Doctors and detention: a question of ethics

The threat of imprisonment for doctors who who speak out has created a moral conflict

---

 

The Border Force Act and the threat of imprisonment for doctors who who speak out has created a moral conflict

Hundreds of doctors from around Australia have been galvanised to make an ethical stand against the detention of asylum seekers and some of them are willing to risk imprisonment to do it.

While doctors in the past have broken strict contracts to speak out about what they have witnessed at the Nauru and Manus Island detention centres, the recently introduced Border Force Act now makes it a federal offence for an ‘entrusted’ person to talk publicly on such issues.

While confusion surrounds who might be included in the description of an entrusted person, it is generally understood to refer to doctors, nurses, psychologists, teachers and humanitarian workers who have worked in the centres, either as employees or visiting consultants.

Anyone found guilty under the Act faces two years’ imprisonment.

Yet, since its introduction last year, a number of doctors have risked that penalty in a rare campaign of civil disobedience designed to challenge the secrecy surrounding the operation of the detention centres and the treatment of refugees.

Last year, 40 former employees of the private company that provides health services to the centres – International Health and Medical Services (IHMS) – signed and published an open letter describing detention as representing child abuse and a gross violation of human rights.

The signatories – including psychiatrists, paediatricians, gynaecologists, doctors, and nurses – challenged the Immigration Department to prosecute them under the Border Force Act so that the healthcare of refugees and their human rights could be discussed in open court.

Dr John-Paul Sanggaran, a GP and former IHMS medical officer, was one of them.

Dr Sanggaran was appalled by what he saw when working at the detention centres on Christmas Island in 2013 and has continued to speak out against the immigration detention system and the poor healthcare provided.

He describes the system and the secrecy surrounding it as having a corrosive effect on the ethical standards of medicine.

Of particular ethical concern to doctors, he said, was that those tasked with providing health care to the refugees in the centres found it virtually impossible to do so.

He described this as a dual-loyalty conflict, whereby doctors working in the immigration system found that they could not serve both the interests of their patients and their employers.

“The current system of indefinite detention is broadly recognised within the medical community as child abuse and torture,” Dr Sanggaran said.

“Yet we, as doctors, are required by our professional code of ethics to advocate that the healthcare environment remain patient-centred at all times and to ensure that we do not countenance, condone or participate in the practice of torture or other forms of cruel, inhumane or degrading procedures.

“It is not acceptable for a doctor to patch up a victim to be returned to the torturers only to have that victim returned to be patched up again.”

Dr Sanggaran, who organised last year’s open letter, is now advocating for Australia to ratify the Optional Protocol to the Convention Against Torture (OPCAT), which would allow for independent domestic and international monitoring of the detention centres.

He said this would improve transparency and conditions at the centres, which could help resolve some aspects of the dual-loyalty conflict experienced by medical personnel working in the system.

“This UN treaty has been signed by Australia but not yet put into law, but more than 9000 people have signed my petition calling for its ratification,” he said.

“I am attempting to improve conditions by improving transparency which is hampered by the deliberately opaque nature of immigration detention and also the intimidation of the Border Force Act which threatens individuals who dare to speak out with two years of incarceration.

“There are now many of us willing to risk jail to speak on this issue.”

Another of those is Professor David Isaacs, a Sydney paediatrician who spent five days working in the Nauru centre in 2014 as a consultant to IHMS.

While his visit took place before the introduction of the Border Force Act secrecy provisions, Professor Isaacs did break the strict confidentiality clauses of his contract, but not before thinking deeply about the ethics of such a move and seeking legal advice.

Part of that decision was driven by the shock of treating a six-year old girl suffering severe rope burns around her neck caused by a suicide attempt.

“I visited Nauru with clinical nurse Alanna Maycock and we were both horrified by what we saw there,” Professor Isaacs said.

“The child who tried to hang herself was the single most shocking incident I saw, but many children were self-harming.

“Every child and every family was in psychological meltdown and trauma so I decided that I had to say something, despite the contract provisions, because it’s not just about the detention system, it’s the way these people are treated,” he said.

“When I was there people were called by the number of the boat they arrived on, which seemed to me to be deliberately dehumanising and demeaning.

“I contacted a human rights lawyer before I first spoke out who told me I was protected under the law if I was “exposing iniquity”, which is an interesting term.”

Professor Isaacs said he had also recently asked lawyers if he could face prosecution under the Border Force Act.

“The limits of this law remain somewhat unclear,” he said.

“Whether the secrecy provisions would apply to me now as a former ‘entrusted person’ were I to talk about something I saw there that I haven’t spoken of before is an open question.

“I think there is an element of bluff to all this – both the very strict contracts and the new provisions of the Border Force Act – but they are also clearly designed to quash freedom of speech.

“I think this a very sinister aspect to the entire issue of refugee detention.”

So ethically difficult are doctors now finding it to work in the system, most GPs employed at the offshore centres in Nauru and Manus Island are now being hired from the other countries, according to the co-founder of Doctors4Refugees, Sydney GP Dr Barri Phatarfod.

She also said the new secrecy law was having a chilling effect upon the willingness of some doctors to put their names to medical reports seeking appropriate care for refugees, for fear that such a move could affect their careers in the public health system in Australia.

Doctors4Refugees was not just an advocacy group but also worked to practically assist with the healthcare of refugees in detention by providing a triage and referral service, Dr Phatarfod said.

“This works through a system whereby offshore refugees contact an advocate in Australia who acts on their behalf to bring their cases to us after they have signed a document granting permission for us to access their health records,” she said.

“We then write to IHMS to get those records and we go through them and make recommendations such as referrals to surgeons, psychiatrists or radiology.

“The problem with this system is that it requires the people in the offshore detention centres to have an advocate in Australia and many don’t. Some might have poor English and not know who they can contact while others are so depressed they have given up.

“So it’s not a comprehensive health assessment service but it is the best we can do under the current system.”

Dr Phatarfod said that while Doctors4Refugees now had almost 400 members, the triage service was provided by a small core group of GPs and specialists from across Australia.

While specialist input added weight to the requests for treatment, a decreasing number of specialists were willing to put their names to such requests because of the new secrecy provisions within the Border Force Act.

“While GPs in our triage service have less concern about talking about this in public, some specialists say they are happy to help but prefer not to give their names to IHMS or the Immigration Department,” she said.

“This is because some are still in training, some have young families and don’t want to get caught up in legal proceedings, while the careers of some specialists depend on public hospital appointments so they are more sensitive about being seen as standing up against government policy.

“Yet many specialists are deeply concerned, and we have been contacted by some who have been treating a patient only to find them gone mid-treatment because they have been taken away by guards and put back into detention.

“They want to get involved but they don’t want to go to jail, yet they also have grave concerns for their patients caught up in this system. This is the corrosive effect of secrecy.”

Dr Phatarfod denied that the doctors who were increasingly speaking out against immigration detention – particularly the detention of children – were taking a politically partisan position on the issue.

Rather, she said, doctors involved were just abiding by the Medical Code of Ethics, the four main pillars of which are autonomy, beneficence, non-maleficence and justice.

“Responsible doctors have always abided by the Hippocratic Oath, our Code of Ethics and the Code of Good Medical Practice that we sign upon registration and that means standing up for the welfare of our patients.

“Children in offshore detention centres, like baby Asha recently, present a particular case in point because doctors, like teachers, are mandated in many Australian states to report signs and suspicions of abuse. So the doctors at the Lady Cilento Children’s Hospital who refused to allow the child to be taken back into an abusive situation were only doing what they had been asked to do.”

Now, the AMA has also taken a stand.

In a speech at a forum in March, the AMA President, Associate Professor Brian Owler described the prolonged detention of children as a “state sanctioned form of child abuse” and called for the immediate release of all children from all detention centres into the community.

The government earlier this month declared that there were now no longer any children held in detention on mainland Australia.

However, there remain more than 50 children still held in detention on the island of Nauru, and there are lingering questions as to whether asylum seekers and their children currently in Australia for medical treatment will be returned to detention in Nauru.

Professor Owler also took aim at the secrecy provisions included in the Border Force Act.

“Rather than a culture of clinical independence and transparency, we have the Border Force Act – a piece of legislation that was passed with the support of both the Coalition and Labor, but opposed by the Greens,” Professor Owler told the forum.

“The AMA is rightly concerned about the restriction contained in [this] Act.

“Despite the government’s claims that the intent of the Border Force Act is not to prevent doctors from reportingpublicly on conditions in detention and regional processing facilities, the AMA has received legal advice that does not reassure us.

“The legislation must be amended to make it absolutely clear that it does not apply to doctors or nurses working in detention facilities.

“As doctors, we care for all people, without regard to race or creed, without regard to where they come from. That is the basic moral tenet of our profession.