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Group effort saves lives

Group effort saves lives

By Karin Derkley

Human Rights Immigration 


More than 100 lawyers have been prepared to drop everything over the past year to help bring desperately ill asylum seekers to Australia for treatment. The call came late in the afternoon on 3 September 2018 as Phi Finney McDonald lawyer Olivia McMillan was working on a class action matter. It was David Burke from the Human Rights Law Centre (HRLC). A 10-year-old Rohingya boy in detention in Nauru was experiencing severe symptoms of resignation syndrome, he said. Resignation syndrome is a life threatening psychiatric condition in which sufferers go into a profound withdrawal. “The boy was catatonic, not speaking, not eating” says Ms McMillan, an associate with the law firm. "David said, he's really sick – can you help?" Putting aside her other files, Ms McMillan spent the next few hours reviewing the boy’s medical records and talking to his father through an interpreter on Skype about his son’s symptoms. “He was pretty distressed but he was also very grateful that something was being done for his son.” Over the next couple of days she worked with a medical expert to compile the court documents that showed the boy needed urgent inpatient psychiatric treatment. On 5 September, the case went before the Federal Court, which issued an interlocutory injunction to ensure the boy would be moved to Australia to receive the medical treatment he needed. “It all happened incredibly quickly,” Ms McMillan says. “At this point people are very unwell and every hour counts.” It wasn’t the first time Ms McMillan had been asked to help with a medical emergency being experienced by an asylum seeker being held on Nauru. Her first case was when she was at Russell Kennedy and worked to help a mother and son with physical and psychiatric illness get airlifted to safety in Australia where they continue to get specialist medical care. “You get a call asking if you have got capacity, which essentially means: can you put everything aside for at least the next week? Sometimes there’s an imminent risk of suicide, so you don’t have a long time,” she says. Ms McMillan is just one of more than 100 lawyers around Australia who have volunteered their time and expertise over the past year to help transfer people off Nauru or Manus Island to get proper medical help. At a call from the HRLC,they have dropped everything, often working through the weekends to pull together the evidence that shows people are at imminent risk of their lives or long term damage unless they are removed to proper medical facilities not available on the islands. At Russell Kennedy the pro bono team have been working on medical transfer matters since early 2018, helping to bring 11 refugees and their family members to Australia for urgent medical treatment. Emma Dunlevie is special counsel in commercial leasing and dispute resolution at Russell Kennedy but has spent the past 10 years also volunteering on refugee matters. “It’s an area I’ve always wanted to have as part of my legal work. “It’s one of the areas of greatest unmet legal need. You’re working with people in really dire circumstances and it’s where the rule of law is most tested because of the shifting goalposts. That’s where lawyers are really needed to step up, usually on an urgent basis, to challenge these laws in an administrative law forum and a human rights forum.” Mustering the evidence to prove a client’s medical emergency involves mobilising legal teams and medical experts to pull together the hundreds of pages of court documents required by the courts. “It’s a big burst of work that happens in a short time,” says Russell Kennedy’s pro bono senior associate Arti Chetty. “These are really resource intensive acute matters that need a bit of a team to run them.” Clients or their family members are often highly distressed, demanding all a lawyer’s listening skills to elicit the required information, she says. “We might have a suicidal client on the phone and we need their instructions and we need to manage their expectations and their health. You have to be very empathetic in order to build rapport and trust.” “The lawyer is sometimes the only person they can talk to on a day to day basis,” Ms Dunlevie says. “Often the lawyer has to step in and play the role of family member or psychologist – often they’re very isolated.” “You’re not quite a counsellor,” Ms Chetty says. “But we’re talking about some pretty dire circumstances, so to do this work you have to be very empathetic and patient and acknowledge what is happening for that person.” The social justice team at Maurice Blackburn took on its first case in May 2018, that of a 2-year-old girl with a brain inflammation who was being transferred to Papua New Guinea even though it lacked the medical facilities to deal with this condition. “It highlighted just how inadequate the healthcare system was on Nauru to provide treatment for sick children,” says social justice senior associate Nicki Lees. Ms Lees and her team worked for days to obtain an interlocutory order from the Federal Court that required the 2-year-old, and both parents, be brought to Australia for medical care. Along with the four full-time lawyers in Maurice Blackburn’s social justice team, another dozen or so from across the practice have worked on the 10 matters the firm has dealt with in the past year. “We have lawyers from employment law, class actions, medical negligence getting involved,” Ms Lees says. “They're emotionally and physically demanding matters, but people are happy to help out because they realise they are really making a difference to people’s lives.” One matter came in on a Friday night when the team was at a work function. “The evidence we got from doctors was that we had a 48-hour window to get this critically ill person proper medical treatment. We worked around the clock and were in the Federal Court by Sunday evening and got orders, and our client was on the next flight from Nauru.” Medical emergency cases in Australia’s offshore detention centres are initially referred to the Asylum Seeker Resource Centre (ASRC). It has its own in-house lawyers, but passes on to the HRLC those it lacks capacity to deal with. The HRLC has had a long relationship with firms such as Maurice Blackburn and Russell Kennedy, but a flood of cases last year prompted the HRLC to scale up its referrals to other law firms, including Holding Redlich, Robinson Gill, Allens Linklaters, and Carina Ford Immigration Lawyers. Holding Redlich took on its first case in August last year, helping a family whose mother had attempted to take her own life and whose 2-year-old son was experiencing trauma as a result. Pro bono coordinator Guy Donovan says the firm had become aware of the explosion in medical emergencies. “We knew the need had become overwhelming and this was a critical situation, and we were only too happy to help.” The firm has since taken on six matters, all but one of which have resulted in the minister consenting to the injunction order. The other went to court. Out of the 150 matters that have been taken on by lawyers in Australia, around two-thirds have been quietly negotiated and settled with the government. Where the government either rejected or failed to respond to the request for medical transfer, a court appearance was the next step. One of around 30 barristers acting pro bono as counsel for medical transfer matters, barrister Matthew Albert has taken on around 15 of the 50 cases that have gone to court. His efforts won him the John Gibson award for human rights and refugee advocacy earlier this year. Given the constraints on time and resources, the bar for taking on a case is high, Mr Albert says: severe risk of death or permanent disability. “The only time we have been to court has been when there was a genuine and severe medical need for evacuation.” That conservative approach has been vindicated by the fact that every one of the cases taken to court was successful in achieving the injunction sought, he points out. “We have to stand up before the Federal Court judge and say this is urgent – and you don’t do that unless it’s true.” He said expert medical evidence made it clear in every case that there was a genuine need that was dire. Mr Albert says one of the impressive aspects of the medical transfer cases has been the willingness of the Federal Court to sit at extremely short notice, often over the weekend, to hear applications for medical evacuations. “How lucky are we as a legal community and also as a broader community to have courts willing to sit in response to genuine medical need at literally all hours of the day or night and when required?" But it’s the efforts of ordinary lawyers, prepared to drop everything at extremely short notice, that has particularly made Mr Albert and others involved in the effort “immensely proud”. “We've had people from across the profession, from the very junior to partners of commercial firms and silks who have signed up to give up multiple weekends and evenings to do these cases at virtually no notice and with no funding at all,” he says. HRLC’s senior lawyer with the refugeee rights team David Burke says the support of the legal community has been remarkable. “It’s been so inspiring to see the legal community come together at all hours of the day and night to respond urgently to seriously sick and vulnerable people,” he says. “It has really reinforced for me the legal profession’s commitment to access to justice. On multiple occasions when there was an emergency, we called firms on a Friday night and were in court that weekend fighting to have men, women and children brought to Australia for desperately needed medical care.” For Ms Chetty, the motivation for being involved in medical transfers and asylum seeker matters is straightforward. This area of law is really interesting, she says. “It’s complex and it’s rapidly changing. You get a lot of client contact and a lot of collaborative contact with VicBar because it’s often litigious. If you have a social justice bent it’s pretty satisfying if you get a good outcome for these clients.” Holding Redlich’s Mr Donovan says that while the work is intense and gruelling, it is also incredibly satisfying for everyone involved. “People are motivated by being able to help people who otherwise wouldn’t have access to justice and who, without access to a pro bono lawyer, would literally die. It’s one of those few areas of law where you are actually involved in saving lives.” For Ms McMillan, work on medical transfer matters has been both professionally and personally satisfying. “You’re helping people who would otherwise die. People are really sick and we have the skills to help them.” The boy, now 11, who was not long ago refusing to eat or speak, recently rang her to thank her for her help and tell her he is now at school and playing soccer. “He’d never been to school before,” she says. “He was so happy. That’s a reward in itself – and for a little boy to understand what you’ve done for him is pretty incredible.” Postscript: The passing of the Migration Amendment (Urgent Medical Treatment) Bill 2018 means that people held in offshore detention centres who have been assessed by two doctors as requiring medical or psychiatric treatment that is not available on the islands will be transferred to Australia, unless the Minister for Home Affairs determines that they represent a security risk. A Medevac Group has been established by the ASRC in conjunction with other legal and refugee organisations to create a referral process that allows people on Nauru and Manus Island to be triaged by medical professionals and supported by caseworkers. At the time of publishing, just one asylum seeker had been transferred to Australia under the new law.

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