Fighting racism in the healthcare system
8th Apr 2021
One of the first steps in dealing with a systemic issue is acknowledging that there is a problem to begin with. As lawyers, we must be aware of and act against endemic racism in both the healthcare and legal systems.
In January 2016, 27-year-old Wiradjuri woman Naomi Williams died of septicemia at Tumut Hospital while 22 weeks' pregnant with her son. In the seven months prior to her death, she made 20 visits to Tumut Hospital and local medical centres seeking care.
The National Justice Project represented Naomi’s family at the coronial inquest into her death which concluded in July 2019. In her report, Coroner Harriet Grahame found that there were clear and ongoing inadequacies in the care received by Naomi Williams; that she felt unheard by her doctors and the staff at Tumut Hospital; and, most importantly, that unconscious bias had contributed to her death.
This is a pattern that we see all too often when we work with First Nations clients – they seek medical care but are turned away or have their symptoms disbelieved by healthcare staff.
The Naomi Williams coronial inquest heard from a number of witnesses who spoke about their experiences of racism and second-rate care at Tumut Hospital. Of the nine inquiry recommendations, seven suggested that the Murrumbidgee Local Health District review and improve care for First Nations patients including looking at levels of implicit bias, improving First Nations representation among staff, and consulting with the local community.
Many doctors still believe that the health system is not racist and that everyone is treated equally. However, the system operates in a way that disproportionately excludes and harms First Nations people.
For example, to receive a kidney transplant, a patient must not live in a remote area far from quality medical care, not smoke, not be obese, and not have diabetes or a vascular disease. These are scientifically determined criteria but when applied to the First Nations population, they create an effective barrier to treatment.
The result is that First Nations patients are ten times less likely than non-Indigenous patients to be added to the waiting list for a kidney donation transplant. The President of the Australian Medical Association at the time stated that this was likely driven by racism.
So how do we, as lawyers, address this issue?
The reality is that we too can be oblivious to the racism inherent in our own institutions. We accept the myth that justice is blind. But we don’t need to look far to see that our colonial legal framework is based around a Constitution written solely by privileged white men that was immediately put to work to implement the White Australia policy.
The legal remedies that we so often look to in the fight against racism fail to deliver systemic change. Coronial inquiries have legal limits and struggle to deliver tangible outcomes. There is no accountability for racism within the field of medical negligence. Even our racial discrimination scheme is often incapable of addressing insidious or systemic racism, and requires an overt experience of racial violence which doesn’t always reflect the racism experienced every day by First Nations people.
Financial barriers also frustrate access to justice where clients cannot pay for costs or disbursements, and where the chances of success don’t appear to justify the expense of medico-legal reports.
In the face of these challenges, it’s important to realise that these issues need to be recognised and addressed by organisations such as the ALA, not just by individuals. Like other fights against injustice, the fight against racism will take time and require self-reflection.
However, lawyers are in a privileged position to act. Whether it is by recognising and calling out racism in our personal and professional lives, adopting and implementing firm-wide anti-racism policies or taking on cases of medical negligence faced by First Nations clients, we can and should be actively seeking to be anti-racist.
Lawyers can also assist the National Justice Project in our regional outreach programs and systemic justice work. There is a substantial legal need in health justice, with 7.9% of First Nations people surveyed by the Law and Justice Foundation requiring legal assistance with health law.
The National Justice Project’s health justice work encompasses outreach clinics, community rights education, supporting First Nations organisations to develop patient advocacy training programs, advocacy for systemic reform, providing legal support to our clients and their families and preparing and managing health care complaints. With your help we can continue to provide and expand our essential work in this area.
George Newhouse is the principal solicitor and co-founder of the National Justice Project (a not-for-profit legal centre) and an adjunct professor of law at Macquarie University. George was the recipient of the 2019 ALA Civil Justice Award.
Karina Hawtrey is a solicitor at the National Justice Project and proud Kamilaroi (Gamilaraay) woman. She has experience in migration and refugee law and has worked as a writer at National Indigenous Television.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).