Birchall, Ebony; Lewis, Hannah; Majewski, Laura --- "The cost of immigration detention" [2017] PrecedentAULA 3; (2017) 138 Precedent 4

---

THE COST OF IMMIGRATION DETENTION

By Ebony Birchall, Hannah Lewis and Laura Majewski

It is widely accepted that immigration detention increases the likelihood of psychiatric injury.^[1] Despite this, successive Australian governments since 1992 have maintained a policy of mandatory immigration detention for asylum seekers who arrive by boat. In this article, we explore what is known about the psychiatric consequences of immigration detention as well as the courts’ response to psychiatric injury arising during immigration detention. Lastly, we will examine the provision of psychiatric care in detention facilities. These three topics will be analysed with the intention of highlighting some of the costs involved in Australia’s continued policy of mandatory immigration detention.

THE PSYCHIATRIC COST OF IMMIGRATION DETENTION

For over a decade, mental health experts have reported that detention increases the likelihood of adults and children suffering psychiatric injury. In 2004, a study published in the Australian and New Zealand Journal of Public Health by Steel and colleagues reported that they had assessed ten families held in Australian immigration detention over a two year period.^[2] The 14 parents and 20 children all had at least one current psychiatric disorder. The adults showed a threefold, and the children a tenfold, increase in psychiatric disorder post-detention. The 2014 Australian Human Rights Commission Inquiry found that 34 per cent of children in closed detention had moderately severe to very severe mental health problems.^[3] Less than 2 per cent of children in the Australian population have problems at this level.

The likelihood of mental harm occurring increases as time in detention increases. In 2010, Green and Eager analysed the health records of 720 people in detention centres across Australia and offshore detention centres.^[4] People detained for more than 24 months were 3.6 times more likely to be diagnosed with a new mental illness than those detained for less than three months. As at 30 September 2016, over one-quarter of people currently detained in Australia and on Christmas Island have been in detention for over 24 months.^[5] This is likely to indicate a very high prevalence of mental illness in these detained populations.

The mental harms caused by detention persist after detention ends. A 2006 study by Steel and colleagues found that prolonged detention leads to an increased risk of ongoing depression, post-traumatic stress disorder (PTSD) and mental health-related disability.^[6] This effect persists for an average of three years after release from detention.

Multiple aspects of the detention environment contribute to the development of mental harm. These aspects include exposure to traumatic events, overcrowded facilities, and being surrounded by others who are also experiencing mental distress.^[7] Detention environments are dangerous places: between January 2013 and March 2014, there were 57 serious assaults, 233 assaults involving children and 33 reported sexual assaults (most involving children) in Australian detention centres.^[8] In the 2004 study by Steel and colleagues, all the adults and most of the children reported that they were regularly distressed by intrusive memories about detention experiences.^[9]

The high rates of self-harm and suicidal behaviour in detention centres indicate the prevalence of mental distress in detained populations. Dudley estimated that the rates of suicidal behaviours in men and women in Australian immigration detention centres were 41 and 26 times the national average, respectively.^[10] These behaviours are not unique to adults. Between January 2013 and March 2014, 128 children in Australian detention centres harmed themselves and 171 threatened self-harm.^[11]

An estimated 28 deaths have occurred in on-and offshore immigration detention centres in the past six years, since August 2010.^[12] While there is uncertainty regarding the exact numbers of suicides, it has been reported that six of the 12 deaths that occurred in immigration detention centres between 1 July 2010 and 20 June 2013 were suicides.^[13]

COMPENSATION FOR PSYCHIATRIC INJURY

Psychiatric injury arising in immigration detention is compensable where a claim for negligence, intentional tort or unlawful imprisonment can be established. Between 2000 and 2014 (inclusive), a total of $6.9 million was paid in compensation by the Commonwealth for breaches of duty of care or breaches of statutory duty within immigration detention. A total of $21 million was paid in compensation for unlawful detention.^[14] These figures do not incorporate the legal costs incurred by the Commonwealth in responding to claims for compensation.

It is well-established that the Commonwealth owes a duty of care to detainees in onshore detention centres. The issue of duty of care in relation to offshore detention centres is the subject of current litigation^[15] while a duty has already been found in some circumstances.^[16] Key cases which establish that the Commonwealth owes a duty of care in relation to onshore detention include:

• Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36: the High Court confirmed that detainees do not stand outside the protection of civil or criminal law and are therefore owed a duty of care;

• MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694: the Commonwealth accepted its duty of care to immigration detainees included the provision of reasonable psychiatric care;

• SBEG v Commonwealth of Australia [2012] FCAFA 189: the court noted that at trial it was common ground that the Commonwealth owes a detainee a non-delegable duty to exercise reasonable care for their health; and

• S v Minister for Immigration and Border Protection & Anor [2014] VSC 593: the Commonwealth accepted that it owed a non-delegable duty of care to provide reasonable healthcare to detainees.

In negligence claims, the plaintiff who suffers a psychiatric injury as a result of immigration detention is compensated for injuries which arise as a result of negligent conditions or treatment and not for psychiatric injury which arise as a result of the fact of the detention.

Each jurisdiction has different legislation which may affect the damages available. For example, the ACT has no thresholds on damages, whereas Victoria requires a 10 per cent whole person impairment in relation to mental/psychiatric injuries.^[17] Another example of legislative variation is exemplary and aggravated damages, as some jurisdictions do not allow for exemplary damages to be awarded either in relation to personal injury or negligence.^[18]

Although damages are the more traditional remedy for breaches of duty of care, equitable remedies may also be possible. In S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549, Finn J criticised the Commonwealth for failing to audit psychological and psychiatric services in detention.^[19] He noted that he would have granted injunctive relief to prevent the plaintiff’s further exposure to harm, but the plaintiff’s transfer to a psychiatric hospital rendered it unnecessary.^[20]

EXACERBATING THE ISSUE? MENTAL HEALTHCARE IN IMMIGRATION DETENTION

As the immigration detention environment increases the likelihood of psychiatric injury, the appropriate provision of mental healthcare is critically essential. As discussed above, in negligence claims, the plaintiff who suffers psychiatric injury as a result of immigration detention is compensated for injuries which arise as a result of negligent conditions or treatment and not for injuries which arise as a result of the fact of the detention. Therefore, the appropriateness of healthcare provided in immigration detention is relevant to discussions around both the psychiatric costs of immigration detention and the costs of compensation for psychiatric injury suffered in immigration detention.

Mental healthcare provided in immigration detention came under notorious scrutiny during the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, which was reported on by Mick Palmer in July 2005 (the Palmer Inquiry).^[21] Cornelia Rau was detained for roughly ten months as a suspected unlawful non-citizen, from March 2004 to February 2005. During this period she displayed consistent unusual behaviours and was assessed a number of times by mental health professionals. Their assessments found her to be ‘attention seeking’^[22] and found her actions to be ‘behavioural’ rather than of mental health concern.^[23] Ms Rau was never diagnosed with any mental illness during this period and never received appropriate psychiatric care. Eventually, it was uncovered that Ms Rau was in fact an Australian citizen, but was unable to identify herself as she was suffering from an untreated mental illness.^[24]

The Palmer Inquiry found the mental healthcare provided to Ms Rau was inadequate, noting that over the ten months of her detention, none of her carers believed it reasonable that her unusual behaviours were due to illness.^[25] It also noted serious shortcomings in clinical care.^[26] The report expressed concern regarding the lack of external accountability and professional review of standards in the delivery of healthcare within the immigration detention centres in which Ms Rau was detained.^[27]

The government announced a package of measures and an implementation plan to respond to the recommendations of the Palmer Inquiry and other events which occurred around the same period, with a commitment of $231 million over five years.^[28] The plan included the establishment of the Detention Health Advisory Group (DeHAG), an independent panel of medical experts to advise the government on detention health. This group was replaced in March 2013 with the Immigration Health Advisory Group (IHAG).

Concerns around the standard of mental healthcare in immigration detention have continued despite these commitments. The Australian Human Rights Commission regularly reports on visits to immigration detention centres. In 2010, the Commission reported on visits to Darwin facilities regarding a number of issues including mental healthcare.^[29] The report stated detainees who were interviewed did not appear to have received mental health treatment despite having significant vulnerabilities.^[30] It also stated that staff had not participated in training on significant mental health policy and there was a worryingly low rate of referral of detainees to specialised torture and trauma services.^[31]

An observational study of immigration detainees attending the Royal Darwin Hospital Emergency Department during 2011 revealed a high prevalence of unmet health needs and substantial levels of psychiatric morbidity, leading the researchers to conclude that the primary health care provided to the immigration detainees was inadequate.^[32]

Dr Peter Young was the Director of Mental Health Services for International Health and Medical Services, the contracted service which provides healthcare in all Australian immigration centres. He was employed in this role for three years before resigning in 2014 because he believed he could not continue without collusion with a system that was causing harm.^[33]

Dr Young believed a number of factors within the immigration health system to be unsatisfactory. He stated that confidentiality of detainee medical records is very problematic. The Department of Immigration and Border Protection own the medical records and therefore they are available to non-medical people for other purposes, which increases the likelihood of the misuse of sensitive medical information.^[34] He also explained that medical professionals working in immigration centres face the ethical problem of having dual loyalties; they are duty bound to their patient as well as to the government which is implementing policies that are causing harm to health.^[35] A further problem Dr Young identified was one of the underlying failures of Ms Rau’s healthcare; that unusual behaviour, and particularly self-harm, is deemed ‘bad’ behaviour by centre management and treated as a failure of discipline rather than a symptom of illness.^[36]

Similar concerns have been voiced by a number of health professionals and professional bodies over many years. The Australian Medical Association (AMA) voiced its ‘grave concerns’^[37] about the decision to disband IHAG in December 2013, and has repeatedly called for the re-establishment of a ‘truly independent body’.^[38] In February 2016, the AMA convened a forum to discuss the health of asylum seekers. As part of his speech, the then President of the AMA, Professor Brian Owler, noted the predominance of mental health conditions among the detainee population and stated, “A question has to be asked [of the government] about the apparent pervasive indifference to mental health...”^[39]

As we know that immigration detention increases the likelihood of psychiatric injury, every care should be taken to mitigate such risks. It is incumbent on the government to act upon the reported failures of the detention health system, as these failures will result in increasing both the health costs and costs of compensation associated with psychiatric injury arising in immigration detention. Ultimately, in any discussion on mental healthcare of immigration detainees, it needs to be stated that the most beneficial strategy for the promotion of detainee mental health is to end the policy of prolonged immigration detention.

CONCLUSION

On 4 November 2016, an open letter was published by health professionals in Australia and in the United Kingdom calling on Prime Ministers Malcolm Turnbull and Theresa May to acknowledge the unacceptable health costs of immigration detention by ending the detention of asylum seekers and refugees.^[40] This article has examined the risk of psychiatric injury arising from immigration detention and the courts’ response to such psychiatric injury. It has also outlined failures of psychiatric care in immigration detention which further increases the risk of psychiatric injury.

There are other costs associated with the psychiatric injury of immigration detainees which ought to be considered in any comprehensive assessment, such as the lifetime treatment costs of detainees’ psychiatric injury, and the effect such injury will have on detainees’ quality of life and ability to integrate into society, whether in Australia or elsewhere, after release from immigration detention.

Ebony Birchall, Hannah Lewis and Laura Majewski are all lawyers in the Project Litigation Group at Slater and Gordon Lawyers, in Sydney and Melbourne. PHONE [phone] EMAIL [e-mail]; [e-mail]; [e-mail]

---

^[1] See below under the heading ‘The psychiatric cost of immigration detention’.

^[2] Z Steel, S Momartin, C Bateman, A Hafshejani, D M Silove, N Everson, K Roy, M Dudley, L Newman, B Blick, S Mares, ‘Psychiatric status of asylum seeker families held for a protracted period in a remote detention centre in Australia’, Australian and New Zealand Journal of Public Health, Vol. 28, 2004, pp527-36.

^[3] Australian Human Rights Commission, ‘The Forgotten Children: National Inquiry into Children in Immigration Detention 2014’, 2014, p29.

^[4] J P Green and K Eagar, ‘The health of people in Australian immigration detention centres’, Medical Journal of Australia, Vol. 192, 2010, pp 65-70.

^[5] Department of Immigration and Border Protection, ‘Immigration Detention and Community Statistics Summary at 30 September 2016’, 2016, p11, http://www.border.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-30-sept-2016.pdf.

^[6] Z Steel, D Silove, R Brooks, S Momartin, B Alzuhairi and I Susljik, ‘Impact of immigration detention and temporary protection on the mental health of refugees’, British Journal of Psychiatry, Vol. 188, 2006, pp58-64.

^[7] Commonwealth Ombudsman, ‘Suicide and Self-harm in the Immigration Detention Network’, May 2013.

^[8] Above note 3.

^[9] Above note 2.

^[10] M Dudley, ‘Contradictory Australian national policies on self-harm and suicide: The case of asylum seekers in mandatory detention’, Australasian Psychiatry, Vol. 11 (Supplement), 2003.

^[11] Above note 2, p62.

^[12] Australian Border Deaths Database

http://artsonline.monash.edu.au/thebordercrossingobservatory/publications/australian-border-deaths-database/.

^[13] G Triggs, ‘Mental health and immigration detention’, Medical Journal of Australia, Vol. 11, 2013, pp721-2.

^[14] Freedom of Information figures released as FOI 13/69.

^[15] See for example, Kamasee v Commonwealth of Australia & Ors.

^[16] S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483.

^[17] See Wrongs Act 1958 (Vic) ss28LB and 28LF.

^[18] See Civil Liability Act 2002 (NSW) s21; Civil Liability Act 2003 (QLD) s52 and Personal Injuries (Liabilities and Damages) Act (NT) s19.

^[19] At [259].

^[20] At [263]; cf SBEG v Commonwealth of Australia [2013] HCATrans 213.

^[21] M Palmer, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, July 2005.

^[22] Ibid at 15.

^[23] Ibid at 12-19.

^[24] Ibid at 2.

^[25] Ibid at xii.

^[26] Ibid.

^[27] Ibid.

^[28] Editors, ‘Inquiries Into The Detention of Cornelia Rau and Vivian Alvarez’ [2006] AdminRw 19; (2006) 57 Admin Review 93.

^[29] Australian Human Rights Commission, Immigration detention in Darwin, (2010).

^[30] Ibid at s8.2.

^[31] Ibid.

^[32] Deans et al, ‘Use of Royal Darwin Hospital emergency department by immigration detainees in 2011’ (16 December 2013) Medical Journal of Australia 199 (11).

^[33] Peter Young, ‘Speaking of freedom: Human rights and mental health in detention,’ 31 July 2016 accessed at http://johnmenadue.com/blog/?p=6929.

^[34] Marr and Laughlan, ‘Australia's detention regime sets out to make asylum seekers suffer, says chief immigration psychiatrist’, The Guardian, 5 August 2014.

^[35] Ibid.

^[36] Ibid.

^[37] Adrian Rollins, ‘Govt drops shutters on asylum seekers health’, Doctor Portal, 2 January 2014, accessed at http://www.doctorportal.com.au/govt-drops-shutters-on-asylum-seekers-health/.

^[38] See Jarni Blakkarly, ‘Australian Medical Association calls for independent medical oversight of offshore detention’, ABC, 27 October 2016, accessed at http://www.abc.net.au/news/2016-10-27/australian-medical-association-calls-for/7970070; and see also Australian Medical Association, ‘Health Care of Asylum Seekers and Refugees’ (Revised 2015) at [4], accessed at https://ama.com.au/position-statement/health-care-asylum-seekers-and-refugees-2011-revised-2015.

^[39] Brian Owler, Speech from the Australian Medical Association Forum on Health care of Asylum Seekers, 21 February 2016, accessed at https://ama.com.au/media/ama-speech-prof-owler-ama-asylum-seeker-health-forum.

^[40] Health Professionals Against Immigration Detention, ‘Open letter from health professionals against immigration detention’, 4 November 2016, accessed at http://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(16)32118-3.pdf.