Australia

'Personal engagement' ruled not necessary in remote medevac process by court

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Two doctors can remotely assess asylum seekers offshore for medical evacuation to Australia without seeing them, a court has upheld.

The Federal Court has rejected the Morrison government's argument that an asylum seeker requesting treatment under the so-called "medevac" laws needs to be personally assessed by doctors.

A 29-year-old man from Iraq came to Australia without a visa in 2013 and was taken to Nauru.

Under medevac laws which came into force on 1 March - with the support of Labor and crossbenchers and against the will of the government - he sought approval from the Home Affairs Minister for transfer to Australia for medical treatment. 

Despite two treating doctors notifying the department secretary of the need for the transfer, the minister had not been notified "as soon as practicable" under the laws, so the man took the issue to the Federal Court.

The Home Affairs secretary argued in court he had refused to notify the minister because he had not received a notification from two or more treating doctors within the meaning of the law.

The two doctors, emergency specialist Alvaro Manovel and psychiatrist Michael Dudley, formed their opinions and prepared their reports on the basis of the applicant's medical records and other material relating to medical facilities on Nauru.

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Repealing Medevac would be a death warrant for refugees: advocacy groups
Repealing Medevac would be a death warrant for refugees: advocacy groups

Neither of the doctors personally interviewed or physically examined the applicant or otherwise personally engaged with him.

The secretary argued they were not proper assessments under the law because of the absence of any personal interaction or engagement.

However, Justice Mordy Bromberg said the idea of "personal engagement" ran counter to the purpose of the medevac laws, which were put in place for "transitory people for whom personal engagement with a treating doctor is not possible or not practicable".

"I would not conclude from the available textual and contextual indications, that personal engagement between the 'treating doctor' and the transitory person was intended as a mandatory requirement for the assessment required by (the medevac law)."

Prime Minister Scott Morrison wants to abolish the medevac bill, arguing it undermines the government's border protection system.

Labor's home affairs spokeswoman Kristina Keneally says the government will continue to "cry wolf" over the laws.

"While it's sad they will use this finding to attempt to undermine Medevac, Labor supports Medevac because it provides urgent medical care for people who need it, and still keeps our country safe," she said in a statement.

"This legal action was always about a clarification of the law, and provides certainty that people on Nauru can submit an application to trigger the Medevac legislation and process."

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