Courageous detention centre staff challenge the government
1st Jul 2015
The medical profession has held a key health and public interest role informing other professionals and the community about conditions affecting their patients inside Australia’s immigration detention centres. For example, in November 2013, 15 doctors who had worked in the immigration centre on Christmas Island wrote a letter raising concerns for the welfare of detainees and highlighted the professional difficulties faced by doctors working in immigration centres. Then on 7 April 2015, 24 current and former employees (both medical and non-medical) from the Nauru detention centre, published an ‘Open Letter to the Australian People’, which informed the community of tolerance within the detention centre of physical and sexual assault of children, and the sexual harassment and assault of vulnerable women in the centre for more than 17 months.
The Border Force Act 2015 (Cth) comes into effect today and threatened to stop any further release of information to the public from within detention centres, with medical professionals and other workers at risk of up to two years imprisonment for disclosure of information. The Act also places these workers in an ethical dilemma. The fact that the operative provision of the Act is titled 'Secrecy' says it all.
I have argued previously that doctors working in Australian detention centres may be subject to investigation for breaches of their professional obligations.* Therefore it is concerning that stories have emerged of health care practitioners working in detention centres, being required to undertake tasks that are contrary to their professional obligations, under direction of their employer.
Those concerns were so serious that a group of practitioners who had previously worked in detention centres have been calling for a profession wide boycott since at least August last year. An article published in the Medical Journal of Australia in August 2014 stated:
‘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.’**
In addition to making it harder for practitioners to comply with professional obligations, the new laws impose even further ethical problems for medical practitioners.
Research has shown that practitioners in Australian detention centres are already affected by the ethical dilemma they face working under a conflicting dual loyalty to their patient and employer. A study into the ethical responses of workers in detention centres reported this statement from a worker in an offshore centre:
‘I wake up in the middle of the night in a cold sweat, worried that one day we may have to face a royal commission and have to answer for the conditions under which these people were treated and which we didn’t have the guts to challenge the government on.’***
It has been recognised that medical practitioners have no real autonomy in detention centres to improve the level of care they provide to their patients. One way doctors have managed this dreadful conflict was by speaking out and advocating on behalf of their patient; as an advocate for their patient’s best interest. The new laws put medical practitioners in an impossible position as the dual loyalty conflict they are working under now threatens their own personal imprisonment if they choose to speak out. Without the ability to advocate for their patient’s best interest, some have even commented that a health care practitioner may be viewed as complicit in the mistreatment of their patient. Dr Marie Bismark has queried whether in five or ten years’ time, questions will be asked of health practitioners who may have been complicit in the mandatory detention regime.
The passing of this legislation was supported by both major political parties. Emeritus Professor Gillian Triggs, President of the Australian Human Rights Commission, in a recent speech rightly questioned: ‘What are the options for democracy when both major parties, in government and opposition, agree upon laws that violate fundamental freedoms?’
As Greg Barns, Australian Lawyers Alliance spokesperson, and George Newhouse, social justice lawyer, have argued, ‘[t]his legislation is antithetical to a society that professes to be a liberal democracy where independent scrutiny of, and protection for those who lift the veil on human rights abuses ought to be the norm.’
Today, 41 staff (most of whom had previously spoke out against conditions in detention) have published a courageous renewal of their criticisms and a direct challenge to the government:
‘We are aware that in publishing this letter we may be prosecuted under the Border Force Act and we challenge the department to prosecute so that these issues may be discussed in open court and in the full view of the Australian public.’
I expect in the not too distant future members of the legal profession will stand with such members of our medical profession to argue in Court why no penalty should be applied to those who have a duty to act in the best interests of their patients.
Ebony Birchall is a lawyer in the medical law department of Slater and Gordon in Sydney. She tweets at @EbonyJoanB.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
* Ebony Birchall, ‘Regulation of healthcare practitioners in immigration detention centres’ (2015) 127 Precedent 48.
** Sanggaran, Ferguson and Haire, ‘Ethical challenges for doctors working in immigration detention’, (2014) 201(7) Medical Journal of Australia 377.
*** Linda Briskman and Deborah Zion, ‘Dual Loyalties and Impossible Dilemmas: Health care in Immigration Detention’ (2014) 7 (3) Public Health Ethics 277-286 at 284.