Campaign to End "50-Year Medicare Myth" for Australian Prisoners

Damien Linnane, a PhD law student with firsthand experience of 10 months in jail, has brought to light significant gaps in the healthcare provided to Australian prisoners.

Following his release, Linnane dedicated nearly a decade to campaigning for changes to allow prisoner access to Medicare, collaborating with a network of doctors and other advocates.

Working alongside Medicare legal expert, solicitor Margaret Faux, Linnane made a crucial discovery: the long-held belief that prisoners cannot claim Medicare rebates might actually lack a basis in Australian law.

The Legal Argument Challenging Decades of Practice

The traditional understanding regarding Medicare in prisons stems from the Health Insurance Act 1973. This Act aims to prevent Medicare benefits for services already funded by a government authority, thereby avoiding "double-dipping." Crucially, however, the legislation does not specifically mention prisoners.

In 2024, Linnane, Faux, and NSW human rights lawyer Anthony Levin co-authored a groundbreaking paper in the Journal of Law and Medicine. They argued that while the state is responsible for public health in prisons, the law does not prevent a prisoner from acting as a "private patient."

This would allow prisoners to enter a private contract with a practitioner and claim a Medicare rebate, mirroring how patients in public hospitals can elect private care.

Linnane suggests that this "50-year Medicare myth" persisted primarily due to a lack of focus on prison healthcare. He points out that prisoners are typically poor self-advocates, and their issues are not considered "vote-winning" for politicians. He also noted that some states, like Queensland, actively advise practitioners that prisoners are ineligible for Medicare – a claim Linnane and Faux argue is "practically rather than legally imposed."

Personal Experience Fuels a Decade of Advocacy

Linnane's powerful advocacy is deeply rooted in his own experience of 308 days in prison in 2015. He recounted suffering a mental health crisis during which he committed arson.

Prior to his custody, Linnane was making progress with a psychologist under a mental health plan. However, this vital support was discontinued upon his incarceration due to a lack of funding for mental health treatment in prison.

His mental health subsequently deteriorated, leading to suicidal thoughts. During this critical period, he received no mental health treatment other than placement in a "safe cell."

The pivotal realization came when he learned that his Medicare card was not deactivated upon entry to prison, contrary to information he had received from prison staff. The full scope of the denial of Medicare as a technical, rather than a legal, barrier became clear when Margaret Faux posed a critical question: why could prisoners enter contracts with private lawyers but not with doctors? Their legal logic was subsequently confirmed by human rights lawyer Anthony Levin.

Successful Test Case and Future Endeavours

In April, a significant milestone was reached when Linnane successfully facilitated a test case. A prisoner accessed a bulk-billing GP via telehealth, and a Medicare rebate was successfully processed. This is believed to be the first such instance in 50 years.

Linnane and a pro-bono law firm are now pursuing declaratory relief in the Federal Court to formally confirm the legality of this access. Linnane explicitly clarifies that his aim is to supplement existing prison healthcare where gaps exist, not to replace it.

He referenced the tragic case of Douglas "Mootijah" Shillingsworth, who died from a preventable ear infection that could have been identified by a Medicare-funded Indigenous health assessment.

Linnane states that several coronial inquests have explicitly linked deaths in custody, particularly Indigenous deaths, to a lack of Medicare access.