Having spent 10 months in jail, Damien Linnane knows all too well the dangerous gaps that exist in the healthcare that's provided to Australian prisoners behind bars.
After his release from custody, Linnane – a PhD law student – spent the better part of a decade campaigning for the laws to be changed to allow prisoner access to Medicare, alongside doctors and other high-profile advocates.
Then, with the help of Australia's foremost legal expert in Medicare, solicitor Margaret Faux, Linnane made a discovery that turned everything on its head.
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What if everyone had been going about this all wrong? What if the seemingly uncontrovertible fact that prisoners can't claim Medicare rebates never had any basis in Australian law to begin with?
That's what the pair have argued, and Linnane says they have now proven it with a test case.
Last April, Linanne helped a prisoner claim a Medicare rebate for a GP consultation – in what is believed to be the first time in 50 years.
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What does the law say?
The long-held belief that prisoners are excluded from Medicare stems from the Health Insurance Act 1973.
The legislation, designed to prevent "double-dipping", states that Medicare benefits are not payable for services already funded by a government authority, such as a state.
However, the law doesn't mention prisoners specifically.
"The legislation basically says Medicare benefits won't be paid for [services] that are provided by the state, and it was just kind of accepted at face value that this applied to prisoners for the last 49 years," Linnane says.
In 2024, Linnane, Faux and NSW human rights lawyer Anthony Levin wrote a paper in the Journal of Law and Medicine, arguing that while the state is responsible for public health in prisons, nothing in the law prevents a prisoner from acting as a "private patient".
Just as patients in a public hospital bed could elect to be a private patient and have their services billed to Medicare, prisoners could also enter into a private contract with a practitioner to claim a rebate, they argued.
Nobody bothered to check?
Linnane believes the 50-year "Medicare myth" has persisted for so long because "nobody cares enough about prison health care".
He says that prisoners are typically poor self-advocates and policies that seek to improve their conditions are rarely a vote-winning issue for politicians.
While prisoners in NSW, Queensland and Victoria can technically apply to see a private doctor, they must bear the cost of transport and security escorts. Documents provided under Freedom of Information to Linnane, and seen by nine.com.au, show the average cost of a trip runs to about $1000 just for transport.
Some states, like Queensland, even advise practitioners on their corrective services website that prisoners are ineligible for Medicare – a claim Linnane and Faux argue is "practically rather than legally imposed".
Linnane's personal experience
Linnane's mission is fueled by the 308 days he spent in prison in 2015.
His path to custody began when, in a state of mental crisis, he burnt down a man's house, reacting to a claim made about an alleged crime.
Before he went into prison, Linnane was seeing a psychologist under a mental health plan and said he had made real progress.
When he entered custody and asked a psychologist if the plan could continue, the response changed his life.
"She smiled sadly and said… 'Damien, everyone in prison would benefit from mental health treatment, but there is no funding for that,'" Linnane said.
Without access to his plan, Linnane's mental health deteriorated and he began having suicidal thoughts. However, Linnane claims no mental health treatment was made available except for placement in a "safe cell" – an experience he likened to solitary confinement.
The epiphany
Linnane said exclusion of prisoners from Medicare was built on a foundation of systemic misinformation.
He was even told by prison staff that his Medicare card had been "deactivated" the moment he was processed – a claim he later discovered was incorrect.
The "aha!" moment occurred when Linnane invited Faux to speak at a conference, and Faux, in her speech, questioned why prisoners could enter into contracts with private lawyers but not doctors.
The pair then realised that the denial of Medicare was a technical barrier rather than a legal one.
Wondering if they were "missing something obvious", they ran their theory by Levin, who confirmed their legal logic.
The test case
To prove it could work, Linnane organised a test case last April, setting up a telehealth appointment with a prisoner who had been behind bars for more than 10 years and a GP who agreed to bulk bill him.
When the Medicare rebate was successfully processed, the team celebrated.
"Now we know this works, this gives us the information we need to go forward," Linnane said.
When nine.com.au contacted NSW Justice Health, a spokesperson said the department could not comment as the Commonwealth Department of Health was the responsible agency for legislation around prisoners and Medicare.
A spokesperson for the Department of Health, Disability and Ageing said: "State and territory governments are responsible through their own legislation for the delivery of corrective services, which includes delivery of healthcare to persons in prisons".
What is next?
Linnane and a pro-bono law firm are now seeking declaratory relief in the Federal Court to have a judge formally confirm that this access is legal.
"We just want the court to tell us whether this was possible or not, because no-one has ever asked," Linnane said.
Linnane makes sure to clarify that he doesn't want to replace the whole prison healthcare system, but to supplement it where gaps exist.
And the stakes can be life and death.
Linnane points to the case of Douglas "Mootijah" Shillingsworth, who died of a preventable ear infection.
A coroner found that a Medicare-funded Indigenous health assessment could have picked up the condition, but no non-Medicare equivalent was available.
"The Shillingsworth case is not isolated," Linnane said.
"There have been several coronial inquests into deaths in custody that have connected a death to a lack of Medicare.
"There will be a lot fewer deaths in custody and, in particular Indigenous deaths, if prisons can start billing some services that they aren't able to provide."
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