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Whistleblower doctors exempt from jail threat

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Doctors will no longer be threatened with imprisonment for speaking out about conditions in immigration detention after the Federal Government amended its controversial Australian Border Force Act.

Immigration Department Secretary Michael Pezzullo has confirmed that provisions of the Act have been changed so that secrecy and disclosure rules that threaten whistleblowers with up to two years’ imprisonment no longer apply to health professionals including doctors, nurses, psychologists, pharmacists and dentists.

The backdown follows outcry by the AMA and many other medical groups and individuals against the Act’s secrecy provisions, including the launch of a High Court challenge by the group Doctors for Refugees and the Fitzroy Legal Service.

Doctors for Refugees President Dr Barri Phatafod told the Guardian the decision was a “huge win for doctors and recognition that our code of ethics is paramount”.

The provisions make it a criminal offence for those contracted to provide services to the Department of Immigration and Border Protection to record or disclose information obtained in the course of their work. The penalty is up to two years’ imprisonment.

The operation of immigration detention centres, especially those located offshore on Nauru and Manus Island, has been surrounded by controversy amid claims of assault, self-harm, child abuse and substandard living conditions and medical services.

Groups including Amnesty International have condemned the detention regime, claiming it is causing enormous harm to the wellbeing of asylum seekers and refugees, particularly children.

The AMA has for several years called for the establishment of an independent medical panel empowered to investigate and report on detention centre conditions directly to Parliament.

Doctors have protested that the secrecy provisions in the ABF Act conflict with their ethical duties and their obligations under the Medical Board of Australia’s Code of Conduct, most particularly their paramount obligation to the health of their patients.

These concerns have been magnified by a number of cases in which, it is claimed, authorities have sought to intervene in or override clinical advice on the transfer of detainees in need of medical attention, including the death of Omid Masoumali, who was medically evacuated to Australia from Nauru more than 24 hours after setting himself alight.

The Government denied the intention of the law was to prevent doctors from speaking up on behalf of their patients, and earlier this year Immigration Minister Peter Dutton said he thought it unlikely that health practitioners would be prosecuted under the Act.

But it was revealed that Dr Peter Young, who oversaw the mental health care of detainees for three years, was the subject of Australian Federal Police investigation, including access to his electronic communications and at its most recent National Conference, the AMA passed an urgency motion asking the Federal Council to “look into the matter” of AFP surveillance of doctors.

Dr Young told the Guardian the Government made the amendment because it wanted to avoid legal scrutiny of its policy.

“It’s a big backdown from the Government, and they’ve made it because they didn’t want to go to court, they knew they were going to lose, and they didn’t want their planning and policies discoverable in an open court. That’s what it’s about,” he said.

Adrian Rollins