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.

 

Muzzling health and welfare professionals in the name of national security: Australia’s Border Force Act 2015

Posted by Roger Magnusson and Cameron Stewart

This is the view from the top of Table Mountain in Cape Town, South Africa.  Take it in.  It helps to have a sense of perspective.

The view from Table Mountain, Cape Town (1)
The view from Table Mountain, Cape Town (1)

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The view from  Table Mountain, Cape Town (2)
The view from Table Mountain, Cape Town (2)

It’s now more than 21 years since apartheid ended.  These days, few people would criticise anyone for having broken those racially motivated laws that were part of South Africa’s statute book during the period of white minority rule.  But why do people feel that way?

For some, it may be the patent absurdity of discriminating against entire classes of people based on the colour of their skin, or whether or not they passed the “pencil test” .

For others, it may be the fact that laws constructing systematic racial discrimination were inconsistent with a higher moral law, or with international human rights instruments that give protection from discrimination on grounds such as race, colour, sex, language, religion, and national or social origin .

With apartheid in mind, let’s return to Australia.  The Box below describes some key features of the Australian Border Force Act 2015 (Cth).  The application of this Act to health and welfare professionals caring for children in immigration detention has attracted a great deal of attention.

Rightly so.

As law professors, health law specialists, and parents, we know we are not alone in believing that whatever sense of obligation we feel to obey the law is eclipsed by the moral imperative to protect children from harm.  Some of the worst abuses of children, causing lifelong harm and distress, are the result of institutional indifference to instances of abuse.  If you think you care about children, or if you have any children of your own, then consider how the Australian Border Force Act will impact on them.

Table

The Act creates the Australian Border Force, integrating immigration and customs functions into a single entity within the Department of Immigration and Border Protection.

Amongst other things, the Act appears designed to improve the control of information, to prevent leaks, and to reduce unwelcome media scrutiny of the operation of immigration detention facilities arising from public disclosures by Immigration and Border Protection workers.

The Act creates an offence, carrying a penalty of imprisonment for 2 years, if an “entrusted person” makes a record of, or discloses “protected information” (s. 42).

An “Immigration and Border Protection Worker” includes government employees, as well as consultants – doctors, nurses, social workers – engaged by the Department to work inside immigration detention centres.  “Protected information” means “means information that was obtained by a person in the person’s capacity as an entrusted person”.

The Act authorizes the Secretary of the Department to authorize an entrusted person (let’s say a doctor) to disclose protected information (let’s say allegations of sexual assault against a child in immigration detention) to the Department, to police, or to any other authorized body or person.  However, the Secretary may attach written conditions to the permission to make such disclosures (s. 44).

The Act does authorize disclosure of protected information to “prevent or lessen a serious threat to the life or health of an individual” (s. 48).  However, this would not extend to disclosures to the media relating to the systemic conditions in which children are living in detention, or the impact of incarceration on their mental and physical health and wellbeing.

In summary, the Act appears designed to muzzle health and welfare professionals from reporting any information they obtain in the course of their duties (extending, for example, to allegations of sexual assault against children in immigration detention), except with the permission of a bureaucrat.

The culture operating within the Department of Immigration and Border Protection is likely to mean that Secretarial permission will rarely, if ever, granted.

The likely result of the Act is that it will become more difficult for the government’s accountability for the health, welfare and protection of children in immigration detention to be tested in the political arena.

Whatever you think about the merits of mandatory detention of the children of asylum seekers, the constraints on health and welfare professionals appear to strike at the heart of freedom of speech.  The Act might well infringe the implied constitutional freedom of political communication that all Australians enjoy.  No doubt this will be tested soon.

The Australian Border Force Act does not mention the Public Interest Disclosure Act 2013 , but if – as the government asserts – the former Act is subject to the latter , persons speaking out would need to navigate a thicket of statutory conditions in order to escape prosecution.  The intent of the Australian Border Force Act is to change the culture within which services are delivered to persons in immigration detention: that much seems clear.

It is not surprising that health and welfare professionals have pointed to the contrast between the Australian Border Force Act and the protections that apply to Australian children outside immigration detention.

In NSW, the Children and Young Persons Care and Protection Act 1998 imposes mandatory reporting on health and welfare professionals when they have reasonable grounds to suspect a child is being abused or is at risk of significant harm .  On the other hand, unless the Secretary gives their permission, doctors and welfare workers could be committing a criminal offence if they reveal anything at all about the conditions in which children in immigration detention are living.

Writing in the Guardian, over 40 “entrusted persons” have called for civil disobedience:

“We have advocated, and will continue to advocate, for the health of those for whom we have a duty of care, despite the threats of imprisonment, because standing by and watching sub-standard and harmful care, child abuse and gross violations of human rights is not ethically justifiable”.

As law professors employed by one of Australia’s oldest law schools, we live and breathe law, and care about the rule of law.  Frankly, however, we don’t care about it enough to stand by while government tries to muzzle dedicated professionals working in difficult conditions to protect the safety and dignity of children.

Parliament makes the rules.  It decides what is lawful and unlawful.  But when the moral compass goes astray and laws are designed to ensure that the public never even gets to hear about the harm that children are suffering in immigration detention, then that is a step too far.

The President of Australia’s Human Rights Commission, Professor Gillian Triggs, points out that Australia is alone in the world in indefinitely locking up the children of asylum seekers. The Commission’s Forgotten Children report found that this practice violates the right to health that children enjoy under the Convention on the Rights of the Child.  It also ignores the substantial body of evidence of the harm that immigration detention is causing to children.

“Entrusted persons” face difficult choices in the months ahead.  In deciding how to reconcile their professional ethics, moral intuitions and legal obligations, they can at least stand assured that there can be no moral obligation to stand by and do nothing while children are being harmed.

The Australian Border Force Act 2015 needs a radical overhaul.  Otherwise it belongs in the bin.  Both parties ought to think again.

Take another look at the view from Table Mountain.  In the distance you can see Robben Island, where Nelson Mandela spent 18 of his 27 years of imprisonment.

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