(Cth) Provide Access to Medicare for People in Custodial Settings

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Author: Emilie Everingham, Elaine Qiao, Jessica Luu, Olivia Davies, Wei-Hsuan Kai | Publish date: 11/12/2025

Trigger Warning: suicide, medical neglect, and Indigenous health inequities.

• P: People in custodial settings are unable to access the Medicare Benefits Schedule (MBS). 

• S: The Minister for Health should amend Section 19(2)(b) of the Health Insurance Act 1973 (Cth) to provide an exemption for state-owned custodial institutions, permitting them to arrange MBS services for people in their custody.

  
  

Problem Identification: 

Section 19(2)(b) of the Health Insurance Act 1973 (Cth) stipulates that ‘a medicare benefit is not payable in respect of a professional service that has been rendered by, or on behalf of, or under an arrangement with…a State.’

According to Linnane et al. (2023), this means that state-owned custodial settings (i.e. prisons) are not permitted to arrange federally funded Medicare services. Rather, it is known that healthcare in custodial settings is solely provided by state and territory health or corrections departments. Linnane et al. (2023) stated that this can result in a ‘lower level and quality of health care available in prison, compared to what is available in the general community…[putting people in custodial settings] at additional risk of experiencing long-term physical and mental illnesses.’ They further argued that these conditions can exacerbate health inequities for people in custody and increase the cost of community-based care upon release.

Context: 

The MBS refers to the list of eligible services for public and private patients that are partially subsidised by the Federal Government. The Australian Institute of Health and Wellbeing (AIHW) stated that the Australian public has access to both federally-funded MBS and state-based services. 

Linnane et al. (2023) noted that this legislative limitation was instated (in 1973) to prevent the duplication of funding and services provided for prison healthcare. As illuminated by Sadler (2022), this was based on the assumption that state and territory governments are providing equivalent services to the MBS. However, Stuart Kinner, Head of Justice Health Unit at the University of Melbourne in 2022, argued that ‘there is unambiguously insufficient funding in the system for prison healthcare providers to provide equivalent care’. Subsequently, the Australian Medical Association (AMA) reported that ‘people in custodial settings experience higher rates of chronic physical disease, mental ill-health, communicable disease, and addiction’ relative to the general population.

Arguments:

The Community Justice Coalition (CJC) argued that without MBS access, people in custodial settings experience comparatively lower health outcomes. Trent, an Indigenous man who was previously incarcerated, explained that ‘people die in jail because they don’t get proper medical care’. Gerry Georgatos, the Coordinator of the National Suicide Prevention and Trauma Recovery Project, has corroborated that people have ‘most certainly… suicided or died before their time from undiagnosed ailments or from poorly treated conditions and preventable complications’ as a result of not having access to MBS services. 

The Royal Australian College of General Practitioners suggested that there is some resistance towards providing the MBS to people in custodial settings, as this would require heavier federal spending. Linnane et al. (2023) rebutted that while federal investment required to make the MBS available in prisons could be considered ‘superficially’ high, it could counteract increased health expenditure on people in custody upon their release. Research has shown that the absence of the MBS in prisons has low ‘cost-effectiveness’ as it results in healthcare spending that is ‘2.1 fold higher’ for people previously in custody than for the general public.

Advice/Solution Identification:

Linnane et al. (2023), the AMA and CJC have called to provide access to the MBS for people in custodial settings. According to Georgatos, providing the MBS in custody could help to prevent premature death from suicide, ‘undiagnosed ailments or from poorly treated conditions and preventable complications.’ The AMA argued that being able to access the same treatments and services before, during and after incarceration through consistent MBS support would ‘ensure continuity of care at all stages of a custodial journey, and access to a standard of health care that is comparable to the general community.’ Further, they stated that ‘healthcare services should not only aim for equivalence of service quality but also equity in health outcomes.’

Precedent:

There is international precedent for providing access to national healthcare benefits to individuals in custodial settings. In the UK, France and New Zealand, people in custodial settings retain full access to benefit schemes within their national healthcare systems.

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Public Support: 

1. The Royal Australian College of General Practitioners     

2. The Public Health Association Australia

3. The Justice Map

4. InSight

5. VACRO

6. Change The Record, Human Rights Law Centre and the NATSILS

7. Royal Australian and New Zealand College of Psychiatrists

News Coverage:

• Sydney Morning Herald - "The change to Medicare that could reduce deaths in custody." A conversation about an investigation done by several news outlets about how allowing people in custody access to the MBS could reduce deaths in custody. By: Georgina Mitchell | Mon 6 March 2023 - Read the article here.

• SBS News - "Doctors say prisoners are not being treated fairly by the health system." Conversation over the death of an Indigenous man, Josh Kerr, in custody and how his death could have been prevented had he had access to the MBS and the PBS. By: Youssef Saudie and Danielle Robertson | Tues 20 February 2024 - Listen to the episode here.

• THE CONVERSATION - "Comprehensive Indigenous health care in prisons requires federal funding of community-controlled services." Conversation about the Royal Commission into Aboriginal Deaths in Custody’s recommendations to increase access to federal health services for indigenous people in custody. By: Megan Williams | Thurs 20 May 2021 - Read the article here.

• ABC News - "Experts, lawyers lift lid on Australia's 'woefully under-funded' prison mental health services." A conversation about how overcrowding and underfunding in prisons are causing substantial harm, and prisoners' exclusion from the MBS’ benefits is compounding the effects. By: Mackenzie Colahan | Thurs 23 March 2023 - Read the article here.

Where to go to learn more: 

1. Medicare Access for Prisoners (CJC) - The report directly addressed the importance of access to the MBS in custody and the impacts this would have on improving healthcare outcomes for people in custody. Read the full report here.

2. Health Care in Custodial Settings (AMA) - This position statement argued for improved healthcare in custodial settings and emphasised that, as people in custody experience a higher burden of chronic and complex illnesses, access to the MBS in custody is vital. Read the full position statement here. 

3. Ensuring Universal Access: The case for Medicare in prison (Linanne et al. 2023) - This journal article provided a comprehensive case for the provision of the MBS in prisons and examined how the MBS exclusion impacts the mental health and human rights of people in custody. Read the full article here.

4. Health Insurance Act 1973 (Cth) - Read the full Act here.

Human Perspective: 

Trigger Warning: Indigenous death in custody.

Ben was a 35-year-old Indigenous man in custody. He came from a low socio-economic background, but before imprisonment, he showed no signs of chronic illness. During his sentence, Ben was unable to receive the annual Aboriginal health assessments he would normally be eligible for in the community under the MBS system. These screenings were designed to detect preventable conditions such as high blood pressure and diabetes. Without this care, Ben’s early symptoms of fatigue, headaches and excessive thirst went uninvestigated. What began as undiagnosed hypertension and type 2 diabetes progressed unnoticed until he suffered a significant, preventable stroke. Experts later said that had Ben received consistent MBS health checks, his conditions could have been easily identified and then treated, and his death could have been avoided.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/A

Support 

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Australian Institute of Health and Welfare. (2024, July 2). Health system overview. https://www.aihw.gov.au/reports/australias-health/health-system-overview

Australian Institute of Health and Welfare. (2023, November 15). The health of people in Australia's prisons 2022. https://www.aihw.gov.au/reports/people-in-prison/the-health-of-people-in-australias-prisons-2022

Australian Medical Association. (2024, February 12). AMA submission - PBAC March Meeting Agenda Item: Access to medicines for People in Custodial Setting. https://www.ama.com.au/articles/ama-submission-pbac-march-meeting-agenda-item-access-medicines-people-custodial-settings

Australian Medical Association. (2023). Health Care in Custodial Settings [Position Statement]. https://www.ama.com.au/sites/default/files/2023-03/AMA%20position%20statement%20-%20Health%20Care%20in%20Custodial%20Settings%20-%202023.pdf

Community Justice Coalition. (2022, October 24). Medicare access for prisoners.  https://www.communityjusticecoalition.org/wp-content/uploads/2022/11/Medicare-access-for-prisoners-compressed.pdf

Department of Corrections. (n.d.). Health care. New Zealand Government. https://www.corrections.govt.nz/our_work/in_prison/being_in_prison/health_care

Department of Health, Disability and Ageing. (2025, August 4). MBS Online. Australian Government. https://www.mbsonline.gov.au/internet/mbsonline/publishing.nsf/Content/Home

GOV.UK. (n.d.) Healthcare in prison. United Kingdom Government. 

https://www.gov.uk/life-in-prison/healthcare-in-prison

Gregoire, P. (2023, January 4). Prisoners must be given access to Medicare, says Gerry Georgatos. Sydney Criminal Lawyers. https://www.sydneycriminallawyers.com.au/blog/prisoners-must-be-given-access-to-medicare-says-gerry-georgatos/

Health Insurance Act 1973 (Cth). 

https://classic.austlii.edu.au/au/legis/cth/consol_act/hia1973164/s19.html

Hendrie, D. (2019, September 16). Expert backs RACGP calls for access to specific MBS items in prison. NewsGP. https://www1.racgp.org.au/newsgp/clinical/expert-backs-racgp-calls-for-access-to-specific-me

Human Rights Guide. (n.d.). Free Medical Care. 

https://www.guidedroitshomme.fr/en/themes/prisons/health/medical-costs 

Linnane, D., McNamara, D., & Toohey, L. (2023). Ensuring universal access: The case for Medicare in prison. Alternative Law Journal, 48(2), 102-109. https://doi.org/10.1177/1037969X231171160 

Sadler, D. (2022, June 23). The 44,000 Australians blocked from Medicare. The Justice Map. https://thejusticemap.substack.com/p/the-44000-australians-blocked-from