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Birchall, Ebony --- "Regulation of healthcare practitioners in immigration detention centres" [2015] PrecedentAULA 26; (2015) 127 Precedent 48


REGULATION OF HEALTHCARE PRACTITIONERS IN IMIGRATION DETENTION CENTRES

By Ebony Birchall

In 1992, mandatory immigration detention was introduced for asylum seekers arriving in Australia, a policy which has continued since.[1] The term ‘asylum seekers’ refers to those who leave their national country to seek refuge but who have not yet had their status as refugees confirmed.[2]

Since the introduction of mandatory immigration detention in Australia, it has been recognised by a number of international bodies and various organisations, including the United Nations High Commissioner for Refugees, that Australia’s immigration policies harm immigration detainees.[3]

A letter written in November 2013 by 15 doctors who worked in the immigration centre on Christmas Island raised concerns for the welfare of detainees and spoke out on the position of doctors working in immigration centres.[4] The letter stated that decisions made by those in control of the immigration centres, as well as the poor conditions they maintain, place healthcare workers at risk of civil liability and/or professional conduct proceedings.

This article explores the medical law framework governing health practitioners working in immigration centres and the extent to which these practitioners may be exposed to civil liability or professional conduct proceedings.

THE LETTER OF CONCERN TO IHMS

In November 2013, Dr John-Paul Sanggaran and 14 other doctors who had worked in the immigration centre on Christmas Island wrote a detailed 92-page letter to International Health and Medical Services (IHMS) recording their concerns about the standards of care provided to detainees in the centre. IHMS is the company contracted by the Australian government to manage the provision of healthcare to detainees in the centre.

The letter stated that increased medico-legal risk was ‘a fact that goes uncontested by management at staff meetings and yet has not been addressed. Management states that the Department of Immigration are accepting all responsibility.’ The doctors added that they were concerned because no one had the power to absolve health practitioners of their duty of care to their patients.[5]

The letter also raised the doctors’ concerns that practices undertaken at the direction of IHMS could expose them to professional conduct proceedings. Dr Sanggaran, the main author of the letter, was subsequently asked what he would tell doctors considering employment in an immigration centre. He cautioned practitioners, advising them to consider whether risking their registration as health practitioners was worth the role.[6] Dr Sanggaran also commented that he had been encouraged by senior IHMS management to keep notes during his employment, as he was warned that there is likely to be an inquiry into the treatment of detainees eventually, and his notes may be useful to protect himself during such an inquiry.[7]

The letter contained a number of detailed case studies, documenting what the doctors described as routine failures in standards of care. The examples included:

‘[U]nsafe and inadequate antenatal care; inadequate medical care for children; the risk of life-threatening deterioration in patients waiting to be flown to hospitals on the Australian mainland; shortages of facilities, equipment and medications; unsafe prescribing practices; poor treatment of diabetes; and inadequate programs to prevent the spread of infectious diseases among detainees.’[8]

Sources such as the letter to IHMS are useful in providing insight into the healthcare received in immigration centres as the information available to the media and general public about conditions inside detention centres, and the healthcare provided to detainees, is limited. The government publication, Health Care for Asylum Seekers on Nauru and Manus Island, admits that a lack of rigorous reporting and accountability measures in these centres make it difficult to assess the quality of healthcare provided to detainees, particularly in off-shore centres.[9]

The concerns raised in the letter are consistent with other recent sources, including:

1. The Australian Human Rights Commission’s report, The Forgotten Children: National Inquiry into Children in Immigration Detention, which includes reporting on antenatal care provided to pregnant women on Christmas Island and Nauru.[10]

2. The Australian Council of Heads of Schools of Social Work’s independent research project,‘The People’s Inquiry into Detention’.[11]

3. Reporting of individual cases such as the death of 24-year-old Iranian asylum seeker, Hamid Kehazaei, in 2014.[12]

CIVIL LIABILITY EXPOSURE

Do Australian civil liability laws and Australian healthcare standards apply to immigration centres?

Immigration centres located within the jurisdiction of Australia are governed by Australian law and therefore civil liability laws will apply. Each state has slightly different legislation; however, the principles are broadly similar.[13] Christmas Island falls into the jurisdiction of Western Australia.

The Australian government’s ‘Detention Health Framework’ sets a standard of care that ‘[a]ll people in detention are provided access to healthcare at a standard generally comparable to the healthcare available to the Australian community’.[14]

However, some uncertainty surrounds the laws and standards of healthcare to be applied in regional processing centres. These centres, located on Manus Island, Papua New Guinea, and in Nauru, are outside of Australian territory. However, this does not necessarily mean that the Australian government does not owe a duty of care to detainees in these regional processing centres.[15] This has not yet been tested by Australian courts.

In regards to the standard of care owed to detainees on Manus Island and Nauru, the government publication, Healthcare for asylum seekers on Nauru and Manus Island, states that the government intends the standard of healthcare provided in regional processing centres to ‘be broadly comparable to what is available in Australia and the best available in the circumstances’.[16]

A 2013 Amnesty International report focusing on the Manus Island immigration centre reported that a number of medical staff had raised concerns that applicable medical laws and standards at the centre were unclear. The medical staff told Amnesty International that they had no knowledge of local laws and requirements.[17] The pending outcome of a class action on behalf of detainees on Manus Island, recently commenced in the Supreme Court of Victoria, may eventually clarify the health standards applicable in the regional processing centres.[18]

How might civil liability arise in immigration centres?

Under Australia’s civil liability laws, healthcare providers owe a duty of care to their patients (and in some circumstances, to relatives or dependants of their patients). If providers are found to have breached their duty of care and as a result caused injury, illness or loss, they can be sued in negligence.[19]

The letter to IHMS contained many detailed examples of medical practices which could result in civil liability exposure. As an example, the letter reported that malaria prophylaxis had been blanket-prescribed to hundreds of patients, without the doctor ever seeing any individual patient. The authors explain that this is a dangerous practice, as such medication may be contraindicated for some patients.[20]

Similarly, findings from the ‘People’s Inquiry into Detention’ research project[21] suggested that health practitioners are effectively limited in the care they are able to provide detainees by directions coming from centre management. For example, ‘Simone’ reported that her colleague ‘got hauled over the coals’ after she ordered an ultrasound for a detainee who had suspected kidney stones.[22] ‘Simone’ recalled management of the facility asking her colleague why she had ordered so many ultrasounds. Her colleague responded, ‘I like to treat my patients all the same, regardless of where they’re coming from.’[23]

Issues of consent are also of particular relevance in the detention environment. Under Australian law, it is a basic right for a person to make their own decisions regarding their healthcare, assuming they have capacity to make such decisions. If a healthcare provider fails to obtain a patient’s consent to a medical procedure, they may be liable in an action for trespass to the patient. More serious violations of breaches of consent may also be tried under criminal law.[24]

There are reports of health practitioners working in immigration centres imposing treatment without the patient’s consent, such as this account from a former detainee:

‘I continued a hunger strike until they called a doctor to the camp. They tied my hands and feet to the legs of the bed and through the tube that was put in my nose into my tummy, they tried to feed me and break my strike. They did whatever they wanted to. Even when the doctor was trying to run the tube through my nostril I told him that if any problem comes up, then you will be responsible and he told me we’ve got permission through DIMIA [now Department of Immigration and Border Protection] to do this.’[25]

It has been suggested that health practitioners have become ‘an arm of the prison establishment’,[26] administering chemical restraints (sedatives) to detainees. A former detention officer provided this account:

‘We get this guy out of bed early in the morning. We pull the sheet off him. He's in his pyjamas. He clings on to the bedstead. My job is to unwind his fingers, struggling, shouting he won't go. There are nurses. First time I'd seen a chemical restraint used. They must have broken about three needles on him. I'm thinking there must be a better way, this bloke's not an animal...’[27]

It is reported that between 2000 and 2011 there were 111 claims in negligence arising from breaches of duties of care in immigration centres.[28] Two separate class actions were filed in 2014 against the government and contracted management companies on behalf of asylum seekers detained in the immigration centres at Christmas Island and Manus Island.[29] There are rumours of a similar class action, on behalf of detainees at Nauru, under investigation as well.

Protection from civil liability under Regulation 5.35 of the Migration Regulations 1994 (Cth)

As explained above, violating the right of a person to consent or to refuse medical treatment can result in exposure to a claim in battery, or trespass to the person. The government has addressed this exposure by introducing Regulation 5.35 of the Migration Regulations 1994 (Cth) (Regulation 5.35); this allows treatment to be administered to a detainee, by a health practitioner, without the detainee’s consent, if it is considered that without treatment there will be a serious risk to the detainee’s health.

Section 4 of the Regulation provides that medical treatment given under the Regulation is taken ‘for all purposes’ to have been consented to. This provision is likely to provide protection against a civil liability claim arising from medical treatment imposed without consent which has been authorised under the Regulation.

Who will be held liable for civil claims?

The letter to IHMS stated that practitioners are concerned about their personal medico-legal risk, which raises the question of whether an individual practitioner can be found liable for civil liability arising in an immigration centre.

The courts have held that the government holds a non-delegable duty to detainees in immigration detention centres in Australia.[30] This means that the government’s duty is of such a nature that its performance cannot be delegated to someone else on the basis that delegation to a competent person/company is sufficient compliance with the duty.[31] So the Australian government is likely to be held at least partly responsible for the medical treatment received by all immigration detainees, although other parties may be found to hold some liability as well, which will depend on individual circumstances. For example, the chains of responsibility have been ‘muddied’ by the government’s contracting arrangements with companies like IMHS, which assert control over the management of immigration centres; such management companies may be found to hold some liability in civil claims.

The extent to which the government’s non-delegable duty will apply in the regional processing centres, which are overseen by and paid for by the Australian government, has not yet been tested in court. Subject to these findings, the Australian government could be held to be at least partly responsible for the medical treatment received by all immigration detainees.

It is also theoretically possible that an individual practitioner could be named as a defendant together with the government and/or a contracted management company and found to be held at least partly responsible for negligence.[32] However, in practice this is unlikely to occur, as a plaintiff is more likely to sue the Australian government given that it is already established that the government owes a duty of care to detainees in Australian immigration centres. Indeed, to date, there does not appear to have been any reported cases where a health practitioner working in an immigration centre has been found even partially liable in a claim for negligence. The government, of course, will not be held vicariously liable for a practitioner’s actions if the practitioner has acted outside the scope of their employment.[33]

All health practitioners registered with the Australian Health Practitioner Regulation Agency (APHRA) require appropriate professional indemnity insurance as part of their registration; any civil liability arising for an individual practitioner is likely to be covered by the practitioner’s indemnity insurance.

PROFESSIONAL CONDUCT EXPOSURE

The conduct of health practitioners in Australia is regulated by AHPRA, which supports the 14 National Boards relating to specific health professions. Practitioners are regulated under the Health Practitioner Regulation National Law Act 2009 (National Law) which has been adopted in each state and territory. The National Law provides a framework for regulating health practitioners’ health, performance and conduct. The performance of practitioners is assessed with reference to the professional standards or codes of conduct set by the relevant national boards.

The actions of Australian health practitioners registered with APHRA, while working in Australian detention centres, could potentially be investigated by the appropriate professional authority in each state. But as stated above, there is some uncertainty surrounding what laws and standards apply in the regional processing centres.

A number of the professional medical bodies have issued statements addressing the standard of healthcare which should be provided to detainees. The Australian Medical Association produced its position statement in 2011, titled Health Care of Asylum Seekers and Refugees. The statement is six pages long and provides a number of obligations for practitioners; for example, at point 10:

‘Medical practitioners should:

1. Act in the best interests of the patient;

2. Not authorise or approve any physical punishment, nor participate in any form of inhumane treatment, nor be called upon to do so by authorities; and

3. Provide medical treatment in a culturally and linguistically appropriate manner.’[34]

The position statement also addresses detainees on hunger strike specifically, stating at point 37:

‘Where an individual voluntarily refuses nourishment and is considered by a medical practitioner to be capable of forming an unimpaired and rational judgement concerning the consequences of such a voluntary refusal of nourishment, the practitioner should be free to refuse to co-operate in artificial feeding.’[35]

The Medical Board of Australia’s Code of Conduct at 3.5.2 states that good medical practice is:

‘obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency), or before involving patients in teaching or research’.[36]

The recent Australian Human Rights Commission Forgotten Children report stated that at least two women had been transferred from Christmas Island to the mainland to give birth, without their partner or an interpreter. One of these women reported that she ‘could not understand why she was having a caesarean section’.[37] This report is consistent with the ‘People’s Inquiry in Detention’ report, which suggests that a lack of resources is impairing practitioners’ ability to abide by their professional obligations.

The reports in the letter to IHMS of routine failures of duties of care, and the accounts quoted above of practitioners imposing treatment on detainees without consent, could result in the practitioners involved being subject to investigation by AHPRA. As yet, there are no reported examples of practitioners being investigated for breaches of their professional obligations while employed in a detention centre. However, the stories emerging of health practitioners working in detention centres who are under directions of their employer to undertake tasks that are contrary to their professional obligations are concerning.

It is not surprising, then, that medical professionals working in detention centres are calling for a boycott. An article published in the Medical Journal of Australia in August 2014 states:

‘The potential role of a professional boycott to motivate change should be openly discussed... We call on the colleges and the AMA to lobby for effective change, so that asylum seekers receive appropriate care and those delivering it are not professionally compromised.’[38]

CONCLUSION

The letter of concern to IHMS provides a perspective from health practitioners employed in immigration centres which is consistent with the growing number of sources containing reports of healthcare in immigration centres. Dr Sanggaran, the main author of the letter, reported in May 2014 that despite over 18,000 words of detailed concerns, there has been no adequate response. He stated that the authors received a one-page letter from IHMS in response and that he was invited to watch a demo version of their new IT system. [39]

The authors’ concerns about increased medico-legal risk and breaches of professional obligations, arising from medical practices that they are under directions to perform, need to be properly addressed. As Australian Lawyers Alliance representatives, Dr Andrew Morrison SC and Mr Greg Barns, have stated, it is highly likely that duties of care are being breached in immigration centres on a daily basis.[40]

Ebony Birchall is a lawyer at Slater and Gordon Lawyers, Sydney. EMAIL ebony.birchall@slatergordon.com.au.


[1] For a comprehensive background, see Refugee Council of Australia, Timeline of major events in the history of Australia’s Refugee and Humanitarian Program (February 2014).

[2] Australia is a signatory to the 1951 Convention Relating to the Status of Refugees and the 1967 amendment entitled the Protocol Relating to Refugees, which are the key international law documents providing such definitions as well as outlining the rights of asylum seekers and the responsibilities of states.

[3] Claire O’Connor SC, ‘Cruelty in our name: Children in immigration detention’ (2014) 124 Precedent, pp4-9.

[4] Sanggaran et al, ‘Letter to IHMS’ (November 2013), The Guardian, <http://www.theguardian.com/world/interactive/2014/jan/13/christmas-island-doctors-letter-of-concern-in-full> .

[5] Ibid.

[6] Kate Aubusson, ‘Christmas Island doctor breaks silence’, The Australian Doctor, 28 May 2014, http://www.australiandoctor.com.au/news/latest-news/christmas-island-doctor-breaks-silence, accessed on 19 March 2015.

[7] Ibid.

[8] Marr, ‘Doctors reveal ‘harmful’ standards of medical care for asylum seekers’ (20 December 2013) The Guardian, http://www.theguardian.com/world/2013/dec/19/revealed-doctors-outrage-over-unsafe-refugee-patients, accessed 19 March 2015.

[9] Parliamentary Library, Background Note, ‘Healthcare for asylum seekers on Nauru and Manus Island’, (28 June 2013) at 21 http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumSeekersHealthCare, accessed 19 March 2015.

[10] Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014), https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/forgotten-children-national-inquiry-children, accessed 19 March 2015.

[11] Australian Council of Heads of Schools of Social Work, ‘We’ve boundless plains to share: The first report of the People’s Inquiry into Detention’ (2006) http://www.safecom.org.au/pdfs/peoples-inquiry-first-report.pdf, accessed on 19 March 2015.

[12] Rollins, Asylum seeker death raises serious concerns about care (23 December 2014) AMA, https://ama.com.au/ausmed/asylum-seeker-death-raises-serious-concerns-about-care, accessed 19 March 2015.

[13] See Civil Liability Act 2002 (NSW); Wrongs Act 1958 (Vic); Civil Liability Act 2003 (QLD); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (WA); Civil Liability Act 2002 (Tas); Civil Law (Wrongs) Act 2002 (ACT); Personal Injuries (Liabilities and Damages) Act 2003 (NT).

[14] Department of Immigration and Citizenship, ‘Detention Health Framework’ (2007), http://www.immi.gov.au/managing-australias-borders/detention/services/detention-health-framework.pdf, accessed 19 March 2015.

[15] See s3.1 of Australian Human Rights Commission, ‘Inquiry into the incident at the Manus Island Detention Centre from 16 February to 18 February 2014’ (16 May 2014) as well as further discussions on this topic at Fact Check, ‘Is Australia responsible for asylum seekers detained on Manus Island?’ (28 February 2014) ABC News.

[16] Parliamentary Library, Background Note, ‘Healthcare for asylum seekers on Nauru and Manus Island, (28 June 2013) http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/2012-2013/AsylumSeekersHealthCare, accessed 19 March 2015. at p21.

[17] Amnesty International Australia, This Is Breaking People (2013) http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf, p59.

[18] Whyte and O’Brien, ‘Asylum seekers sue the government for negligence’ (20 December 2014) Sydney Morning Herald, http://www.smh.com.au/federal-politics/political-news/asylum-seekers-sue-the-government-for-negligence-20141220-12az8a.html, accessed on 19 March 2015.

[19] See note 13 above.

[20] Letter to IHMS, see note 4 above, p28.

[21] Briskman, Zion & Loff, ‘Challenge and Collusion: Health Professionals and Immigration Detention in Australia’ (2010) 14(7) International Journal of Human Rights 1092.

[22] Briskman, Zion & Loff, ‘Care or Collusion in Asylum Seeker Detention’ (2012) 6(1) Ethics and Social Welfare 37 at 44.

[23] Ibid.

[24] See, for example, discussion in Reeves v R [2013] NSWCCA 34.

[25] Briskman, Zion & Loff, above n21 at 1098.

[26] Zion, Briskman & Loff, ‘Nursing in asylum seeker detention in Australia: care, rights and witnessing’ (2009) 35(9) Journal of Medical Ethics 546 at 548.

[27] Briskman, Zion & Loff, above n21 at 1099.

[28] Needham, ‘Compensation payouts to asylum seekers reach $23 million’ (10 November 2011) Sydney Morning Herald, http://www.smh.com.au/national/compensation-payouts-to-asylum-seekers-reach-23m-20111109-1n7i0.html, accessed 19 March 2015.

[29] See AS v Minister for Immigration and Border Protection [2014] VSC 593 for an interlocutory decision relating to the class action on behalf of detainees of Christmas Island. In regards to the Manus Island class action, see Whyte and O’Brien, ‘Asylum seekers sue the government for negligence’ (20 December 2014) Sydney Morning Herald, http://www.smh.com.au/federal-politics/political-news/asylum-seekers-sue-the-government-for-negligence-20141220-12az8a.html, accessed on 19 March 2015.

[30] S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] 143 FCA 549, 199.

[31] Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672 at 14.

[32] In some Australian states and territories, legislation could protect the practitioner from civil exposure. For example, in NSW, s3 of the Employees Liability Act 1991 (NSW) provides that the employer is liable to indemnify the employee in respect of liability incurred by the employee for an action in tort.

[33] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733-4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535-6 [40]-[41] (Gleeson CJ), 614 [308] (Kirby J).

[34] Australian Medical Association, Health Care of Asylum Seekers and Refugees (2011).

[35] Ibid.

[36] Medical Board of Australia, Good medical practice: a code of conduct for doctors in Australia (2014) http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx accessed at 19 March 2015.

[37] Australian Human Rights Commission, above n10, p96.

[38] Sanggaran, Ferguson and Haire, ‘Ethical challenges for doctors working in immigration detention’, (2014) 201(7) MJA 377 https://www.mja.com.au/journal/2014/201/7/ethical-challenges-doctors-working-immigration-detention?0=ip_login_no_cache%3D7a59375e644b504e19a4efb3cb435aaf, accessed 19 March 2015.

[39] Oliver Laughland, ‘Doctors' litany of medical neglect of asylum seekers still “largely ignored”’ (27 May 2014_ The Guardian <http://www.theguardian.com/world/2014/may/27/doctors-litany-of-medical-neglect-of-asylum-seekers-still-largely-ignored> , accessed 19 March 2015.

[40] Morrison and Barns, ‘Manus Island negligence may have financial costs’ (25 March 2014) ABC, The Drum <http://www.abc.net.au/news/2014-03-25/morrison-and-barns-manus-negligence-may-have-financial-costs/5341926> , accessed 19 March 2015.


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