Ensuring universal access: The case for Medicare in prison

Abstract

This article makes the case for the provision of Medicare universally to all Australians, specifically to those who are currently incarcerated. As the article explains through its focus on mental health, the exclusion of Medicare from prisons was not part of the original design of the Australian health care system, and its ongoing absence has had dramatic impacts on the human rights and health of those in the criminal justice system.

Most people are surprised to hear that people in prison do not have access to Medicare, Australia’s ‘universal health coverage’. Australia has eight separate prison systems, one for each state and mainland territory, ¹ and prison health care services are funded by those state and territory governments. Not only is there a lack of effective national standards to promote and maintain the health of incarcerated people, ² but those in custody also lack access to federal health care options such as the Pharmaceutical Benefits Scheme (PBS). While the absence of Medicare in prison is not an intended feature of the Australian health care system, it is an historical anomaly that has led to a disparate system of health care which in turn has far-reaching consequences for those in the criminal justice system as well as the wider community.

The Australian prison population consists of many people who have otherwise fallen through the cracks of the public welfare system, including community-based health and social services such as housing, mental health, disability, and substance abuse. ³ In that way, they experience much more complex and long-term health care needs. ⁴ The prison environment can also have a lasting impact on an individual’s health, particularly their mental health ⁵ , and this creates further impetus to ensure access to appropriate and integrated support services which can be provided through Medicare.

This article provides an account of the legal and historic context behind access to Medicare in prisons, and how those in prison came to be excluded. It then explains the practical and human rights implications of the Medicare exclusion and how the current arrangements fall below the standards that Australia is required to meet under international law. ⁶ Extending Medicare services to people in prisons would be a significant step towards achieving better physical and mental health outcomes for people in custody and will also have significant benefits for the public more broadly. This includes the reduction in reoffending rates and reduced demand for health and community-based services after people are released.

Origins of the Medicare restriction

Medicare – originally Medibank – was first introduced by the Whitlam government in 1975 through the passing of the Health Insurance Act 1973 (Cth) (‘the Act’) to remedy systemic problems in the public health system. In 1976, the newly elected conservative government established the Medibank Review Committee to try and cut costs from the scheme, stating that Medicare provided ‘few incentives to economy [sic] in the use of health services’. ⁷ The Committee's reports were never tabled in parliament, ⁸ and the Committee did not undertake a cost-benefit analysis before making its recommendations. ⁹ Following the Committee’s recommendations, the section 19(2) amendment was made to the Act, which prevents payment of a Medicare benefit for any service

rendered by, or on behalf of, or under arrangement with (a) the Commonwealth; (b) a State; (c) a local governing body; or (d) an authority established by a law of the Commonwealth, a law of a State or a law of an internal Territory. ¹⁰

While Australia has a mix of publicly and privately operated prisons, health services in prison are rendered on behalf of state and territory governments, and therefore fall under the s 19(2) provision. It should be noted that a person’s individual eligibility for Medicare does not cease while they are incarcerated – rather, prisons are bound by legislation to not apply for Medicare services for people under their control. Prisoners on day release, as well as those on parole, are still able to access Medicare benefits. ¹¹

Section 19(2) was intended to prevent so-called ‘double dipping’ of both state and federal funds. ¹² However, agreements exist to allow a combination of state and federal funding for healthcare in other areas. Under Australia’s National Health Reform Agreement, states that have signed a Memorandum of Understanding with the federal government can access Medicare rebates for persons being treated at public hospitals. ¹³ Even without an equivalent agreement for health services in prison, s 19(2) is still not an absolute prohibition. The federal Health Minister was explicitly given the right to make exemptions to the exclusion, for the purpose of avoiding any disadvantage to individuals caused by a lack of Medicare access. ¹⁴ Significant exemptions have already been granted. In 2006, the Council of Australian Governments introduced the Section 19(2) Exemptions Initiative to increase primary care in rural and remote regions. As of December 2022, 118 areas were participating in the initiative. ¹⁵ While Health Ministers have been willing to grant many s 19(2) exemptions to people outside custody, all calls to grant an exemption to those in prison have thus far been unsuccessful.

Provision of health care in Australian prisons

In the absence of Medicare access, several health care models are used throughout our prisons systems, including services being provided by the public sector, by private non-government organisations, and also through public-private partnerships. ¹⁶ People in prison frequently experience longer-than-appropriate wait times to see medical professionals and are not able to receive certain treatments at all, as many services are too expensive to be provided without access to Medicare rebates. ¹⁷

Prisoners have few options to improve their own health care access. Legal action against the state or territory governments responsible for prisons will not improve conditions, as the issue lies instead with federal legislation. ¹⁸ There are also typically no options to pay for better health care in prison. ¹⁹ Incarcerated people often have no choice of when they can access existing medical services in prison, ²⁰ and experience restricted choice of health care providers, ²¹ despite the settled legal position that prisoners retain all civil rights not expressly taken away as a necessary requirement of imprisonment. ²²

Similar rules apply to publicly funded health care beyond Medicare. For example, the PBS provides affordable medications but is only available to those who have access to Medicare, meaning prisoners also have no access to this service. While medications are indeed given free to Australian prisoners, the range available to them is considerably lower than those available to the general community under PBS. Numerous reports exist of prisoners in Australia only being given paracetamol for severe pain, including those suffering from conditions such as broken necks or cancer. ²³ Medicines approved through PBS may take additional years to become approved for prescription to those in custody. ²⁴ Other medications that are available in the community are not accessible at all in prisons due to the lack of access to the PBS. ²⁵

The National Disability Insurance Scheme (NDIS) is also curtailed in prison. Rule 7.25 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 limits the amount of support the NDIS can provide in prisons, such as expressly prohibiting day-to-day care and support needs. As a result, it is rare for incarcerated people to be able to access their existing NDIS funding, and typically only transitional support services are available. ²⁶ It is also ‘exceedingly difficult’ for people to apply for NDIS funding while in prison. ²⁷ NDIS is therefore in no position to help mitigate a lack of treatment caused by the Medicare exclusion, despite the disproportionate number of people with disabilities and mental health issues in custody.

As we explain below, the cumulative effect of these restrictions is that an already vulnerable prison population, with higher than average levels of health care needs, are prevented from receiving services that are necessary to support their health and rehabilitation.

Understanding prisoner health needs

Most prisoners come from extremely disadvantaged backgrounds, ²⁸ and many have had little to no health care before entering custody. Prisoners also underutilise health services both before and after release, ²⁹ often because health is seen as a lower priority than issues like housing, employment and caring obligations. ³⁰ The lower level and quality of health care available in prison, compared to what is available in the general community, puts prisoners at additional risk of experiencing long-term physical and mental illnesses. The absence of Medicare in custody also continues to impact some prisoners on their return to the community as prisons are not required to ensure incarcerated people have an active Medicare card available to them upon release. Accordingly, 36 per cent of prisoners either do not have, or do not know if they have, a Medicare card available to them when they leave custody. ³¹

Mental health

While the lack of Medicare impacts many issues in prison, such as physical health, disabilities and communicable disease, the focus of this article relates to how it impacts on mental health. Mental illness is overrepresented within prison populations, ³² and there is clear evidence that people with cognitive and mental impairments are overrepresented at every stage of the criminal justice system. ³³ With 40 per cent of prisoners reporting being formally diagnosed with a mental health condition, it is clear that proportions are far higher than the general Australian community. ³⁴ Further, the actual proportion is estimated to be even higher due to undiagnosed conditions, and the fact that incarcerated people may choose not to self-report due to concerns about the stigma and consequences surrounding such disclosures. ³⁵

A Mental Health Care Plan, which provides ongoing psychological counselling sessions after an initial consult with a general practitioner, can be provided to Australians in the general community, but those in custody cannot access this Medicare-supported psychological care. Most people in prison have little to no access to ongoing counselling. ³⁶ This impacts on both the affected individual and the community, as research shows that people with mental illness who do not receive therapy in prison are more likely to be re-imprisoned for subsequent offences. ³⁷

Advocates, including Human Rights Watch, ³⁸ have long documented both the exacerbation of mental health conditions in prison, ³⁹ as well as the incidence of mental illnesses developing as a result of incarceration. ⁴⁰ There is a strong consensus that mental health services in prison are inadequate. There are currently no Australian guidelines for optimal mental health staffing in custody. In the absence of Australian guidelines, it is instructive to consider the Sainsbury Centre for Mental Health in the United Kingdom, which recommends a ratio of one full-time equivalent mental health worker per 50 prisoners. ⁴¹ In Australia, the ACT is only the jurisdiction which meets this target, and it holds the least number of prisoners. ⁴² In Western Australia, fewer than three full-time psychologists service the state’s 17 adult prisons. ⁴³ There are approximately 6200 adult prisoners in Western Australia, ⁴⁴ meaning the ratio of psychologists is fewer than one per 2066 people. By comparison, there are approximately 97 full-time psychologists per 100,000 people available to the general community in Western Australia, ⁴⁵ giving a ratio of one per 1031 people.

There are anecdotal reports that prisoners who disclose poor mental health or request counselling are only directed to a phone number of a service to call once they are released. ⁴⁶ For disclosures of severe mental health crises, the typical response is to place the individual in solitary confinement on protective grounds. ⁴⁷ Solitary confinement is typically referred to by the euphemisms ‘segregation’ or ‘separate confinement’ in Australia, despite the practice meeting the international definition of solitary confinement. ⁴⁸ In reality, it means that a person is typically placed alone in their cell for 22 hours or more a day, with no access to human contact and limited access to natural light and ventilation. ⁴⁹ Rule 44 of the United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners (‘the Nelson Mandela Rules’) forbid solitary confinements for periods longer than 15 days, ⁵⁰ a practice that is common in Australia. In Queensland, Corrective Services can order solitary confinement, under a euphemism, for three to six months, with the option of consecutive orders making the actual period indefinite. ⁵¹

Prisoners, however, are still subjected to solitary confinement in the absence of active mental health support, ⁵² despite the practice being criticised for many years. ⁵³ Solitary confinement significantly deteriorates mental health conditions, physical health conditions, and rehabilitation prospects. ⁵⁴ In the absence of more appropriate supports, prisons often have no choice but to subject people at risk of suicide or self harm to this dehabilitating treatment, as they have a duty of care to prevent immediate harm. ⁵⁵ Having the option of active mental health treatment, such as through a Medicare-funded Mental Health Care Plan, would be a far more appropriate option in many cases.

Suicide and a lack of support are major causes of death in custody among people with disabilities, ⁵⁶ and mental health disorders or cognitive disability is a factor in 41 per cent of Indigenous deaths in prison. ⁵⁷ It is known that prisoners have elevated rates of mortality and morbidity shortly after their release from prison and they are more likely to die during this time than in custody. ⁵⁸ The risk of suicide is more than six times greater for people recently released from prison, ⁵⁹ and suicide has been found to be the leading cause of death among this group. ⁶⁰ Addressing mental health issues before people are released is therefore predicted to reduce the number of deaths and also the wider strain on the public health system, as we explain in the following section.

Benefits of introducing Medicare

While there is a gap in the research on any economic modelling specifically for the cost effectiveness of introducing Medicare into prisons, there is compelling evidence that it will have a positive return on investment. The direct cost of incarceration is $97,010 per person each year, with indirect costs estimated to increase the figure to $144,480. ⁶¹ While, superficially, the cost of health services may be considered expensive, it is far cheaper than reincarceration. ⁶² In Australia, intervention strategies for people with mental illness and cognitive impairment are known to be cost effective, ⁶³ and it is believed that screening for prisoners with mental health issues would also give ‘extraordinary cost benefits to the community’. ⁶⁴ A study completed in 2015 estimated that giving every Indigenous prisoner in Australia a health assessment would cost less than 0.01 per cent of the Medicare budget. The focus of such assessments is disease prevention, meaning they will likely have strong cost-effectiveness. ⁶⁵ As noted by the World Health Organization:

Sooner or later most prisoners will return to the community, carrying back with them new diseases and untreated conditions that may pose a threat to community health and add to the burden of disease in the community. Thus there is a compelling interest on the part of society that this vulnerable group receive health protection and treatment for any ill health. ⁶⁶

In other words, the availability of Medicare to people in prison is not only necessary from a human rights and social justice perspective (which we discuss further below) but it is also considered to have societal benefits beyond the prisoners themselves.

Treating conditions only after people are released places additional strain on public health care services and funding. People released from prison access primary care at two to three times the rate of age-and sex- matched people in the general population and incur health care costs that are 2.1-fold higher. ⁶⁷ Rates of hospitalisation among recently released Indigenous Australians have also been reported as three times higher than that of the general population. ⁶⁸ As they receive a constant influx of marginalised people, correctional centres have the potential to offer services to detect and treat previously undiagnosed physical and mental health problems, leaving people better prepared for release and reintegration into society. According to Plueckhahn et al, it is ‘paradoxical’ that prisoners are instead excluded from Medicare – the very service that could provide this necessary reintegration support. ⁶⁹

Improving the mental health of people in prison is beneficial from health care, criminal justice and economic perspectives. Research proves that poor mental health is a strong predictor of recidivism, and there is also convincing evidence that improving the physical health of people in prison reduces their rates of recidivism. ⁷⁰ The Productivity Commission recognises improved health care and mental health treatment in prison as a factor in reducing recidivism and saving on the costs of reincarceration. ⁷¹ Additionally, it is suggested that improving health care by introducing Medicare in prisons would also support several of the goals listed in the 2030 Agenda for Sustainable Development, as well as targets listed in the National Agreement on Closing the Gap. Australia has had mixed performance on meeting its targets in the 2030 Agenda for Sustainable Development thus far, ⁷² and is also not on track to meet many targets in the National Agreement on Closing the Gap, including reducing the number of Indigenous adults in custody. ⁷³

Calls for reform

The Medicare exclusion in prisons is not widely known, ⁷⁴ however, there has been a long history of advocacy focusing on removing the exclusion. Those calling for the introduction of Medicare in prisons include the following:

• Australian Medical Association ⁷⁵

• Public Health Association of Australia ⁷⁶

• VACRO ⁷⁷

• National Aboriginal and Torres Strait Islander Legal Services (NATSILS) ⁷⁸

• Royal Australian College of General Practitioners ⁷⁹

• Royal Australian and New Zealand College of Psychiatrists ⁸⁰

• Australian Child Rights Taskforce ⁸¹

• Royal Commission into the Protection and Detention of Children in the Northern Territory. ⁸²

The Medicare exclusion in custody has also been a concern of the New South Wales (NSW) Coroner. In July 2022, the findings were released of an inquiry into the death of Mootijah Shillingsworth, an Indigenous man who died in custody from an ear infection. The Coroner ruled that the death was preventable and listed making Medicare available in prisons as one of their four recommendations. ⁸³ That same month, during the inquiry into the death in custody of Indigenous man Kevin Bugmy, a senior prison health representative described the lack of Medicare access in prisons as the ‘elephant in the room’ in regard to holistic care, noting that if prisoners had Medicare then more services would be available. ⁸⁴

Calls for Medicare in prison are not a recent phenomenon. The first ever review of women’s prisons in NSW, which was conducted for the Minister for Corrective Services in 1985, recommended women in prison should retain access to Medicare. ⁸⁵ Further, the NSW Inspector of Custodial Services recognises the barrier that the inability to access Medicare creates in prisons, explicitly stating that ‘further advocacy’ is needed to get Medicare to those in custody to ‘assist in achieving a comparable level of care and continuity of primary care.’ ⁸⁶ A parliamentary inquiry published in 2018 found that existing health services in NSW prisons are not adequately resourced to meet needs, especially those relating to mental health. ⁸⁷ Unfortunately, this is not a recent development in NSW. The 1978 Royal Commission into NSW Prisons also found that health care in the state’s prisons was inadequate. One of the commission’s recommendations was that prisoners should receive the same medical care as private citizens, and the cost of such provisions would be no justification for failing to provide necessary care. ⁸⁸

International frameworks and obligations

As indicated above, current legislation and policies inhibit those in custody from accessing effective health care, however numerous international frameworks collectively entitle prisoners to the same quality of health care as the general population. Discussed below are several of the most prominent. ⁸⁹

Australia has a general commitment under the International Covenant on Economic, Social and Cultural Rights (ICESCR). ⁹⁰ Article 12 of this treaty, which Australia has ratified, declares all people have the right to the ‘highest attainable standard of physical and mental health’. ⁹¹ Specifically, this also means that prisoners have the right to equivalent health care to that received by the general population. ⁹² Rule 24(1) of the Nelson Mandela Rules states that ‘[p]risoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge’. ⁹³ Clearly, in Australia, this is not currently the case. ⁹⁴

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) prohibits ‘cruel, inhuman or degrading treatment or punishment’, ⁹⁵ and has been cited many times in relation to the rights of prisoners at cases brought before the UN Human Rights Committee (HRC). In the case of Williams v Jamaica, the HRC expressed the view that withholding treatment from people in prison with mental health issues is cruel and degrading and impinged on the person’s inherent dignity. ⁹⁶ In the case of Lantsova v Russia Federation, the HRC expressed the view that States are obligated to provide health care to prisoners where it is deemed required, even in the absence of a complaint or request by the prisoner. ⁹⁷ As we have noted, Australia currently, on a routine basis, denies treatment for mental health issues in prison, raising clear concerns about Australia’s compliance with its international obligations. ⁹⁸

Due to the high proportion of people with disabilities and Indigenous Australians in prisons, both the UN Convention on the Rights of Persons with Disabilities (CRPD) ⁹⁹ and the Declaration on the Rights of Indigenous Peoples (UNDRIP) are particularly relevant to any discussion of prison health care, and the Australian government has a clear obligation to take UNDRIP into consideration in regards to health policy in prisons. ¹⁰⁰ Article 24 of UNDRIP states that Indigenous people ‘have an equal right to the enjoyment of the highest attainable standards of physical and mental health’. ¹⁰¹

The CRPD, which Australia ratified in 2008, is becoming the standard reference point for people with disabilities who are impacted by the criminal justice system. ¹⁰² Article 15 of the CRPD provides that no person be ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment’. It has been suggested Australian prisons are violating the CRPD, with a lack of funding being a major contributor to this overall issue, ¹⁰³ and it is also argued that solitary confinement of people with mental health issues constitutes ‘cruel, inhuman or degrading treatment’. ¹⁰⁴ In 2018, the Victorian Ombusdman wrote a report on a woman found not guilty of a crime due to mental impairment, who was held in solitary confinement in prison for more than 18 months, partly due to a lack of funding for treatment. The Ombudsman noted the woman’s case was not isolated, and that her imprisonment had failed to comply with both the CRPD and the Nelson Mandela Rules. ¹⁰⁵ Thus, Australia's continued reliance on solitary confinement as a method for managing persons in distress is a violation of the CRPD.

Conclusion

This article has explored the implications of the lack of Medicare access for prison health care, including the health implications for those who are imprisoned, the community impacts, and the failure by Australia to meet its human rights commitments under a range of treaties. Despite broad support from medical and legal organisations, there has been inadequate attention paid to making these reforms a priority. We advocate for urgent reform to provide Medicare access to those in custodial settings.

Health care in Australian prisons has been described as being provided by a ‘mish-mash of services which responds in a variable manner’, ¹⁰⁶ and which ‘rarely manages to deliver what’s needed’. ¹⁰⁷ As this article has explained, there are cogent reasons to finally introduce Medicare to those who are imprisoned. At the same time, there are few reasons to oppose reform, although we accept that the administrative arrangements may take time to properly implement. Prisoner health is an important human rights issue, and the impact of the current absence of Medicare extends beyond just prisoners. Routine Medicare-funded health care has the potential to reduce recidivism, and to lessen strain on police, social services and the public health system that is caused by the acute care needs of former prisoners. It is often said that a society should be judged by the way it treats its most vulnerable members – and in the case of prison health care, there is much to be gained both individually and collectively by tackling this reform.