Medical treatment in the best interests of the child: onshore, and offshore

There are troubling disparities between the medical treatment that children receive, depending on whether they live onshore – in Australia, or offshore – in immigration detention in places like Nauru.  But do these disparities have a legal basis?

Medical treatment and the best interests of the child: onshore

Exercising their parens patriae jurisdiction, Australian Supreme Courts will intervene – paternalistically, and unapologetically – to ensure that children receive the medical treatment that is in their best interests.

In many circumstances this means granting orders to authorise medical treatment so that Australian children don’t die.

Although the context is very different, recent cases in NSW and Victoria involving the administration of blood products to Jehovah’s Witnesses illustrate the point.

In Sydney Children’s Hospital Network, The Application of [2018] NSWSC 1259, the Supreme Court of NSW authorised the administration of blood products during open heart surgery that the court expected an unborn baby would require following birth.  The pregnant woman was a Jehovah’s Witness who had prospectively refused to allow her child to receive blood.

In a similar case held a few weeks later, the Supreme Court authorised a blood transfusion, if necessary, during surgery on a 6 year-old to remove a tumour.

In Mercy Hospitals Victoria v D1 & Anor [2018] VSC 519, the court order cleared the way for a blood transfusion to be given to a 17 year-old pregnant girl if she haemorrhaged following birth.

People may disagree about the merits of compelling a Jehovah’s Witness teenager to accept a blood transfusion, but the point is that courts have jealously guarded the scope of the parens patriae jurisdiction, and it survives intact to ensure that children in Australia receive medical treatment when it is in their best interests to do so.

Medical treatment and the best interests of the child: offshore

A consensus seems to have arisen among many Australians that treating children poorly and neglecting their physical and psychological needs is the price to be paid for “stopping the boats” and preventing asylum seekers from “jumping the queue”.

This issue has become highly politicised.

Politicians flash border protection pectorals, and many Australians respond positively.

But do Australians really want children to be neglected, and denied medical treatment?

Because that’s what’s been happening for many years, and it’s set to happen again if the “Medevac Bill” (the Home Affairs legislation Amendment (Miscellaneous Measures) Act 2019 is repealed.

Before considering this legislation, let’s pick a case study, but take our facts – not from the Minister’s office, but from an institution in our democracy that should and must remain apolitical: the courts.

Rowena’s story

“Rowena” (a pseudonym) is a young girl; we don’t know her age but we know she is not yet a teenager.

Her parents fled their country of origin, and travelled to Christmas Island by boat.  They arrived in 2013, thereby becoming “unauthorised maritime arrivals” under Australia’s Migration Act 1958.

Under section 198AD, they were transferred to Nauru, a country of 21 sq km that assesses asylum seekers who wish to settle in Australia, pursuant to a Memorandum of Understanding between both governments.

The Australian Government pays all the costs of assessing and housing asylum seekers.

These accommodation precincts (whatever you want to call them) would not exist if they were not a manifestation of Australian government policy.

In 2014, Rowena’s parents were assessed as refugees under the Refugee Convention and granted temporary settlement visas in Nauru.

However, Rowena and her parents were not permitted to settle in Australia.  Unless they chose to return to their home country, they were obliged to remain indefinitely on Nauru, or until a third country agreed to settle them.

Around March 2017, Rowena’s parents separated, and her father went to live with his new girlfriend.

Rowena’s mental health began to deteriorate around April that year.

In October 2017, Rowena told a child psychologist employed by International Health and Medical Services (IHMS, a health services contractor), that a voice tells her that “dying is better than living, you’ll be free”.

Rowena told the child psychologist that “she wants to die and she wants to kill herself and that if she was going to kill herself she could ‘make myself lost in the jungle and put a knife in my stomach’”.

In December 2017, Rowena attempted suicide by taking 14 tablets of her mother’s medication.  She was admitted to hospital with respiratory distress, chest and abdominal pain.

Three days later, a counsellor employed by IHMS wrote in the clinical notes that Rowena said: “The medication didn’t kill me, I will try something else”.  “I will kill myself with a knife or jump off the rocks”.

Rowena told the counsellor that she knew how to kill herself because she “has seen in the movies people stabbing themselves with knives”.

She told the counsellor that “attempting suicide made her feel good”.

A psychiatrist employed by IHMS wrote:

“It was clear that this bright child was a little confused on what it meant to be dead.  She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself.  She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere”.

Rowena’s mother began sleeping in the same room as Rowena for fear she might commit suicide.

However, on 18 December 2017, Rowena ran away from her mother and according to an affidavit by Professor Louise Newman, a child psychiatrist and Professor of Psychiatry at the University of Melbourne, “was found in a position to jump from a height and said that a voice was telling her to jump, jump, jump”.

Professor Newman concluded that there was “clearly an immediate risk” that Rowena would engage in further suicidal behaviour.

Rowena required, in her opinion, treatment by specialists qualified in child psychiatry “in an inpatient child mental health facility with appropriate supervision”.

On 20 December, Rowena and her mother were transferred to the Restricted Accommodation Area within the Regional Processing Centre on Nauru.

According to Professor Newman, this was not an adequate response.

Professor Newman wrote: “Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide”.

In Professor Newman’s opinion, Rowena needed a safe environment where she could live with her mother and sister, “supported by trained child and adolescent mental health staff on a 24 hour basis”.

Nauru does not provide such facilities.

Rowena v Minister for Immigration and Border Protection

Rowena’s circumstances came before Justice Murphy in the Federal Court in February 2018.

According to evidence in that case, a panel called the “Overseas Medical Referral” Committee, based in Nauru, was required to approve all medical transfers, in conjunction with Australian Border Force officials.

According to evidence given by a GP who had previously worked for IHMS on Nauru, the Overseas Medical Committee was erratic and poorly administered, and the medical transfer system “inefficient and driven by political and not medical concerns”.

After multiple attempts to obtain authorisation from the Commonwealth, IHMS, and others to transfer Rowena from Nauru, Rowena, through her litigation representative, sought an injunction requiring the Minister for Immigration and Border Protection to transfer her to a specialist child mental health facility that could provide the comprehensive psychiatric care recommended by specialists.

The basis for her case was that the Australian Government (the Commonwealth) owed her a duty of care which it had breached, and continued to breach, by “failing to provide her with access to safe and appropriate medical facilities and treatment”.

As Murphy J stated, “The application essentially alleges a continuing tort”.

The Court considered whether there was an arguable case that the Commonwealth owed Rowena a duty of care, applying well-known “salient features” identified in Caltex Refinieries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102]-[103].

The Commonwealth conceded that there was a serious question to be tried, but argued that Rowena’s psychiatric problems could be adequately treated on Nauru, despite there being no child psychiatrist stationed in Nauru, and no specialist child mental health facility there.

[As an aside, the Commonwealth’s concession followed a judgment by Bromberg J in the Federal Court in a well-known 2016 case involving an African woman who, while on Nauru, was raped while she was unconscious and suffering a seizure (likely caused by epilepsy).  The Minister for Immigration, Peter Dutton, refused to transfer the woman from Nauru to Australia for the purposes of having an abortion.  He was, however, willing to fly her to Papua New Guinea, where abortion was illegal and could expose her to criminal liability.

In that case, the Minister denied any duty of care to the pregnant woman.  The Federal Court decided that the Minister did owe her a duty of care which required him to “procure for her a safe and lawful abortion”.  The discharge of the Minister’s duty of care did not require the woman to be brought to Australia.  However, the duty was not discharged by arranging for the abortion in PNG.]

Does the Australian Government owe children and adolescents in immigration detention a duty of care?

In Rowena’s case, Murphy J concluded that:

“I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide.  I do not consider that the OMR [Overseas Medical Referral] process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide”.

Murphy J found that the balance of convenience favoured the injunction, and ordered the Commonwealth to “remove [Rowena] from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations”.

Rowena’s story is not unique

Similar cases involving sick and suicidal children are reported:

  • here (suicidal 10 year-old boy)
  • here (suicidal 17 year-old boy), and
  • here (adolescent girl who had cut herself, refused food and water and would soon require nasogastric feeding).

In another case, the Commonwealth sought to exclude entry of a two year-old girl with herpes encephalitis, a “serious and life-threatening neurological condition”, arguing (against the evidence of IHMS and consultant specialists) that she could be appropriately treated at the Pacific International Hospital in Papua New Guinea.

What a joy it must be to act for the Minister in these cases: seeking to use the law to deny children urgently needed medical and psychiatric treatment.

In each of these cases, it was Australian courts that provided a measure of decency, compelling the Minister to do what he would otherwise refuse to do: provide a reasonable level of care to children suffering (mostly) psychiatric trauma caused or aggravated by the circumstances of their detention offshore.

Another shared feature of these cases is that the Commonwealth has been forced to concede that there is an arguable case that they owe each of these children a duty of care.

This makes sense.  After all, these children’s daily lives are framed – if not dominated – by Australian government policy.

They depend on the Minister for Home Affairs (previously called the Minister for Immigration and Border Protection) for food, shelter, security and health care.

As Ben Doherty writes, it’s only when these cases get to court that humanity prevails.  Until that time, officials from the Department of Home Affairs delay as long as they can, apparently to please their political masters.

The “Medevac Bill”

In February 2019, against the wishes of the Morrison government, the Commonwealth Parliament passed the “Medevac Bill”.

The Act required the Secretary to identify so-called “legacy minors” (persons aged under 18 years held in a regional processing country as at 1 March 2019), and required the Minister to either approve or refuse the transfer of each legacy minor to Australia within 72 hours after being notified.

Under the legislation, the transfer of minors to Australia is [was] automatic unless the Minister reasonably suspected (on advice from ASIO) that the transfer would be prejudicial to security or that the person has a substantial criminal record (s 198D).

The Act also provides for the transfer to Australia of “relevant transitory persons” where two or more treating doctors form the opinion that the person requires medical or psychiatric treatment that cannot be provided by the regional processing country.

Again, the Minister is taken to have approved their transfer unless, within 72 hours, the Minister intervenes on the basis that [he] reasonably believes that appropriate medical or psychiatric treatment can be provided without their transfer, or that the transfer would be prejudicial to security, or that the person has a substantial criminal record (s 198E).

The Minister’s decision can be appealed to the Independent Health Advice Panel, comprised of independent and Australian government doctors (see s 199B), who can over-rule the Minister about whether the person’s transfer to Australia is necessary in order to provide them with appropriate medical or psychiatric treatment (s 198F).

The legislation also provides that family members of a legacy minor, family members of a transitory person, and other persons recommended by the treating doctor to accompany a transitory person – may be transferred to Australia, unless the Minister intervenes within 72 hours on the grounds above (ss 198C, 198G).

Where the Minister does intervene, [he] must table a statement before Parliament explaining [his] reasons (s 198J).

Thirty-one transfers to mainland Australia have occurred since the Act became effective.  Of nine transfers rejected by the Minister, two were overturned by the Independent Health Advice Panel.

What’s at stake?

The Australian Government opposed the Medevac Bill because it took medical transfers out of the hands of the Minister for Home Affairs, Peter Dutton, substituting an independent medical process.

Following the decisive victory of the Morrison government in the 2019 federal election (18 May 2019), the Home Affairs Minister has stated the Medevac Bill should be repealed in its entirety.

Labor Senator Kristina Keneally has not ruled out considering amendments, but stated that the Act “provides a way for people who are sick to get the care they need and ensures the Minister has final discretion as to who can come”.

Asylum seeker policy will continue to be controversial.

Children, however, are not responsible for the fact of their detention, and should not be conscripted into the endless – and merciless – politics of Australia’s immigration debate.

Denying children – or for that matter, adults – appropriate medical and psychiatric care is miserably cruel.

Politicians who have supported and enabled the denial of medical treatment to children do not represent the values of Australia.  You do not speak for us.

I cannot help thinking that we can learn something here from the common law method.

As every law student learns, courts – conventionally, at least – seek to apply existing principles and to develop them modestly, where necessary, but to avoid making sweeping pronouncements that extend too far beyond what is necessary to reach an appropriate decision.

Perhaps Australian politicians, too, whatever their beliefs about offshore detention, should take an incremental step towards compassion, and do the right thing in the case at hand, granting the children of asylum seekers medical and psychiatric care of the same standard they would want their own children to receive, instead of visiting the sins of the parents upon them.

Are you interested in studying health and medical law?  Sydney Law School offers a Master of Health Law and Graduate Diploma in Health Law.  See also here, and here.

 

Trump: the war on breastfeeding

The New York Times reports that US officials threatened to unleash trade sanctions and withdraw military aid from Ecuador unless it withdraw a resolution at May’s World Health Assembly calling on governments to “protect, promote and support breast-feeding”.

The article is worth reading in its entirety.

As the father of a currently breastfeeding infant, I find this kind of behaviour utterly repellent.

There are echoes of Right to Health language (respect, protect, fulfil) in the resolution which might have displeased the Americans, but the real motivator was American support for large corporate manufacturers of breast-milk substitutes.

(Like Chicago-based Abbott Laboratories.)

Ecuador backed off from the offending resolution, as did “at least a dozen other countries, most of them poor nations in Africa and Latin America”.

Then Russia stepped in, and the intimidation apparently stopped.

“We’re not trying to be a hero here”, said a Russian delegate to the World Health Assembly, “but we feel that it is wrong when a big country tries to push around some very small countries, especially on an issue that is really important for the rest of the world.”

Plenty of ironies here.  But they have a point.

According to the New York Times report, a Department of Health and Human Services spokesperson said: “The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children.  We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.”

Well gosh, that ought to sort out the doubters.

The Lancet reports that scaling up breast-feeding to near universal levels could avoid 823,000 deaths of children under 5 each year, and 20,000 maternal deaths from breast cancer.

Breastfeeding protects both mother and child, and it’s free, which is important if you’re poor.

Yet for billion dollar formula companies, the temptation to monetise the act of feeding by targeting young mothers, is just irresistible.

Read the Guardian’s investigation into Nestle’s marketing practices flogging formula to poor women in central Manila here.  Then weep.

Here is the resolution that eventually passed in the World Health Assembly, with American support.

Amongst other things, it requests the WHO Director-General to provide, upon request, “technical support to Member States to establish, review and implement national laws, policies and programmes to support infant and young child feeding”.

However, US hostility scuttled language that would have called on WHO to provide “technical support to member states seeking to halt “inappropriate promotion of foods for infants and young children.”

“Inappropriate” in this context would refer to the promotion of foods in contravention of the International Code of Conduct of Breast-milk Substitutes.

The Code prohibits the advertising of infant formula and other breast-milk substitutes to the general public, to pregnant women and mothers, and to health workers who are concerned with infant and maternal nutrition.  It also prohibits the giving of samples and other incentives for purchase. Governments are urged to implement the Code through national legislation, regulations or other suitable measures.

In addition, the Code states that infant formula should contain a clear statement of the superiority of breastfeeding, and a statement that the product should only be used following advice from a health worker. The container and labels should not contain pictures of infants, or include pictures or text that “may idealize the use of infant formula”.

Appropriately, the resolution does urge Member States (of the World Health Organisation) to strengthen national initiatives to implement the Code.

However, when you put it all together, it appears the Trump administration does not want sovereign countries receiving technical support from WHO about how best to frame their laws and policies to prevent predatory marketing practices that breach the Code.

It’s the Trump administration’s war on breastfeeding women.

Click here for information about the Australian Breastfeeding Association.

ANNOUNCEMENT: Sydney Law School and the United States Studies Centre at the University of Sydney are co-hosting an evening seminar entitled “Public health law and health leadership in the United States: What can Australia learn?” on 19 July 2018, 6.00-7.30pmClick here for the brochure and further details.  A separate post will follow about this event.

If you’re interested to learn more about law and non-communicable diseases, Sydney Law School is offering a Masters unit, “Law, Business & Healthy Lifestyles” in the coming semester.  Click here for more information.

Advancing the Right to Health: the Vital Role of Law

N0032287 Group portrait of seven boys, Ethiopia

More than 20 years ago, Chris Reynolds, an Australian pioneer in our understanding of public health law, wrote that: “law is a powerful tool, as potent as any of the medical technologies available to treat disease”, and yet “our understanding of the potential of [public health law]…to help…citizens to lead longer and healthier lives, is not well developed”. (Reynolds, “The Promise of Public Health Law” (1994) 1 JLM 212).

A new report entitled Advancing the Right to Health: the Vital Role of Law, published last week by the World Health Organisation, illustrates just how central law is to our health and wellbeing.

The full report, and each of its chapters, can be downloaded (free of charge) here.

brochure_final_print-high-resolution_page_1

Law a powerful tool for improving public health…everywhere

Countries around the world are using law and legislation across a broad range of areas to protect the health of their populations.

These areas include communicable and contagious diseases, and public health emergencies, maternal and child health, sanitation, water and vector control, the prevention of non-communicable diseases and their risk factors (such as tobacco, alcohol and obesity), prevention of violence and injuries, not to mention essential medicines and universal health coverage, and the regulatory challenges of strengthening health systems.

In each of these areas countries have a great deal to learn from each other.

One benefit of taking a global perspective on public health law is that you get a better sense how the field is buzzing with innovation.

For every jurisdiction where political will is lacking, there’s another that is trying out the new, whether at national, state, or local/city level.

Take legal responses to dietary risks as an example:

Even when new legislative proposals are adopted or accepted, they nevertheless illustrate new ways of addressing health risks, and possible future directions.

One example is the Sugar-Sweetened Beverages Safety Warning Bill introduced for three consecutive years into California’s legislature, which would have required sugar-sweetened beverages and vending machines to carry the warning: STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.”

This proposal has not yet been successful in California.  However, San Francisco has passed a local ordinance requiring the same warning, although it is now subject to litigation.

N0032285 Group portrait of seven boys, Ethiopia

Sydney Health Law…partnering with WHO, IDLO and the O’Neill Institute

Advancing the right to health is the result of a collaboration between Sydney Law School’s health law program, the O’Neill Institute for National and Global Health Law at Georgetown University, the International Development Law Organisation (IDLO) and the World Health Organisation.

The key message from this report is that there is enormous, untapped potential for governments to use law more effectively to reduce health risks and to make communities healthier and more resilient.

The report provides guidance about issues and requirements to be addressed during the process of developing public health laws, with case studies drawn from countries around the world to illustrate effective law reform practices and critical features of effective public health legislation.

Advancing the Right to Health: The Vital Role of Law was launched at the Graduate Institute in Geneva by Dr Marie-Paule Kieny, Assistant Director-General, Health Systems and Innovation, WHO.  WHO’s feature on the report is available here.

For comments made by Mr David Patterson, Senior Legal Expert – Health, International Development Law Organisation, see here.

For comments made at the launch by Professor Roger Magnusson, principal author of the report, on the connections between public health law and universal health coverage, see the following link: roger-magnusson-comments-at-launch-of-report-advancing-the-right-to-health-16-jan-2017

Are you interested in studying health law?  Sydney Law School’s Graduate Diploma in Health Law, and Master of Health Law are open to both lawyers and non-lawyers.  For further information, click here.  For information on Sydney Health Law, the Centre for Health Law at Sydney Law School, click here.

N0032286 Group portrait of seven boys, Ethiopia
N0032286 Group portrait of seven boys, Ethiopia

It’s time for the government to stop shooting the messenger

The constant attacks on Professor Gillian Triggs represent attacks on the human rights and civil liberties that Australians value. Since 1986, the Human Rights Commission has been the watchdog for human rights for Australia.  The President and her Commissioners are necessarily independent of government and have a duty to fearlessly advocate for human rights protections and to criticise laws and policies that undermine the rights and freedoms Australians enjoy.

The current barrage of orchestrated attacks on Triggs is supposedly on the basis that her comments are politically motivated. Of course they are. Human rights lie at the core of our political system: they require government to protect their population and provide a political environment in which they can flourish. If human rights weren’t political they would make no sense at all.  The problem for the government is that it wants to ignore human rights yet remain immune from criticism.

The real criticism of Triggs is that she has been biased and is playing party politics. This is an absolute furphy. Party politics is about contested concepts but no one can contest the evidence of abuse of human rights that were raised in the Commission’s report. The timing of the report is irrelevant. What we need is a response from government that explains what has been happening and what will be done to protect the vulnerable children and adults that we are detaining. Instead the government’s response have been to shoot the messenger, call for her resignation and criminalise the release of further information about the detention of asylum seekers.

The government’s treatment of children in detention deserves particular censure, and in time may appropriately become the subject of a Royal Commission.  Children in detention are vulnerable and voiceless.  As fathers we are appalled by the failure of the government to provide minimum conditions for their safety and welfare.  Yet because the abuse is happening behind barricades, under secrecy, and in the name of national security, accountability is lacking.  If our politicians lack the parental instincts and moral convictions to take steps to protect children from harm, then we call on parents everywhere to hold them to account.  This goes beyond political differences.

The true strength of conservatism is its adherence and protection of our basic political institutions, particularly civil liberties, ministerial responsible government and the rule of law. Another important principle is that the Attorney General, as first law officer, should protect the officers that make that legal system work (like the President of the Human Rights Commission). A further traditional convention is for the Speaker of the House to stay out of political debate.

The government has turned its back on all of these bedrock principles of Australian politics. Minister Dutton’s refusal to engage with the report in any meaningful sense mocks the principle of ministerial responsibility. The Attorney General’s treatment of Triggs in and outside of parliament shows a complete dereliction of his duty. Speaker Bronwyn Bishop‘s criticism of Triggs as being biased on Q&A was bitterly ironic given her record breaking performance in Parliament. Given its complete abandonment of traditional values, this government no longer can call itself conservative.

The only reasonable criticism of Gillian Triggs that can be made is that she is doing her job too well. Moreover, she is the only one actually doing her job. Rather than question her position, we need to ask how much of the traditional architecture of responsible democracy this government is prepared to trash to get its own way. It is time for the government to return to the traditional values of Australian government before the damage done to the polity becomes irreversible.

 

Cameron is Professor of Health, Law and Ethics at Sydney Law School

Roger is Professor of Health Law and Governance at Sydney Law School

Ian Kerridge is an Associate Professor at the Centre for Values, Ethics and the Law in Medicine