Doctors should obtain legal advice before treating asylum seekers

19th Jun 2015

Medical professionals working in immigration detention centres should obtain legal advice about their professional liability following new legislation which could gag them from speaking out about poor conditions for detainees, the Australian Lawyers Alliance (ALA) said today.

The new Border Force Act 2015 threatens ‘entrusted people’ such as doctors and other medical practitioners with up to two years’ jail for recording or disclosing information about conditions in centres such as those on Nauru and Manus Island, with limited exceptions.

However ALA spokesperson Dr Andrew Morrison SC said that the legislation potentially leaves doctors exposed to being sued or even subject to professional misconduct proceedings, as it could prevent them from complying with the standards and codes of conduct set by the Medical Board of Australia.

“A doctor is bound to act in the best interests of their patient, by virtue of their profession,” Dr Morrison said. 

“The government’s new Border Force Act leaves doctors in an impossible position. It is basically asking doctors to choose between themselves and their patients.”

“This new legislation places medical professionals who work in immigration detention centres in an ethical dilemma,” Dr Morrison said.  “On the one hand they are professionally sworn to act in the best interests of their patients and if they fail to do so, could face being struck off as a medical practitioner.”

“However, on the other hand they are threatened with the prospect of imprisonment if they disclose information that highlights abysmal breaches of their patients’ human rights which does not adequately fulfil legislative exceptions.”

“There is a fine line that they must walk. This is an ethical and legal tightrope for doctors,” Dr Morrison said.   

“The government’s own guidelines state that the standard of healthcare provided in regional processing centres should be ‘broadly comparable to what is available in Australia and the best available in the circumstances’. How can this be achieved when standards in the centres are so grossly inadequate, and healthcare professionals are inhibited from highlighting this?”  

“Doctors in this situation may find themselves exposed to civil proceedings if they are forced to administer medical care in a way which would not be acceptable under Australian law,” Dr Morrison said. “It may be advisable for medical practitioners to seek legal advice before treating patients in detention under these new legislative requirements.”

“It would be a sad day if Australian doctors are forced to continue to choose between their own best interests and those of their most vulnerable patients being held in immigration detention.”

“Medical professionals owe a duty of care to their patients. A higher duty is that of a non-delegable duty of care – which the Australian Lawyers Alliance has submitted is the duty owed to detainees by the Commonwealth,” Dr Morrison said. 

“In the future, medical professionals could also see themselves exposed to proceedings for negligence for injury that results from a breach of duty of care.”

Dr Morrison said that it was time that the Australian government acknowledge that ongoing legislative reform regarding migration issues was running counter to duty of care obligations at common law.

“At some point, there will come a precipice at which the Australian government will have no choice but to face its mounting liabilities,” Dr Morrison said. 

“Until that point, individuals, such as asylum seekers, medical professionals and staff within the centre, bear an unduly heavy burden that should not be upon their shoulders. Responsibility legally rests with the Commonwealth.” 


Tags: Human rights Asylum seekers and refugees Health, medicine and law