subsequently be found not to be sick.

The Nibok refugee settlement on Nauru. ( AP: Jason Oxenham )

Ethical considerations

Dr Ghezelbash also noted doctors must follow an ethical code of conduct.

Associate Professor Dominique Martin, an expert in health ethics, told Fact Check that on admission to practice, Australian doctors make a commitment to practice in accordance with the ethical standards of the profession.

She said Australian doctors followed two codes of ethics: the Australian Medical Association's Code of Ethics and Good Medical Practice: A code of conduct for doctors in Australia.

"Health professionals are generally expected to make patient care their priority and to act with integrity," Dr Martin, from Deakin University, said.

"Medical practitioners are also expected to provide care without discrimination or bias, and to advocate to improve equity of access to healthcare and for better care when needed, free of discrimination."

Dr Martin said making a false report when recommending a medical transfer would violate professional standards.

"Ordering unnecessary medical care — which transfers would seem to entail if the person being transferred is well — would be a violation of several professional ethical standards," she said.

"These include avoiding waste of our limited health resources and managing resources fairly, transparently and responsibly, and avoiding causing harm to patients by use of unnecessary investigations and procedures."

If a report of professional misconduct was made to the Australian Health Practitioner Regulatory Agency and proven correct, professional sanctions may ensue, according to Dr Martin.

Families and accompanying persons

While the legislation is designed to allow for the transfer of sick people to Australia for assessment or treatment, healthy people may also come to Australia if they accompany a sick person.

As Dr Stewart told Fact Check: "There is also provision in the bill for family members or other persons recommended by a treating doctor to accompany the person receiving treatment or assessment."

This would allow healthy people to come to Australia under the bill, though only to accompany a person requiring medical treatment or assessment, and only temporarily.

Fact Check did not take this into consideration when reaching its verdict as the context of Mr Coleman's claim makes clear he is referring to those people being transferred for medical treatment or assessment.

Principal researcher: Ellen McCutchan

Sources

APH, Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2019



APH, Migration Amendment (Urgent Medical Treatment) Bill 2018



Katharine Murphy, Labor shifts position on medical transfer bill under pressure from government, The Guardian, 11 February, 2019



RMIT ABC Fact Check: Could Richard Di Natale and Bob Brown act as medical advisers on the transfer of refugees under proposed legislation?, 11 February, 2019



Australia Medical Association, Code of Ethics, 2016



Medical Board of Australia, Good medical practice: a code of conduct for doctors in Australia, 2014

