FEDERAL COURT OF AUSTRALIA
S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549
TORT – Commonwealth’s duty to provide mental health care services to indefinite detainees in immigration detention – non-delegable duty – scope and content of duty – relevant services provided by contractor and sub-contractors – alleged systemic defects in provision of mental health services – whether Commonwealth in breach of its duty
MIGRATION – immigration detention – special relationship of Commonwealth and detainees – duty of Commonwealth to ensure a level of health care is made available which is reasonably designed to meet detainees’ needs
MIGRATION – “immigration detention” – s 5(1) of the Migration Act 1958 (Cth) – relationship between Commonwealth and detainees – whether detention and holding by and on behalf of the Commonwealth
MIGRATION – “officer” – s 5(1) of the Migration Act 1958 (Cth) – whether Secretary relevant officer who owes duty of care to detainees – whether s 57 of Public Service Act 1999 (Cth) creates such a relationship
CONTRACT – outsourcing arrangements for provision of health care services – inadequate auditing and monitoring of service providers – Commonwealth’s failure to take reasonable care in provision of services
JURISDICTION – federal jurisdiction – injunctive relief sought unsuccessfully against an officer of the Commonwealth – cause of action in negligence against the Commonwealth within associated jurisdiction – Federal Court of Australia Act 1976 (Cth) s 32
Federal Court of Australia Act 1976 (Cth) s 32
Judiciary Act 1903 (Cth) s 39B
Mental Health Act 1993 (SA) s 12
Migration Act 1958 (Cth) ss 5, 13, 14, 48B, 189, 273
Public Service Act 1999 (Cth) s 57
Al-Kateb v Godwin (2004) 208 ALR 124 discussed
Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 271 discussed
Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Mastipour (2004) 207 ALR 83 cited
Kondis v State Transport Authority (1984) 154 CLR 672 cited
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 cited
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 cited
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 cited
Wellesley Hospital v Lawson (1977) 76 DLR (3d) 688 cited
Howard v Jarvis (1958) 98 CLR 177 cited
Morgan v Attorney-General [1965] NZLR 134 cited
R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 cited
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 cited
Spicer v Williamson 132 SE 291 (1926) cited
Brooks v Home Office (1999) 48 BMLR 109 cited
Bowring v Goodwin 551 F 2d 44 (1977) cited
Knight v Home Office [1990] 3 All ER 237 cited
Allsop, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aus Bar Rev 29
Balkan & Davis, Law of Torts (3rd ed, 2004)
Trindade & Cain, The Law of Torts in Australia (3rd ed, 1999)
Todd (ed), The Law of Torts in New Zealand (3rd ed, 2004)
S v SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & COMMONWEALTH OF AUSTRALIA
File No SAD 21 of 2005
M v SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & COMMONWEALTH OF AUSTRALIA
File No SAD 22 of 2005
FINN J
ADELAIDE
5 MAY 2005
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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BETWEEN: |
SAD 21 of 2005 S APPLICANT
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AND: |
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
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FINN J |
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DATE OF ORDER: |
5 MAY 2005 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. the application against the first respondent be dismissed; and
2. the second respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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BETWEEN: |
SAD 22 of 2005 M APPLICANT
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AND: |
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
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JUDGE: |
FINN J |
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DATE OF ORDER: |
5 MAY 2005 |
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WHERE MADE: |
ADELAIDE |
THE COURT ORDERS THAT:
1. the application against the first respondent be dismissed; and
2. the second respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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SOUTH AUSTRALIA DISTRICT REGISTRY |
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BETWEEN: |
S 21 of 2005 S APPLICANT
S 22 of 2005 M APPLICANT
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AND: |
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
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JUDGE: |
FINN J |
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DATE: |
5 MAY 2005 |
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PLACE: |
ADELAIDE |
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Paragraph Numbers
INTRODUCTION 1-3
A MATTER OF FEDERAL JURISDICTION 4
THE CLAIMS MADE 5-6
GENERAL BACKGROUND 7
(i) Baxter 8-10
(ii) Management Unit 11-17
(iii) Red 1 18-24
(iv) SASH watch 25-29
THE OUTSOURCING ARRANGEMENTS 30-36
GENERAL SERVICE PROVISION: GSL AND DIMIA 37-39
HEALTH SERVICE PROVISION: IHMS AND PSS 40
(i) The General Practitioners 41-44
(ii) The Psychiatrist, Dr Frukacz 45-49
(iii) The Psychologists and Counsellors 50-56
(iv) Accessing South Australian mental health services 57-58
AUDITING/MONITORING THE PROVISION OF PSYCHIATRIC AND PSYCHOLOGICAL SERVICES 59-64
THE SOUTH AUSTRALIAN MENTAL HEALTH ACT 65-66
BAXTER CRITICISMS 67-69
WITNESS ISSUES 70-74
THE SETTINGS OF THE CLAIMS 75
(i) S’s chronology 76-86
(ii) M’s chronology 87-95
THE APPLICANTS’ MENTAL HEALTH AND TREATMENT 96-98
(i) Applicant S 99-117
(ii) Applicant M 118-145
MATTERS OF CONTROVERSY 146
(i) The service providers’ loyalties and good faith 147-148
(ii) Detainee access to outside medical practitioners 149-153
(iii) Self-harm/hunger strikes, the IDS, and the provision
of psychiatric services 154-163
(iv) The Commonwealth’s treatment of adverse/conflicting
medical opinion 164-175
(v) Baxter v Glenside 176-184
(vi) The treatment opinions 185-194
THE STRUCTURE OF THE MIGRATION ACT AND “IMMIGRATION DETENTION” 195-203
THE APPLICANTS’ CASES AS PLEADED 204-206
THE COMMONWEALTH’S DUTY OF CARE 207-213
THE PARTIES’ CONTENTIONS 214-216
CONSIDERATION 217
General considerations 217-225
Matters of Detail 226
(i) The period to 12 February 2005 227
S 228-232
M 233-234
(ii) The period after 12 February 2005 235-240
S 241-244
M 245-256
CONCLUSIONS 257-264
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INTRODUCTION
1 These two applications are a predictable consequence of the decisions of the High Court in Al-Kateb v Godwin (2004) 208 ALR 124 and Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 271. A majority of the Court in Al-Kateb held that the Migration Act 1958 (Cth) (“Migration Act”) on its proper construction authorised the indefinite detention of an unlawful non-citizen in circumstances where there is no reasonable prospect of removing that person from Australia. In Behrooz it was held that the conditions of immigration detention do not affect the legality of that detention. Nonetheless a clear majority of the Court accepted, to use the words of Gleeson CJ (at [21]), that:
“Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.”
See also McHugh, Gummow and Heydon JJ at [51]-[53]; Kirby J at [82].
2 The applicants, S and M, have each been in immigration detention in various parts of Australia for about five years. They are now in Baxter detention centre in South Australia (“Baxter”). Both have been diagnosed by psychiatrists as suffering major depression. The object of their respective applications is to compel their assessment for admission to a mental health facility under the Mental Health Act 1993 (SA) (“Mental Health Act”). In the event both S and M are now in such a facility. After S had given evidence during the hearing of his application, a medical practitioner made a detaining order under that Act. Shortly prior to my delivery of this judgment, the Commonwealth’s legal advisers communicated to the Court that M as well has been transferred from Baxter to a mental health facility.
3 In consequence there is no occasion for me now to grant relief on their applications. Nonetheless, as the following reasons indicate, I am satisfied not only that the applications were properly brought and maintained but also that, save for the transfers referred to above, the applicants had made out a case for appropriate relief. My reasons are stated in summary form in “Conclusions” below. The applicants are entitled to their costs.
A MATTER OF FEDERAL JURISDICTION
4 Of recurrent concern since their filing has been whether, in their various amended mutations, the two applications have attracted or have continued to attract federal jurisdiction: on which see generally, Allsop, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Rev 29. Suffice it to say now that the Court’s jurisdiction to entertain these applications is no longer in doubt. While the causes of action relied upon by each applicant are founded on negligence, the relief sought is by way of injunction against either the Secretary, Department of Immigration & Multicultural & Indigenous Affairs (“DIMIA”) or the Commonwealth. The former claim clearly invokes federal jurisdiction, the injunction being “sought against an officer … of the Commonwealth”: Judiciary Act 1903 (Cth), s 39B(1). The latter claim, being associated with the claim against the Secretary, equally clearly falls within the associated jurisdiction conferred by s 32(1) of the Federal Court of Australia Act 1976 (Cth).
THE CLAIMS MADE
5 It will be necessary to outline in some detail later in these reasons the actual bases on which the claims of S and M in negligence are made against the Secretary or the Commonwealth. Suffice it to say for present purposes that it is claimed that the Commonwealth has breached its duty to ensure that reasonable care is taken of S and M in detention in relation to the treatment of their respective psychiatric conditions. That breach (or breaches) is not attributed to any specific acts of negligence on the part of their treating medical practitioners. Rather it is ascribed to systemic defects in the manner in which mental health services are provided in Baxter, which defects are responsible for the deterioration in the medical conditions of S and M with resultant increase in risk of self-harm or suicide. The breach alleged was said to be a continuing one.
6 The actual injunctions sought went through a number of mutations. During the course of the hearing I indicated to counsel for the applicants that the forms of order which had been sought and which were mandatory in character could well be found to be inappropriate in the circumstances: cf Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [3], [138]-[144]. In its last iteration what was sought in essence is an order restraining the respondents from so detaining the applicants as would prevent or inhibit their immediate presentation for assessment for admission to a mental health facility under the Mental Health Act.
General background
7 It is necessary to describe in some detail aspects (a) of the operations of Baxter; (b) of the Commonwealth outsourcing of the management of, and service provision at, Baxter; and (c) of the manner in which mental health services are provided. These provide the context in which the circumstances giving rise to these two proceedings have occurred.
(i) Baxter
8 Baxter, a purpose built immigration detention facility, is located 10 kilometres from the city of Port Augusta in South Australia on land previously used as a “bare-base” training camp for the Army. It is set in what a witness, Dr Malcolm Richards, described as “a very arid landscape” and commenced operations in September 2002. It contains nine separate, self-contained and secure residential compounds for detainees, these being differentiated by reference to colour and number (i.e. Red 1, 2 and 3; White 1, 2 and 3 and Blue 1, 2 and 3). The operations of the Red 1 compound (“Red 1”) are outlined below. Red 1 is used for what the General Manager of Baxter described as “behavioural modification purposes”. The evidence is that from most of the residential compounds while a detainee can see the sky he or she cannot see beyond the compound to the horizon.
9 Outside the detainees’ compounds are amongst other things a visitor compound; a double-peaked roof gymnasium (the site of a protest referred to later in these reasons); a management compound in which is located what is known as the “Management Unit” (a purpose built facility allowing for 24 hour observation of detainees and the operations of which are described below); and a medical compound. About 70 video monitoring cameras are located in the facility (including in the detention areas of the Management Unit). The perimeter is bounded by a wire fence that holds razor-wire.
10 At the time of the hearing, the nominal roll for Baxter recorded 326 detainees. It is the evidence of Ms Kannis, a DIMIA official and Manager of Baxter, that about one third of this number is made up of long-term detainee asylum seekers; that probably most of the detainees receiving psychiatric treatment and medication for depression come from that group; and that DIMIA has a significant mental health problem amongst that group. The causes and the significance of that problem are discussed later in these reasons.
(ii) Management Unit
11 The following is drawn, primarily from an extract of operational procedures formulated in October 2003 by DIMIA in consultation with its detention services providing contractor (“GSL”) and from the evidence of Mr James Williams, a DIMIA officer.
12 The Management Unit is a purpose built, self-contained, video monitored compound comprising (inter alia) 10 “accommodation rooms” that house detainees. An accommodation room is approximately three metres square. It is air-conditioned and heated and contains a window which admits light but has no view as it faces a wall. A mattress sits on the floor and bedding is provided to a detainee on arrival. There are no other furnishings and, apart from a change of clothes, detainees are unable to bring their personal belongings. An open doorway leads to a small bathroom containing a shower, hand basin and toilet. Detainees can have access to reading and writing material in their rooms if the Management Unit Review Team deem that appropriate.
13 Detainees in the Management Unit are subject to constant surveillance, both in their rooms and in the rest of the compound. In each room a closed circuit television camera oversees and records a detainee’s movements both inside the room and, via an aluminium mirror, partially inside the bathroom. Low level light allows observation at night.
14 Transfer to the Management Unit occurs at the direction of the General Manager, Mr Peter Saxon, after consultation with Ms Kannis and, where practicable, the Management Unit Review Team (“MURT”). This team is established by the General Manager and is responsible for managing, monitoring and reviewing on a daily basis individual cases of detainees housed in the Management Unit. It includes the Operational Manager, the Programs Manager, the DIMIA Manager, a Medical Representative and a Specialist Advisor such as a mental health professional. I would note that consultation prior to transfer is not necessary in an emergency situation where the health and safety of people are at serious risk, but reasons for not consulting must be documented within 24 hours of the transfer.
15 The stated general purpose of the transfer is to place a detainee in a regime of closer supervision when this is necessary to maintain the good order and security of the facility and the safety of other detainees. A transfer may result first, if a detainee is an immediate threat to the security and good order of the facility or a threat to their own or another’s safety, or second, as part of an ongoing case management strategy where other behaviour management strategies have been unsuccessful (for example where a detainee wilfully damages property or repeatedly refuses an order to cease violent and/or unlawful behaviour). The operating procedures specify that “under no circumstances will there be any element of punishment applied to the detainee” and that the special needs of the detainee must be identified and, if the behaviour has medical or psychiatric roots, appropriate medical treatment must be given. Ordinarily, a transfer to the Management Unit is on a short term basis only and alternative measures must be considered after 48 hours. Mr Saxon gave evidence that since November 2004 the longest period of time that a detainee had spent in the Management Unit was two weeks.
16 Detainees are allowed outside their room for a minimum of four hours a day. During this period they may access other parts of the Management Unit compound, which also comprises a recreation room, mess area, officers’ station and two enclosed exercise yards. The recreation room contains a television and board games. Officers who run educational programs deliver educational packs on request every two to three days. The mess area contains a sink, fridge, microwave, and fixed tables and chairs. Meals are delivered to the unit at each meal time. The officers’ station is equipped with a cordless phone and detainees may take personal telephone calls in their rooms or in the exercise yards. In the exercise yards detainees can also access sporting equipment such as balls and are allowed to smoke.
17 Communication with and visits from relatives, friends, community contacts or diplomatic, consular or legal representatives are provided for in the operational procedures, but are subject to restrictions for (inter alia) management reasons. Mr Williams gave evidence that it was “quite common” for detainees to have one-off, supervised visits from other detainees, but external visits other than those from the Red Cross, the Human Rights and Equal Opportunities Commission or the Ombudsman were “not normal”.
(iii) Red 1
18 Unlike the Management Unit, there are no written operating procedures specific to Red 1. The following is, as a result, drawn primarily from the evidence of Mr Williams and Mr Saxon.
19 DIMIA built Red 1 (also referred to as Redgum) in its current form following major fires in December 2002 but it was not put into active use until early in 2004 following GSL’s take over of services at Baxter.
20 As noted earlier, it is used primarily for behaviour modification purposes. Most transfers to Red 1 are from the Management Unit and occur with the support of the MURT as part of an individual management plan for transition back to a detainee’s usual compound. The level of surveillance is higher than that offered in the general compounds but is not as intensive as that in the Management Unit. Unless an emergency situation exists, transfer to Red 1 is made in consultation with Ms Kannis or her deputy. Mr Saxon makes the final decision.
21 Each accommodation room in Red 1 is air-conditioned and heated. A window overlooks a lawned area with shaded outdoor seating areas. A small bathroom has hot and cold running water. The compound also comprises a dining room with kitchenette and secured tables and chairs; recreation room with cable television, table tennis tables and pool tables; public telephones; laundry facilities; first aid station and an officers’ observation area that is staffed 24 hours a day.
22 Once transferred to Red 1 detainees move through up to four stages of a progressively less restrictive behaviour management regime. The compound is divided into “A” side and “B” side – generally “A” side is used for detainees in stages 1 and 2, while “B” side is used for detainees in stages 3 and 4. The stages are applied flexibly: it may not be necessary for a detainee to move through each stage. It is detainees’ compliant behaviour that allows them to short-cut or circumvent the process. Furthermore, the conditions outlined below are only minimum conditions.
23 An individual behaviour plan for stages 1 to 4 has been formulated for Red 1 and generally describes the stages of this form of detention. A detainee is held in stage 1 for seven days before a review by the MURT determines whether he or she has successfully completed the stage such that the detainee can progress to stage 2. During this period a small amount of personal property – personal clothing, reading and writing materials, religious articles and personal hygiene items – is allowed in rooms. Educational packs are supplied on request. Detainees are permitted outside their rooms during a “time out” period of four hours per day, which is divided into two parts. Incoming phone calls and one outgoing call during the time out period not exceeding 30 minutes in duration are allowed. Meals are taken in the recreation room. Personal and inter-compound visits are prohibited, while visits from DIMIA, the Red Cross, and religious, legal and consulate representatives are facilitated. The plan sets out a number of behavioural objectives that detainees are expected to meet – no assaults or threats to staff or other detainees, no use of abusive language, no major outburst or disruptive behaviour, compliance with all lawful staff instructions and no deliberate property damage. I would note that the plan provides for the detainee, detainee case management coordinator and Operations Manager to sign that the detainee has “reached a standard of behaviour which is acceptable to move on to stage 2”.
24 A detainee is held to stage 2 for seven days in the first instance. In this stage detainees are also permitted a transistor radio or stereo unit and other personal effects authorised by the Operations Manager. The “time out” period increases to six hours per day in three parts. During time out detainees can make two outgoing phone calls not exceeding 30 minutes in duration. They may also have two pre-approved visits per week, but cannot visit detainees in other compounds. After seven days their case is reviewed by the MURT and detainees may progress to the 14-day stage 3. In this stage detainees are permitted time out between 8am and 11pm, three pre-approved visits, attendance at church services, one visit to another detainee residing in Red 1, unlimited phone calls, one canteen purchase per week, access to recreational equipment and more personal property such as compact discs, and one electrical item such as a computer or television. Upon progression to stage 4, which extends for 31 days, detainees are permitted five approved visits per week and may make inter-compound visits.
(iv) SASH watch
25 The following is drawn from the evidence of Ms Kannis and of Ms Liz Hinton, the Clinical Director of Professional Support Services, the subcontracted supplier of psychological services.
26 On detainees’ initial inception into Baxter, their physical and mental health is assessed and staff are briefed as to any history of self-harm/suicide attempts or any physical or emotional abuse. All Baxter staff are said to be trained to recognise and respond to behaviours or state of mind that might suggest negativity or risk, such as apparent withdrawal, depression, agitation/aggression, projected hopelessness or helplessness, anxiety, restlessness, unfavourable detention decisions, and interaction with family and friends.
27 If a staff member has a concern about the possibility of risk they are instructed to cause the detainee to be placed on a suicide and self-harm watch (SASH watch”) plan. The management of the detainee then becomes the responsibility of the SASH watch team, which comprises a psychologist, a GSL case officer, a DIMIA officer and nursing staff.
28 Once a detainee is placed on SASH watch, GSL staff carry out observations at regular intervals and also engage in what is said to be “meaningful contact”. Specific observation plans are tailored to the assessed risk of a detainee self-harming. There are six levels of “watch observations”:
29 The SASH watch team holds regular meetings concerning the management of the particular detainee. This is said to provide an opportunity to assess the need for a psychological, psychiatric or other specialist assessment. I should interpolate that there is only slender evidence before me of a SASH watch team actually considering the need for such an assessment of either of the applicants in these proceedings. The regularity of SASH watch team meetings is determined by the circumstances of each case, but is at least twice a week and in critical or life threatening situations ordinarily occurs once a day.
The Outsourcing Arrangements
30 Baxter was established and is maintained by the Commonwealth: see s 273(1) of the Migration Act. The Commonwealth has contracted for the provision of “detention services” (being the services described in Schedule 2 to the current Detention Services Contract) with GSL (Australia) Pty Ltd (“GSL”). Those services relate, essentially, to the day-to-day operations of Baxter as a detention facility. They do not extend to advising, deciding, etc about the immigration status of a detainee, or of a detainee’s removal from Australia.
31 GSL is required to meet specified Immigration Detention Standards (“IDS”) in its contract performance. Schedule 3 of the contract specifies in respect of services specified in Schedule 2 the relevant standard and its performance measures. These two schedules run to 160 pages.
32 For present purposes it is unnecessary to refer to the terms of the contract itself, although reference needs to be made to some of the provisions of the two schedules noted.
33 The Commonwealth acknowledged in Schedule 2 that it retains ultimate responsibility for detainees in Baxter: cl 4.1.3; that it owes a duty of care foreach and every person in immigration detention and to ensure the safety and welfare of all detainees: cl 4.1.2. Part 16 of Schedule 2 deals with the information gathering, record keeping and reporting obligations of GSL and the monitoring to be engaged in by DIMIA. The “context” for these functions is set out in cl 16.1.1 in these terms:
“The Department’s duty of care in the detention environment is underpinned by the availability of timely, comprehensive and accurate information from the Services Provider about day to day activities. This duty of care extends not only to detainees, but also to staff, visitors and others who may have dealings with detention activities. Timely provision of information is required to enable the Department to assess whether this duty of care is being maintained by the actions of the Services Provider, and to facilitate monitoring and performance assessment of the Services Provider.”
34 Part 7 of Schedule 2 describes the context for the “Health care”, IDS and performance measures. Clauses 7.1.1 to 7.1.3 include the following:
“7.1.1 The Department expects that detainees should be able to access either in a facility or externally, a level and standard and timeliness of health services, including optical and dental services, broadly consistent with that available in the Australian community, taking into account the special needs of the detainee population: emphasis added.
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7.1.2 The level of primary health care services available to detainees in detention facilities should sit broadly within the norms of primary health care available to members of the Australian community through a General Practitioner or a community health centre. In some instances treatment may not be able to be provided within the facility and detainees will require referral to specialists or to use hospital outpatient services. Detainees may also at times require admission to hospitals or residence in facilities other than detention facilities. It is the responsibility of the Services Provider to ensure that while detainees are undergoing treatment or using medical facilities outside the detention facility, they remain lawfully detained.
7.1.3 The Services Provider will be responsible for costs associated with medical treatment within a detention facility, at a day care facility, at hospital outpatients and for referral to specialists. Where a detainee is admitted to a hospital, the Department will be responsible for the costs. However, this will be considered on a case-by-case basis, having regard to protocols that are being developed, and in some circumstances the Services Provider may be responsible for the costs of hospitalisation. The Services Provider must protect Commonwealth interests by ensuring that detainees get proper preventative and remedial primary health care to the extent possible and that hospitalisation only occurs in appropriate cases”: emphasis added.
35 Three of the standards set out in Schedule 3 require particular note in light of the cases advanced by the applicants. I should indicate that in the following quotations the relevant standard is to the left, the performance measure to the right. Under the headings “Care needs” and “Health” is a detailed listing of standards and measures which includes the following:
“2.2.1.1 General
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2.2.1.1.1 Detainees are able to access timely and effective primary health care, including psychological/psychiatric services (including counselling): · in a culturally responsive framework; and · where a condition cannot be managed within the facility, by referral to external advice and/or treatment. |
(a) No substantiated instance of a detainee not having access to health care of this nature. |
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2.2.1.1.2 In establishing the health care service, the Services Provider: · ensures services are delivered by qualified, registered and appropriately trained health care professionals; · develops and implements a health care plan for each facility; and · draws on the advice, knowledge and experience of a health advisory panel. |
(a) The Department is provided with evidence on a monthly basis that the health care service is available and accessible. (b) No substantiated instance of health care staff not being qualified, registered and appropriately trained. (c) No substantiated instance of the centre health plans not being implemented, effective or reviewed periodically. (d) No substantiated instance of advice of the health advisory panel not being drawn on. |
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2.2.3.4Self-harm
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2.2.3.4.1 The potential for detainees to self-harm is minimised, to the fullest extent possible. |
(a) Evidence is provided to the Department that strategies are in place and implemented to minimise the potential for detainees to self-harm. |
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2.2.3.4.2 Detainees who self-harm or attempt self-harm are provided with medical assistance as soon as possible and, post-incident, with ongoing appropriate treatment including but not limited to psychological/psychiatric assessment and counselling. |
(a) No substantiated instance of any such detainee not being provided with appropriate and timely treatment. |
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2.2.3.5 Hunger strikes
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2.2.3.5.1 Hunger-striking detainees are provided with health care consistent with the law and standard medical and psychiatric practices, and commensurate with their needs, including, where required, medical treatment. |
(a) The Department is provided with evidence that a strategy is in place and implemented for identifying whether detainees are taking adequate sustenance. (b) No substantiated instance of a hunger-striking detainee not being provided with health care in an appropriate, lawful, and timely way. |
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2.2.3.5.2 Post-incident and as required, detainees who have been on a hunger-strike have access to ongoing medical treatment, including but not limited to psychological/psychiatric assessment and counselling. |
(a) No substantiated instance of a detainee who has been on a hunger strike not having access to ongoing medical treatment.” |
36 GSL discharged its contractual obligation to provide the required health care services to the Commonwealth by, in turn, contracting out the provision of those services to two companies, Professional Support Services (“PSS”) which provides psychological care services, and International Medical Health Services (“IHMS”) which provides general medical services. The actual sub-contractual arrangements between these various parties are not in evidence. What is clear is that at all relevant times IHMS in turn contracted with others to provide medical services at Baxter: a Port Augusta medical practice, Carlton Medical Practice, was engaged to provide general practitioner services; and a psychiatrist, Dr Andrew Frukacz, a private practitioner from Bathurst in New South Wales, was engaged to provide psychiatric services.
GENERAL SERVICE PROVISION: GSL AND DIMIA
37 The Commonwealth’s contract with GSL contemplated that DIMIA would maintain its own staff onsite at Baxter. Ms Kannis (the DIMIA Manager at Baxter) has given evidence that she has 12 DIMIA staff members under her of whom 8 perform administrative functions which include monitoring GSL’s compliance with its contractual obligations and standards while the remaining 4 are responsible for the case coordination of all detainees residing at Baxter. These case coordinators have not been a significant presence in the evidence given in these applications notwithstanding that Ms Kannis describes their “aim” as being to see their respective case detainees regularly (i.e. every four to six weeks) “to ensure their needs are being met”. However, Ms Kannis did go on to observe that detainees are not obliged to meet with case coordinators.
38 Additionally, DIMIA officers both from Canberra and onsite conduct scheduled formal audits of the facilities and services provided by GSL. It is Ms Kannis’ evidence to which I will return below that this formal audit program has not as yet been extended to the psychiatric and psychological services provided at Baxter.
39 Mr Saxon has held the position of General Manager since November 2004. GSL maintains under Mr Saxon, variously, a night shift staff of 24 persons and a day shift staff of 53. The evidence is that, consistent with the Detention Services Contract, GSL staff patrol the centre; are the persons most seen by detainees in their residential compounds; maintain order and security in the centre; and man the Management Unit and Red 1 when either is in use. It would appear that much that is done by the GSL staff must comply with DIMIA prescribed “Operating Procedures” some number of which have been referred to, or actually put, in evidence. As noted earlier the use of, and the transfer of detainees to, the Management Unit but not Red 1 are governed by such procedures.
HEALTH SERVICE PROVISION: IHMS AND PSS
40 IHMS provides Baxter’s medical centre with a health services manager, six registered nurses with a varying range of work experience (which in the case of two includes mental health and psychiatric nursing) and one enrolled nurse. The general practitioner services provided through its sub-contractor, Carlton Medical Practice, consists of one general practitioner (“GP”) on site at Baxter from 1 pm to about 4 pm on week days. Additionally a GP is on call and available for telephone consultations and to attend Baxter or the Port Augusta hospital as necessary outside business hours. No officer or employee of IHMS gave evidence in these proceedings. Psychological and counselling services are provided by PSS. No “on the ground” psychologist or counsellor gave evidence.
(i) The General Practitioners
41 Dr Bezhad Schroff, who is a principal of the Carlton Medical Practice, gave evidence of the GP services provided at Baxter. He indicated that as various GPs from the practice attended Baxter for detainee consultations, each’s consultation notes were kept in a common electronic file that was accessible to the other GPs. That file is not kept by the Carlton Medical Practice but by IHMS at Baxter (“the IHMS notes”). The notes kept by PSS psychologists and counsellors on the PSS electronic file (see below) are sometimes provided to the GPs for a consultation, and sometimes not.
42 The detainees to be seen by a GP at a particular consultation are not determined by the medical practitioner in question. Dr Schroff said this was a matter of concern for him “but that is not for me to decide”. While he makes recommendations about who needs care, whom he sees “is a different scenario”. Each day the visiting GP is provided with a list of patients prepared, it would seem, by the IHMS nurses and the PSS staff: “they will bring us the patients that they want us to see”. Asked whether, if a particular patient needed to see a GP because his condition has got worse or his depression was not responding to treatment, that person’s name would be on the consultation list, Dr Schroff replied:
“I would say as confident as I could have the necessary – I would say faith in the staff that is working with me.
…
My confidence is directly proportional.”
He went on to indicate that:
“… there are times where we have asked a patient to be seen and they may or may not be on the list.”
43 Dr Schroff’s understanding of how patients were referred to the GPs is supported in the following passage of Mr Saxon’s cross-examination in the context of mental health service provision to a detainee threatening self-harm:
“Do you know that the Mental Health Act in South Australia allows only a general practitioner or a psychiatrist to detain someone under the mental health legislation in this state?---I’m aware of that, yes.
So you know that if someone is threatening to harm themselves, it is only a doctor – whether it be a psychiatrist or a general practitioner, but only a doctor – who can detain someone? You know that?---I’m aware of that, yes.
Do you say it’s not standard operational procedure for someone who has threatened to harm themselves, or take their lives, to be referred to a doctor or a psychiatrist? Where does that standard procedure come from? Is that written down somewhere in relation to how you operate?---Not that I’m aware of. The referrals are made by the psychologist, IHMS and our case manager. Now, more often than not the doctor becomes involved somewhere down the track. I’m not aware of any document that says they will not go and see the doctor. I mean, you’ve got health professionals who are employed. If they are concerned then they will refer to the doctor.”
44 The GPs provided general practice mental health treatment. Dr Schroff indicated that he never spoke to the visiting psychiatrist, Dr Frukacz, and was never at Baxter when he was there. He acknowledged that the GPs were seeing a “lot of patients who were under psychiatric medication” and that they would review that medication in light of their assessments. They participated in the psychiatric treatment of detainees. He considered that about 10 to 15 per cent of the detainees were on major anti-depressant medications. He also acknowledged that the GPs were the only medical practitioners who were regularly at Baxter and who were able to make an order for the detention of a mentally ill person under s 12(1) of the Mental Health Act.
(ii) The Psychiatrist, Dr Frukacz
45 Dr Andrew Frukacz, who resides in Bathurst New South Wales, has a contract with IHMS to provide psychiatric services to Baxter detainees. He is the only medical practitioner contracted to provide such services and he was not aware of any contingency plan for another psychiatrist to visit in his absence. He has been asked by DIMIA and IHMS to visit more often but is unable to do so. While it is his evidence that he visits every six to eight weeks on Saturdays, his actual visits in the periods of present relevance were in August 2004, November 2004, 12 February 2005, 19 February 2005 (described as “not normal”) and 29 March 2005 (for the purposes of this litigation). His next visit was booked for 16 April. IHMS staff arrange who he is to see prior to his arrival at Baxter and sometimes an appointment to review a particular patient is arranged at his request. He sees 10 to 15 patients per visit.
46 He considered that the service he could provide Baxter at the moment was “not ideal” but was the best he could provide in a remote community. In terms of regularity of follow-up consultations a detainee would not get the same standard of care as would private patients in his home town. He considered that:
“… the distinction has to be made between what is available in particular areas because, certainly where I work – and it is predominantly rural remote areas – that is sufficient and we do have to rely on other staff to carry through in the intervening period. I don’t think we can compare realistically the care that people get in a remote area with the resources that are available in a major metropolitan area.”
47 Dr Frukacz accepted in relation to long-term detainees at Baxter that a large percentage of them have psychiatric illness and that this was greater than in the general community. He had between 20 and 30 patients at Baxter at the time of these proceedings and they were mostly long-term detainees.
48 It would seem that Dr Frukacz has not personally made an order under s 12 of the Mental Health Act for the detention in Glenside of a mentally ill person. He has, though, made recommendations in his reports that a person may be assessed and treated in a hospital environment if they do not improve. He would expect that the PSS people would act on his instructions but he accepted that he was aware in relation to a detainee not a party to these proceedings that a recommendation he had made in November had not been carried out by February. He accepted that he relies all the time on the opinions of the professional staff who work at Baxter.
49 Dr Frukacz indicated he was aware of criticism in the psychiatric community at large about the level of psychiatric care in Baxter. He would like it to be better but he would equally like such care to be better in rural and remote towns. He indicated he had never been consulted by DIMIA or by GSL about how the conditions of detention or the condition of the health service might be changed to improve the mental health of detainees.
(iii) The Psychologists and Counsellors
50 PSS employs a full-time psychologist, Ms Margaret Cowper, at Baxter. She was formerly employed in the same capacity by Baxter’s previous detention services provider, Australasian Correctional Management Pty Ltd. She is on duty week days from 9am to 5pm. She conducts or else attempts to conduct individual consultations with detainees and is available for appointment by detainees.
51 Though Ms Cowper figures significantly in the documentary records that have been tendered (many being her own notes of consultations and attempted consultations with S and M), she was not called to give evidence. I will refer again to this matter.
52 The evidence, such as it is, of the psychological services provided at Baxter was given by Ms Hinton, the clinical director of PSS who is based in Melbourne and visits Baxter every six to eight weeks. She was the direct supervisor of Ms Cowper. She described Ms Cowper’s role as including the following:
“9.1 conducting individual psychological assessments, preparing psychological reports and offering treatment to detainees as required. Referrals to Ms Cowper can be made by the counsellor, IHMS, the General Practitioner, GSL case officer or DIMIA officer. Detainees wishing to see Ms Cowper can make a direct appointment/self-referral;
9.2 attending team meetings and liaising with PSS management, detention staff and the health services team at meetings to discuss detainees with special needs, including meeting with the Suicide and Self Harm (“SASH”) watch team and special needs case management meetings are held once to twice per week for detention centre and medical staff to discuss special categories of cases involving children, women, detainees with notable medical and/or psychological conditions, elderly detainees, detainees at risk of self harm, long term detainees and the like;
9.3 case management including planning, referral and liaison with other health care specialists; …”
53 Between April 2004 and January 2005, PSS employed Mr Adam Micallef as a full-time psychologist at Baxter. PSS also employs a full-time counsellor, Ms Robyn Walker, at Baxter. Among her responsibilities is the making of daily visits to the detainees’ compounds. She is thus able to observe detainees on a daily basis.
54 PSS maintains an electronic file in relation to each detainee which records all case notes created by the psychologists and the counsellor (“the PSS notes”). These notes do not record all contact between PSS staff and detainees.
55 It is Ms Hinton’s evidence that PSS records are not accessible by other staff at the detention centre, though information held by PSS is exchanged with detention staff at regular special needs case management meetings and through other informal discussions, Ms Kannis’ evidence on this matter is somewhat different:
“Do you have access to the PSS notes?---Yes, I do.
Are you sure about that? You can actually see the PSS notes, you and DIMIA? You can see them?---Well, I can go across to the PSS office and have a look at them on the system or – I haven’t got direct access to the system, but if I request I can be shown them and if I request printouts I receive those.
Is that a matter of course? Is that something you normally do?---In cases that come to my attention, I do.
And there’s no problem with handing those notes over? The PSS are quite – they’re quite open with handing over the notes to you?---Well, PSS want to know what use will be made of them, because they’re very careful about confidentiality of the reports, but they have no problem handing them over to DIMIA.”
56 I should indicate in passing that I have not found Ms Hinton’s evidence to be of assistance in resolving the issues that arise in these proceedings. She was not a treating psychologist in either matter. Her evidence was general in character and lacked familiarity with detail.
(iv) Accessing South Australian mental health services
57 Ms Kannis’ first affidavit sets out in some detail the options available to the health services at Baxter in the event of “an emergency psychiatric situation”. These included the possible accessing by the GPs or a psychologist of psychiatric assessment for a detainee on the recommendation of the on-call psychiatric registrar of the State’s Rural and Remote Psychiatric Health Service. I will later note the general significance Ms Kannis appears to have attributed to the availability of this option.
58 For her part Ms Hinton made several quite general references to the psychologists being able to arrange a psychiatric assessment in the absence of Dr Frukacz: “[w]e’ve got a relationship with the South Australian Mental Health Services”. She did not enlarge upon or illuminate the nature of that relationship.
AUDITING/MONITORING THE PROVISION OF PSYCHIATRIC AND PSYCHOLOGICAL SERVICES
59 As I have already indicated, the Detention Services Contract envisages that there be auditing and monitoring of the detention services GSL has contracted to supply. There has been general evidence given concerning the “oversight”, “monitoring” and “investigation” that occurs. Save in relation to electronic monitoring and visual observation by Baxter staff, the processes that have been described are for the most part ad hoc involving responses to, or investigations of, particular incidents etc., or else compliance with specified procedures, for example, record maintenance.
60 The evidence of DIMIA’s actual auditing of services by a process of formal examination and verification of performance goes no further than that DIMIA instituted a formal audit of services only from January 2005. A Health Care Audit was completed in February 2005. That audit did not deal with the provision of psychiatric or psychological services at Baxter. While Ms Kannis has said that DIMIA makes frequent inquiries about the treatment of individual detainees and that matters of concern are brought to the attention of GSL at weekly monitoring meetings, there is no evidence at all of any critical evaluation having been made by DIMIA of the adequacy and effectiveness of the medical, psychiatric and psychological services provided to detainees. In these matters, Ms Kannis has said she has to go on the opinion of the experts who provide the services.
61 Insofar as concerns GSL’s auditing of its sub-contractors, it is Ms Hinton’s evidence, supported by Mr Saxon for the period that he has been General Manager at Baxter, that there has been no audit of PSS’s services. Ms Hinton said that PSS has monthly sub-contractor meetings where any contract issues are discussed: “[t]hat’s the main way that they, I guess, monitor our service”.
62 Mr Saxon’s evidence is that there had been no “physical audit” conducted of IHMS’s psychiatric services though GSL did audit compliance with operating procedures “that are set down and agreed to by DIMIA and GSL” but that, “at this point in time, the health and PSS procedures have not yet come to be [sic]”.
63 As earlier indicated, Dr Frukacz has at no stage been consulted by DIMIA or by GSL about how the conditions of detention or the condition of the health services might be changed to improve the mental health of detainees.
64 Equally it is Dr Schroff’s evidence that he has never been consulted by DIMIA or the health service staff about the provision of psychiatrists to Baxter when Dr Frukacz was not available or about the availability of a psychiatrist to come and assess people.
THE SOUTH AUSTRALIAN MENTAL HEALTH ACT
65 Section 12 of the Mental Health Act provides the backdrop to these proceedings, the premise of which is that a detention order made under it will result in the psychiatric assessment of the applicants at Glenside which is an approved treatment centre under the Act. The section provides (insofar as presently relevant) that:
“Orders for admission and detention
12.(1) If, after examining a person, a medical practitioner is satisfied –
(a) that the person has a mental illness that requires immediate treatment; and
(b) that such treatment is available in an approved treatment centre; and
(c) that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons,
the medical practitioner may make an order for the immediate admission and detention of the person in an approved treatment centre.
(2) An order under subsection (1), unless earlier revoked, expires three days after the day on which it is made.
(3) A person admitted and detained in an approved treatment centre pursuant to an order under subsection (1) must be examined by a psychiatrist -
(a) if it is practicable for the examination to take place within 24 hours of admission – within that period; or
(b) if it is not practicable for an examination to take place within 24 hours of admission – as soon as practicable after admission.
(4) When the psychiatrist has completed the examination –
(a) he or she must, if not satisfied that the continued detention of the patient is justified, revoke the order; or
(b) he or she may, if satisfied that the continued detention of the patient is justified, confirm the order.
(5) If an order for detention has been confirmed under subsection (4), a psychiatrist may, before the order expires and after examination of the patent (which should be carried out during the 24 hours prior to that expiry), make an order for the further detention of the patient for a period not exceeding 21 days commencing on that expiry.”
66 The Act makes further provision for continuing detention of a patient.
BAXTER CRITICISMS
67 Adverse comment about the Baxter mental health care system has emerged in a variety of ways in this matter. First, reference has been made on a number of occasions to the situation of Ms Cornelia Rau while she was detained in Baxter. I simply note that I have taken no account of evidence concerning Ms Rau. It is no assistance to me. Secondly, I have taken no account of alleged media criticism of the mental health services at Baxter by former Baxter employees. Those ex-employees have not given evidence and the substance of their criticisms has not been revealed. Thirdly, in seeking to impugn the impartiality of two psychiatrists called by the applicants, Dr Jon Jureidini and Dr Michael Dudley, the respondents have tendered an article, an interview and a letter to the editor for which one or other or both is responsible which are highly critical of, amongst other things, the mental health care provided at immigration detention centres in Australia. I refer below to my view of the impartiality of these witnesses. Here I merely wish to note the fact of them and to note two of these publications which, I infer, were known to the Commonwealth within a reasonable time of their publication.
68 The first of these was a letter by a group of psychiatrists (including Drs Jureidini and Dudley) published in the Australian and New Zealand Journal of Psychiatry in November 2004 which amongst other things noted with endorsement that the College of Psychiatrists (i) have had a sustained and outspoken stance criticising current immigration detention policies; (ii) has called repeatedly for an independent review of the conditions in detention centres and their impact on detainees’ mental health. It notes that the latter appeal has been ignored and that there has been no indication that the Australian Government has listened to the advice of any College member about their concerns regarding immigration detention.
69 On 11 February 2005 the “Australian” newspaper published an interview with Dr Jureidini under the heading “Baxter ‘failing mentally ill’” in which Dr Jureidini is reported as having said, amongst other things, that Baxter detention centre staff were unable or unwilling to diagnose acute mental illness and to request suspected cases be removed to a South Australian mental health facility.
WITNESS ISSUES
70 The independence and/or impartiality of various witnesses have been called into question in each of the proceedings.
71 As I have noted above, the respondents have impugned the impartiality of the medical practitioners called by the applicants on the basis that they appear to be advocates for a cause. In particular it is said of Drs Jureidini and Dudley that they hold and have publicised the view that indefinite immigration detention jeopardises mental health. Their respective reports in these proceedings recommending the assessment of the applicants at Glenside must, it is said, be discounted because of this.
72 For my own part, having listened to the evidence of these two specialists, to the reasons for their view, but particularly to the bases for their diagnoses of, in Dr Jureidini’s case, both S and M and in Dr Dudley’s case, of S, I am well satisfied that the challenge made to their impartiality is without foundation. As many professionals recognise on a daily basis, they are called upon to, and do, make professional and impartial judgments in relation to their area of expertise notwithstanding that they entertain strong, even passionate views about the subject matter of their judgment or of the context in which it is to be made. I consider that the actual professional impartiality of the two doctors has not been compromised by their publication of their views.
73 The independence of the respondents’ professional witnesses has likewise been challenged in large measure because of the contractual and employment arrangements that are said to underpin their service provision. On the material before me, this imputation cannot fairly be made against either of the respondents’ medical experts who were called (Dr Frukacz and Dr Schroff) or against Ms Hinton.
74 I have already indicated that I have found Ms Hinton’s evidence of limited assistance for other reasons. I should add I have taken a like view of aspects of Ms Kannis’ evidence. Her evidence is affected markedly, as I will indicate, by rationalisation and reconstruction, by unwarranted or inappropriate faith and hope in others and by inconsistency.
THE SETTINGS OF THE CLAIMS
75 There are both similarities and differences in the circumstances giving rise to the claims of each applicant. As the respective medical conditions of the applicants and the psychiatric diagnoses made and treatments provided them are central to their cases, it is not necessary to give a particularly detailed factual account of the events and circumstances of their detention.
(i) S’s chronology
76 As earlier indicated S has been in immigration detention for nearly five years in various locations in Western Australia before being sent to Baxter.
77 S had committed acts of self-harm on a number of occasions prior to December 2004. These involved him variously in cutting his arms and chest, apparently with a razor while detained in Perth and cutting his head by putting it into a window while in Baxter. The latter incident was a consequence of his damaging a shower out of frustration (“I just lost it”) and then being taken by GSL guards whom he said beat him with batons.
78 As a result of that incident he was taken to the Management Unit for what he described as “punishment” in what he also described as “solitary confinement”. He thinks he was there for over a week.
79 In April 2004 S was involved in a further incident concerning the proposed conduct of his brother’s wedding. There is a conflict in the evidence between S and the Commonwealth and GSL over the genesis of this incident and of the steps that were taken to quell it. It is unnecessary to resolve that conflict. Its consequence was that he was again placed in the Management Unit for a week after which he was put in Red 1 where he was kept for about two months. In his oral evidence he described Red 1 as “terrifying”. He indicated he was frightened of going either to Red 1 or to the Management Unit.
80 Towards the end of 2004 S’s own marriage plans fell through. He became very distressed and sought assistance from the psychologist, Mr Micallef. He was put into the Management Unit for one day and then on SASH watch.
81 In early December 2004 he says he again engaged in an act of self-harm this time involving cutting his neck following alleged ill-treatment of a friend by GSL guards. The following day (i.e. 7 December 2004) S together with M and P (who also instituted similar proceedings to the present) commenced a hunger strike on the roof of the gymnasium. The roof top “protest” lasted until the night of 16 December 2004. A number of detainees on the ground also participated in the hunger strike. There is again a conflict between S’s and the respondents’ evidence as to alleged harassment of the roof top protesters during the strike. It is unnecessary to resolve that conflict.
82 S denied he engaged in the protest to advance his prospects of obtaining a visa. The roof top protesters came down in circumstances outlined in M’s case. All three participants were adversely affected physically by their experience, this involving at least dehydration and severe sunburn. They were taken to Port Augusta hospital for treatment for about two days before returning to Baxter where S was again on SASH watch.
83 The arrangement which resulted in the protesters coming down from the roof included their requirement that they not be placed in the Management Unit or Red 1. Such has not occurred.
84 On 30 December 2004 S was one of the 11 detainees involved in the hunger strike who was seen by one of a group of medical practitioners (two psychiatrists and a GP) who attended Baxter voluntarily for the purpose of preparing reports for the immigration lawyers and migration agent who were acting for these detainees. The report of Dr Dudley who assessed S will be referred to in detail below. Suffice it to say here that Dr Dudley considered that “[b]ecause of the severity of his condition, he needs further psychiatric treatment, preferably in an inpatient facility. He also needs a thorough medical review”. This was the first examination of S by a psychiatrist since his arrival in Baxter. He had been on antidepressant medications prescribed by one of the GPs attending Baxter in December 2003.
85 S was again placed on SASH watch on 12 February after reportedly indicating to a GSL guard that he may cut his throat in two days. He saw Dr Frukacz on 12 and 19 February 2005 but did not attend a further appointment arranged for 29 March 2005.
86 He filed his application in these proceedings on 31 January 2005. As earlier noted, S has since been transferred from Baxter for assessment of his mental illness. That occurred after the commencement of the trial and after he had given evidence.
(ii) M’s chronology
87 M, as noted earlier, has been in immigration detention for about five years at, variously, Curtin in Western Australia, then at Woomera and finally, since early 2003, at Baxter. He has not been in a non-immigration detention facility save for several days spent in a holding cell in Port Augusta after a fire at Woomera for which he had no responsibility. At Baxter he has not been taken out of the detention centre except for medical treatment.
88 His evidence is that he has had bad experiences with GSL guards. He has been placed in the Management Unit on one occasion. He went on a hunger strike for four days. He was assaulted while he was there. Several guards were later dismissed because of this incident.
89 M has some history of property damage which he attributes to “nervous pressure”, the most recent incident involving destruction of a camera in the officers’ room and property in the mess. It appears he has not had measures taken against him because of such incidents.
90 He was a participant in the roof-top protest with S and P in December 2004. He indicated his purpose was “either to get some sort of clarification for my future for myself or alternatively just finish everything and kill myself”. M acted as spokesman for the group on the roof. He obtained the assurance from Ms Kannis that they would not be sent to the Management Unit or Red 1 when they came down. He also asked Ms Kannis for help with the Minister in the grant of visas. It is M’s evidence, but not Ms Kannis’, that she said she would take their cases into consideration. Ms Kannis’ evidence was that she would do all in her power to help them at the detention centre but that she would not involve herself in the visa process. I would note in passing that I accept Ms Kannis’ evidence in this matter, although I consider it likely that, in the circumstances, M may have misapprehended the nature of the assistance being offered.
91 On 30 December 2004, M was assessed by one of the group of medical practitioners who voluntarily came to the centre on that day, in his case, by Dr Richards, a general practitioner. Dr Richards’ report is referred to in detail below. Suffice it to say he diagnosed M as “profoundly depressed and requires care in a psychiatric facility”.
92 M was first prescribed antidepressant medication in May 2003. He did not see a psychiatrist until his consultations with Dr Frukacz on 12 February and 29 March 2005. On 29 March he also was assessed by Dr Jureidini, a psychiatrist engaged by M’s legal advisers, for the purposes of preparing a report in these proceedings. That report is quoted extensively below.
93 M has been on SASH watch regularly since the roof top protest. During March 2005 M told prison guards and the psychologists that he now has a large supply of pills which he intends to use if he has “bad news”. One such possibility of bad news was lack of success in these proceedings. His room has been searched twice without success. M has said they are stored elsewhere. He has shown one of the pills to a guard.
94 In mid-March 2005 he was mistakenly informed that he could reapply for a visa under s 48B of the Migration Act.
95 He filed his application in these proceedings on 1 February 2005.
THE APPLICANTS’ MENTAL HEALTH AND TREATMENT
96 Each applicant’s condition has evolved and deteriorated over the period of present relevance. For this reason it is necessary to provide in the case of each of them some description of their health prior to the roof top protest, though it is the period after that protest that is of particular concern in these proceedings. Again it is necessary to consider the two applicants separately although they share much in common both in experience and in attitude.
97 As to the latter I would note because of its present relevance that both gave evidence that they derived no help from the psychologists and that they did not trust them because they were employed by GSL. I accept that this has represented their attitude for some time now and while each on occasion has utilised the services of the psychologists they have more commonly rejected counselling by a psychologist.
98 The evidence of their health is drawn in each case, first, from their own evidence and then from their PSS notes, IHMS notes and medical reports.
(i) Applicant S
99 S’s own description of his personal condition is one of progressive physical and mental deterioration. It is unnecessary to describe the former. His evidence otherwise is that he thinks about self-harm sometimes; he has trouble remembering things and concentrating and he trembles and shakes. He has difficulty sleeping and has nightmares. He usually only eats one meal a day. He first asked to see a psychiatrist in around October 2004.
100 S’s IHMS notes for the period from September to December 2004 indicate that from the beginning of September until late October 2004 he sought and then waited for a medical consultation with a GP. On 26 October it was acknowledged he had been waiting for weeks and that he needed “to be seen at earliest clinic”. This occurred the same day.
101 S saw Dr Abeyratne who noted that he complained (inter alia) of depressed mood and low self-esteem and was feeling worse. The GP suggested an appointment with a psychologist and that he be reviewed in 10 days. He in fact had seen a psychologist earlier the same day. There is no note of his seeing a psychologist again until 19 January 2005.
102 S’s name was put in the GPs’ appointment book on 7 November and he was seen by Dr Abeyratne on 10 November. The IHMS note of that consultation was as follows (with emphasis added):
“Depressed.
Not happy about Avanza. Unable to cope with the stress.
Anxiety+
C/O low back pain more than 1 year. Radiation of pain to both lower limbs. No numbness or parasthsia of lower limbs. Reflexus of lower limbs are normal
Counselling offered.
Changed the medication to Zoloft.
Started Diazepam for 1/52.
Rerefered [sic] to the Psychologist.
Xray lumboscaral spine ordered.
Anelgesis started
Need to be shown to the Psychiatrist.”
103 On 18 November 2004 he sought assistance in the compound clinic; he was observed to be “very distressed/anxious”; he complained of the effects of his medication; and the IHMS note recorded: “For appt with Dr”. That appointment appears to have occurred on 2 December 2004 when he was seen by Dr Abeyratne. The IHMS notes for that day (emphasis added) record:
“For review.
still depressed+++
Patient has major depression with sucidal thoarts [sic]
Counselled.
Explained that increase of dose should help him.
Refered to a psychatrist [sic].
Refered to the psychologist [sic].
Incresed [sic] Zoloft to 100mg & added Diazepam for a 1/52.”
104 On 6 December S was seen in the medical centre. He had self-administered razor lacerations to both sides of his neck (superficial) and across his chest (deeper). The following day S joined the roof top protest. He was then on SASH watch. After the ending of the protest S was taken to the Port Augusta Hospital. The medical records of S’s treatment at the hospital were not provided to the health services at Baxter. He was seen by a GP on 19 December on his return from the hospital and was given “stat dose valium and tramal”.
105 As earlier noted, on 30 December S was assessed by Dr Michael Dudley, a psychiatrist. Dr Dudley did not have access to any of the notes of those who had been treating him prior to preparing his report. While he was aware DIMIA employed psychologists he was not aware there was a psychiatrist in attendance at that time. The essence of Dr Dudley’s report was as follows:
“I thought he was at moderate to high risk of suicidal behaviour or suicide in the short to intermediate future. He was insightful about his situation.
I think that he suffers from severe major depression and PTSD [post-traumatic stress disorder], with dissociative features. From his own account and from knowledge of other similar cases, I believe that prolonged detention has contributed substantially to inducing his depression, and is making his condition worse. I believe he should not be living in detention, but rather should be supported in the community. Because of the severity of his condition, he needs further psychiatric treatment, preferably in an inpatient facility. He also needs a thorough medical review.”
106 I will refer below to the challenges made to Dr Dudley’s evidence at the trial.
107 S presented to the medical centre on 11 January 2005 wanting among other things to “come off Zoloft”. On 12 January he informed the psychologist, Ms Cowper, he did not want to take his medication anymore. She suggested an appointment with a GP. This occurred two days later when he reported his change of medicine request to Dr Gequillana but was advised to continue his medication.
108 S was again placed on SASH watch on 12 February 2005. On 12 and 19 February S was reviewed by Dr Frukacz. The notes of his diagnoses and proposed treatment on these two occasions included, respectively:
“A. major depression.
B. Cease Sertraline as getting side effect.
Try Citalopram 20 mg daily.
Add 500 mg Epilim Nocte to augment efficacy and deal with nightmares and poor sleep.
Monitor mood over next 2 weeks.
If Citalopram not helping try Efexor XR.
However, if these measures not working would need further assessment re in-patient treatment with a view to ECT.”
…
Remains depressed – also getting side effects.
Reduced Citalopram to 10 mg more.
Continue with 500 mg Epilem Nocte.
If not able to tolerate Citalopram or not effective after further 2 wks change to Efexor XR starting at 75 mg mane.
If not helping look at hospital assessment and treatment as per previous notes.”
109 Dr Frukacz prepared an affidavit for these proceedings in which he outlined the review, the materials he relied upon and his diagnoses and proposed course of treatment. That affidavit included his own notes of his interviews with S. The psychologist, Ms Cowper, was also present and took notes. I should indicate in passing that I regard her handwritten notes as more accurate and complete than Dr Frukacz’s. Dr Frukacz did not dissent from this view.
110 In preparing his affidavit, Dr Frukacz indicated he reviewed the notes taken by the nurses, the counsellor, the psychologist and the GPs at Baxter “since at least December 2004” as well as his own notes. He also said in evidence that he had seen the reports of Drs Dudley and Richards before he saw S and M. His conclusions on S include the following:
“24. I have diagnosed S as having major depression. I was more concerned about S than M. S presented more with a given up mood, he was slowed down, withdrawn, with psycho-motor retardation, motionless, lack of expressiveness and staring. Whereas M’s complaints are, in a sense, a positive factor. It was S’ absence of complaints about the way he was treated that lead me to be more concerned. S reported a family history of depression which may be significant given there is a generic pre-disposition to developing depression.
25. I recommended monitoring over the next two weeks. I intended that he be kept under surveillance and his mood and particularly his level of activity, level of interaction, his eating, his weight and sleep pattern monitored. I recommended a couple of trials of antidepressant medications and augmented that with another medication called Alanzapine. I was also concerned about the images S had been getting of killing his sister and that he was a dog – they had a flavour of worthlessness that we can see in some of the more severe depressions and he was saying almost suicidal things such as ‘why should I suffer’ and comments about slashing his neck.
26. Electro compulsive therapy (ECT) is a more robust form of treatment which is very effective for severe depression as it tends to work where antidepressants are not affective and also works more quickly. If on review, S needed ECT that would be a reason to move him to Glenside as that is probably the only psychiatric treatment that is not available in Baxter. However, that is not necessary at present and I have recommended treatment of monitoring and medication trials.
…
29. On 19 February 2005 I reviewed S and still did not believe inpatient assessment was required. Such decisions do not need to be made in haste and logistically cannot be made in haste. In any event there were still other things that could be done such as changing antidepressant medications, etc. We call it a hierarchy of treatments where we start with something that is least invasive. An ECT action is invasive and can be quite frightening to people. We would only do that if other measures were not working.
30. Observations of S’ reaction to the section 48B Notice, as reported in the medical notes on and since 3 March 2005, make me wonder how significantly depressed, in a biological way, S was and is. Objective observations are an important indicator and I consider the consistency of a patient’s presentation with those objective observations. My review of the PSS notes since 19 February 2005 alleviate some of my concerns about S’ condition as they suggest that S is now moving around, socialising and interacting with others.
31. I have reviewed the IHMS notes concerning S generally and in particular since 12 February 2005. I note that S was assessed on 3 March 2005 as having improved on hearing ‘good news’. Further, on 10 March 2005 the applicant requested an increase in medication. I consider these to be a positive signs. I am satisfied that my instructions are being carried out at Baxter and that S’ medications have been adjusted appropriately. I did not anticipate or expect anything more would have been done at this stage.
32. In my notes on 19 February 2005 I noted that if my recommended actions were not helping then I would look at hospital assessment and treatment. I did not intend this would result in automatic transfer. It is not possible for me to be hands on at Baxter all of the time. I see myself as a consultant. The day to day medical care is in the hands of the medical staff on site and they can refer back to me as required. In light of my review of the notes of the medical and psychological care provided or offered to S since 19 February I would not expect him to have been transferred to Glenside and I still see no reason to transfer S at this time. In my experience, even if I was to say this person should go into hospital that would not necessarily happen the same day or the next day as there would have to be a bed available at Glenside.
33. S did not attend the consultation arranged for Tuesday, 29 March 2005. It is not possible to make any comment about significance the non-attendance [sic] without knowing the circumstances relating to the same.
Current treatment at Baxter
34. The treatment I recommended for M and S, of altering medications and ongoing review with further possible variations to medications is consistent with standard psychiatric practice.
35. If M and S’s condition is not being effectively managed by medication and psychological intervention, it may be necessary to consider inpatient assessment and treatment. However, M and S’s current state of health does not warrant inpatient care at this time. We will continue to monitor their progress and trial various medications.
Summary
36. M is significantly depressed and is anxious with feelings of despair largely related to his fear of deportation.
37. S has a major depression.
38. M and S are receiving appropriate treatment at Baxter at this time.
39. M and S may be at some risk of self harm. That risk is being appropriately managed at Baxter.
40. M and S do not require hospital assessment or treatment at this time.”
111 I will later refer to the challenges made to Dr Frukacz’s views at the trial. I would also note in passing that a significant issue in these proceedings relates to the period that elapsed between the roof top protest and the provision of psychiatric services to S and M and to the reasons for that delay.
112 Though S remained on SASH watch after 12 February 2005 and he was otherwise observed while in the detainee compounds, it appears from the PSS notes that he declined counselling thereafter though he was visited by and spoke to the psychologist, Ms Cowper, on a number of occasions. The psychologists’ observations over the period were that he interacted with other detainees, had inter-compound visits and by early March he appeared in an elevated mood because of positive news he had received from DIMIA concerning his case.
113 On 22 February 2005 a GP, Dr Schroff, saw S who was feeling depressed and angry and requested a change of medication. It was recommended he be reviewed in 10 days. Neither this consultation or that of Dr Schroff on 3 March is recorded in the IHMS notes. At the latter consultation Dr Schroff recorded an improvement in S’s state of mind which was attributed to the “good news” from DIMIA.
114 S was next seen by a GP on 14 March and thereafter on 6 April when he was assessed by Dr Schroff under the Mental Health Act. In the interim he refused (on 29 March) to see Dr Frukacz. The reason he gave for so doing is that Dr Frukacz was not working for him but against him: “[h]e didn’t come to make me feel better, he just come to write his report and go.” He was moved to the Royal Adelaide Hospital on 7 April to await transfer to Glenside.
115 It is Dr Schroff’s evidence that when he acted under the Mental Health Act, he was acting independently and not on Dr Frukacz’s instruction although he was conscious of the comment in Dr Frukacz’s notes which accorded with his own view that if S’s depression did not improve he should be sent to Glenside. While it is not clear when Dr Schroff was provided with Dr Jureidini’s report, he did not have it when he prepared his affidavit of 4 April 2005 and it seems probable he did not read it before he made his decision on 6 April 2005.
116 Distinct from his assessment and treatment at Baxter, S was assessed by Dr Jureidini, an Adelaide psychiatrist, on 29 March for the purposes of these proceedings and at the instigation of S’s legal advisers. Dr Jureidini is Head of the Department of Psychological Medicine at the Women’s and Children’s Hospital. He also does essentially back up work at Glenside. He has assessed 50 to 60 detainees in the Baxter and Woomera detention centres; and has examined and treated about half a dozen adults and accompanying children at Glenside who have come from Baxter.
117 At the time he assessed both S and M, Dr Jureidini had been supplied with their Baxter health files, the reports of Drs Dudley and Richards and the handwritten notes of Dr Frukacz of his observations of S and M of 12 and 19 February which included his diagnosis of “major depression”. His own report included the following:
“[Dr Frukacz] made a number of recommendations concluding ‘however, if these measures are not working would need further assessment re in-patient treatment with a view to ECT’.
In essence, I could find no evidence of improvement in Mr S well-being since he was last seen by Dr Frukacz.
…
It is quite clear that nothing can help him whilst he is in Baxter.
In answer to your specific questions:-
1. Is this man suffering from a mental illness?
Yes. Severe depression with anxiety symptoms. His Hamilton Depression Rating Scale Score is 39; anything above 23 is judged ‘very severe depression’.
2. Is mental illness being treated appropriately?
No. I agree with Dr Frukacz that his long standing depression has got beyond the resources of the Baxter environment and that hospitalization is required. Unless he can be reassured that his release on a visa is imminent, he is at significant risk in his current environment.
Severe psychiatric illness requires a combination of medical and psycho-social intervention that needs to be frequently monitored for its effectiveness by a psychiatrist. The management of a man at this current state of illness requires review by a psychiatrist on a daily basis, at least in the first days. For example, in the current environment, Mr [S] is subject to frequent changes of medication regime without adequate monitoring and without each drug being given an adequate opportunity to work (even though they are highly unlikely to be effective in this environment even if ideally administered and monitored).
3. Is he at risk of self-harm?
Yes, although he is not currently actively suicidal. His condition of hopefulness is totally bound up with the possibility of being granted a visa. Should he experience further disappointment then he is at severe risk.”
(ii) Applicant M
118 M’s description of his condition is similar to S’s own description. He has become progressively depressed and is now very depressed and with no hope; he has trouble remembering things. He usually only eats one meal a day. He has trouble sleeping and has nightmares. He feels he wants to hurt himself. As I earlier noted he has indicated he will take the pills he has stored if he receives bad news.
119 According to Dr Schroff in his affidavit of 8 February 2005, M was first noted in Baxter’s medical records as suffering from depression and receiving antidepressant medication in May 2003. Thereafter M had frequent episodes of non-compliance with his medication. The same affidavit suggests he has seen six named doctors (including Dr Schroff) and other unnamed doctors while he has been in Baxter. The IHMS notes for M that have been tendered seem quite inconsistent with this but in turn provide only slight indications of M’s consultations (for whatever reasons) with the GPs for the period prior to the roof top protest.
120 Though Carlton Medical Practice did not begin to provide services at Baxter until 1 October 2004, the IHMS tendered notes began in January 2004. I would simply reiterate that it is Ms Kannis’ evidence that IHMS maintains the medical records for each detainee in electronic form and that treating staff are required to record all consultations and progress notes which are then saved onto the detainee’s files maintained on IHMS’s database.
121 From the period of the roof top protest M’s IHMS record is somewhat more revealing. He was sent to Port Augusta Hospital after the protest. He returned to Baxter on 18 December 2004 the notes recording “[n]o accompanying documentation”. He was seen by a GP on 19 December but no reason or treatment was recorded.
122 On 23 December he saw Mr Micallef, the PSS psychologist, for an hour. M indicated at the interview that he had future plans of self-harm but he indicated there was a small window of hope related to s 48B. He described that when going onto the roof he was not in control of his behaviour. He felt Ms Kannis had broken her promise of help when they came down from the roof. Mr Micallef assessed his suicide risk at the time as “low”. His treatment plan was to “[i]nform Dr and make referral for visiting psychiatrist re medications. Follow up with PSS is willing to comply”. M apparently had no formal consultation with PSS staff until 27 January 2005 when an appointment was made for 28 January.
123 M was examined on 31 December 2004 by Dr Richards, a general practitioner from Gawler, who was one of the group of medical practitioners who conducted assessments of detainees involved in the roof top protest and related hunger strike. Dr Richards examined six detainees on that day and he made an order under s 12 of the Mental Health Act in relation to one of them.
124 On that day Dr Richards handed the following handwritten note to a DIMIA officer, Ms Toohey (she is mistakenly referred to Dr Richards’ reports as a “CSL” officer). It was addressed to “The Manager, Baxter Detention Centre” and read (omitting formal parts):
“[M] presents with a fluctuating level of depression.
At present his state of health is such that medical attention is necessary so that it does not worsen and his risk of self harm become high.
Could I please urge the detention centre to have him seen as a matter of urgency and allow him to develop a supportive and constructive relationship with your treating doctors.”
125 On 7 January 2005 Dr Richards provided a report on M to the migration agents who organised the 31 December visit. That report said, in part, that:
“[M] presents as profoundly depressed and requires psychiatric care in a psychiatric facility. His high suicide risk and emotional withdrawal would make him ‘hard to read’ in an environment where health care is called on an as needs basis. I handed a note to CSL’s Stephanie Toohey recommending medical attention to his mental health be accessed.”
The report noted “[f]urther assessment of the patient’s physical and mental health and care was made difficult by the unavailability of their medical records”.
126 Dr Richards prepared a supplementary report on 11 March 2005 for M’s present legal advisers which was filed as an annexure to Ms O’Connor’s affidavit on 15 March 2005. By way of background to it I would note that Dr Richards was the only one of the visiting medical practitioners on 31 December who had authority to make a detention order under the Mental Health Act. This report said in part that:
“[M] was not detained largely through my own naivety of the health service at Baxter detention Centre.
Instead I handed a note to CSL’s Stephanie Toohey recommending psychiatric assessment.
At the time I believed in good faith that if one recommended psychiatric review of a person it would be arranged.
Subsequent events have shown that a psychiatrist needed to take extraordinary measures to see even the most floridly psychotic detainee at Baxter.
I did detain to Glenside Hospital one detainee who was extraordinarily mentally unwell. If I am absolutely honest I felt that if I detained all the very mentally unwell detainees on that day my visit would have been regarded as a political statement rather than a sober medical assessment and my opinions would be given less credibility.
Now on reflection if detention Glenside Hospital is the only way to get psychiatric care for a detainee it should have been done.
The diagnosis is Profound Depression with high suicide risk.”
127 Dr Richards did not communicate with the Baxter medical service. No evidence was adduced by the respondents as to what Ms Toohey did with the note that was given to her.
128 On 20 January M saw Dr Gequillana (who was working most days at Baxter from January for the Carlton Medical practice). His medications were altered.
129 At his 28 January meeting with the psychologist M talked of his depression and bad dreams. “He had tears in his eyes as he spoke.” It was decided to check his medication for possible change.
130 By 1 February M was seeking a medical appointment because he felt his medication was not working. He was seen by a GP on 4 February and his dosage was increased.
131 On 9 February 2005 M declined counselling from Ms Cowper. He was placed on SASH watch on 11 February. On that day Ms Cowper spoke to him.
132 M was seen by Dr Frukacz on 12 February 2005. I will refer below in detail to the general diagnosis of M he gave in his 31 March 2005 affidavit. Here I merely note that he concluded M was “[s]ignificantly depressed and anxious with feelings of despair – largely related to Fear of deportation. Being in detention. Chronic adjustment disorder with depressed and anxious mood. Possibly going out to major depression panic disorder with agoraphobia.” Dr Frukacz made recommendations concerning M’s medication. His notes record (amongst other things): “Monitor mood and mental state over 4-6 weeks”; and “[n]eed to be aware that conditions of detention are contributing to his depression and anxiety and so any medical treatment will have only a partial affect on his condition”: emphasis added.
133 By 16 February M was again complaining about the effect of his medication on him. He reiterated this complaint to the psychologist over the next few days but declined counselling on several occasions. On 23 February 2005 he indicated to Ms Hinton that he was not coping and “will do something soon”. While Ms Hinton did not consider there was evidence of immediate risk of self-harm, he required regular monitoring regarding his state of mind. He remained on SASH watch.
134 M was seen by Dr Schroff on 24 February 2005. His medication was changed in part and increased in part.
135 For the most part throughout March, while M was kept under observation he declined or was reluctant to engage in counselling.
136 Insofar as his consultations with GPs were concerned there is again inconsistency between Dr Schroff’s affidavit and the IHMS notes. I rely on the former as it annexes the handwritten notes of the treating GPs.
137 Dr Schroff again saw M on 3 March 2005. M presented as depressed and again complained about his medication. Dr Schroff varied the prescribed medication and left a note for the next doctor to review M and to increase his medication if required in seven days. Dr Gequillana saw M on 10 March and increased three of his medications.
138 Apart from being examined by Dr Frukacz and by Dr Jureidini on 29 March for the purposes of these proceedings, it does not appear that he had had any further medical assessment or treatment prior to his giving evidence. I will refer to the reports of those examinations below.
139 By late March 2003 the PSS notes record an improvement in M’s mood which is attributed by Ms Cowper to a statement by the Prime Minister about the release of 120 long-term detainees and to the present court case. M spoke to Ms Cowper on 22 March 2005 and indicated he now had some hope. He indicated he wanted to go to hospital to get better medication and that he did not want to be still sick if he gets out of detention. I note in passing that he repeated this sentiment with some emotion when giving evidence. He also disclosed to Ms Cowper that he had some very strong tablets that he would take if he needs to.
140 The following day a room search was conducted. M is said to have repeated his claim to have a large number of tablets on 31 March 2005 and had threatened to take them if no positive decision was given to his removal to Glenside. He was then placed on SASH watch. He declined counselling on 1 April 2005.
141 Dr Frukacz saw M again on 29 March for the purposes of these proceedings. His notes at the time recorded the following diagnosis and treatment:
“A – Remains depressed – with increasing feelings of despair and hopelessness.
B – Spoke about nature of depression – part due to being in detention and part due to constitutional factors.
Mentioned that although our treatment won’t do much as for the detention aspects of depression medication and psychological treatment can help with part of his depression and we should attempt to Maximizeits effectiveness.
Increase Efexor XR to 225 mg nocte.
Add Stilnox 10 mg to help with sleep – for 1 week then review need for it via L.M.O.
Look at increasing Efexor XR to 300 mg daily after 3-4 weeks – if no response and remain depressed consider hospital treatment – but I’m not sure what benefit hospital treatment whilst in detention will offer in addition to what we are doing here.
Whilst he remains in detention likely to remain depressed and his demoralization and despair likely to increase.”
I should add for the sake of completeness that, in relation to Dr Frukacz’s notes, I again prefer Ms Cowper’s version of the consultation to that of Dr Frukacz.
142 The report on M in Dr Frukacz’s affidavit contains the following statement about M. It was prefaced by the opinion that M’s depression was reactive and was not an underlying biological condition. It continued (emphasis added):
“Applicant M
16. In my notes from M’s consultation on 12 February 2005 I refer to the possibility of his condition going out to major depression. At that time I thought he had more of an adjustment disorder because he did talk about various issues to do with detention. He had concerns about his treatment by the officers, as well he talked about his anxiety and nervousness, shaking of his hands, aches and pains, not going to the gym and the experience of being terrified of being deported (this had been an issue for a few months before I saw M apparently following some deportations). Because M was able to articulate those kinds of concerns and that was consistent with how he was feeling that made me consider he may have more than an adjustment disorder, but people can develop a major depression over a period of time or with more close observation I might see that he is not being reactive. I had a snapshot of information about M and my primary diagnosis was a chronic adjustment disorder with depressed and anxious mood, but I could not discount other possible diagnosis.
17. Having reviewed the medical records for the period 12 February 2005 to the time of swearing this affidavit and in particular the period after which the applicant claims he was given a section 48B Notice, it is hard to say whether M’s condition is getting better or worse, but the observations of his recent and current behaviour are more consistent with an adjustment disorder than a major depression.
18. I have not had much experience with what happens when people are admitted to the Glenside Hospital in South Australia. However, I don’t think the actual physical location is all that significant to M’s condition or treatment. Having good news about his future irrespective of whether he is in Baxter or Glenside seems to have had a lifting affect. Conversely, I expect if M was to be in Glenside and heard he was going to stay in Glenside indefinitely his mood would deteriorate. So the place of detention is not as significant as the existential issues.
19. Glenside may be thought to be a slightly less harsh environment than Baxter. So transfer to Glenside may lead to a slight improvement in mood. But once M is confronted with those same restrictions then his mood will be effected in a significant way.
20. The social interaction available for the applicants at Baxter is an important factor. I am aware, from a recent psychiatric review, of a situation at present where a person improved slightly on transfer from Baxter to Glenside but is now experiencing the same types of issues he was feeling at Baxter and feels out of place at Glenside. The possibility of social interaction with people who share the same culture and possibly similar experiences is a significant consideration.
21. M is getting at Baxter an equivalent standard of care as I would normally provide for my private patients. We are trialling antidepressants to find which one he responds to the best, often it can take two or three trial of antidepressants. Then we will look at adding or augmenting the medication to make the antidepressant medication work better and then attending to cognitive behavioural techniques to see if we can get M involved in activities and daily routines. The point at which I would look at admission to hospital would be where if all these measures led to no changes or if he became more depressed. At that point I might look at a different approach to treatment or more intensive treatment (ECT) that might be provided in hospital or to seek a second (or team) opinion.
22. In my notes on 12 February 2005 I noted the need to be aware that conditions of detention are contributing to M’s depression and anxiety and so any medical treatment will have only a partial affect on his condition. I was referring to the potential impact of the continued level of detention and the frustration that he is experiencing in not being able to control his life or have freedom. That uncertainty and frustration will remain whether M is in immigration detention at Baxter or Glenside.
23. If I formed the view that a patient would be better served by admission to Glenside, I would make that recommendation. I have recently recommended a patient be transferred to Glenside and am aware that one other detainee was recently moved to Glenside.”
143 I previously set out Dr Frukacz’s omnibus statement for S and M of “Current treatment at Baxter” and “Summary” when referring to S’s mental health and treatment.
144 Finally, Dr Jureidini’s assessment of M that was prepared for this litigation. It also was made on 29 March and included the following:
“Mr [M] says that he is worse now than he has ever been. His condition has been exacerbated by being given the news 2 weeks ago that he could re-apply for a visa under 48B but then being told this was a mistake. His state is quite clearly worse than when he was seen by Dr Frukacz 6 weeks ago. In the meantime his dosage has been shuffled and changed by various GP’s, he says on three or four occasions, without good effect.
…
In answer to your specific questions:-
1. Is this person suffering from mental illness?
Yes. He has severe depression (Hamilton Rating Scale Score 40; anything above 23 is judged ‘very severe depression’); post traumatic stress disorder; possibly some organic sleep disturbance.
2. Is his mental illness being appropriately treated?
No. A GP has been trying to re-configure his medication but such a decision needs to be made by somebody with greater expertise; nor does medication on its own provide anything like adequate treatment of his mental illness. Severe psychiatric illness requires a combination of medical and psycho-social intervention that needs to be frequently monitored for its effectiveness by a psychiatrist. The management of a man at this current state of illness requires review by a psychiatrist on a daily basis in the first days, and frequently thereafter.
3. Is it possible to treat his mental illness within Baxter?
No. The Baxter environment along with the hopelessness about his future are the primary causes of his mental illness. It is unreasonable to expect that he could make a recovery while he remains in Baxter.
4. Should he be in hospital?
The severity of Mr [M]’s condition does warrant hospitalization. If he were in ideal circumstances in the community (with a supportive family etc with good access to psychiatric services) it might be possible to treat him as a day patient or even as an outpatient but given the current circumstances inpatient treatment is the preferred option.
5. Can the Baxter Nursing/Psychology/Counselling Staff be expected to manage his mental illness?
No. The level of Mr [M]’s disturbance requires more input from a Psychiatrist than is available in the Baxter environment.
6. Is he at risk of self harm or harm to others?
Yes. There is significant risk of self harm and some risk of harm to others. These risks, combined with the severe psychiatric disorder, would warrant compulsory treatment should he decline psychiatric input.”
145 The final matter to which I need refer is to highlight an omission. I have referred on several occasions to M’s conditional threat, communicated to Ms Cowper and to GSL guards, that he would use his stockpile of very strong pills if he did not get a positive decision to move him to Glenside. Dr Schroff was not informed of this. Yet his evidence in cross-examination was:
“If you were aware that a detainee had told DIMIA staff and health service staff that if they don’t get a particular outcome in a court case they will take an overdose and they want to kill themselves, would it concern you that that person wasn’t referred to you?---That person has to be seen by me and that is their function – to put that patient on to my list ASAP.”
MATTERS OF CONTROVERSY
146 There is quite a number of matters of disagreement between the parties (of greater or lesser significance) involving either evidentiary conflicts or the inferences that ought be drawn from established facts. I have already indicated that, given the nature of the issues to be determined, it is unnecessary to resolve a number of these conflicts (as, for example, the alleged harassment of the roof top protesters by GSL officers). I do need, though, to consider those matters which are relevant to the applicants’ claims. Given their disparate character, I will deal with them individually.
(i) The service providers’ loyalties and good faith
147 I mention this matter briefly primarily to discount it in large measure. It has not been suggested directly in evidence adduced by the applicants that the nature and terms of the particular outsourcing contract in this matter itself created inappropriate incentives which themselves were likely to have an adverse affect on the provision of reasonable and adequate mental health care services. I would, nonetheless, refer without further comment to the provisions of cl 7.1.3 of Part 7 of Schedule 2 to the Detention Services Contract set out earlier in these reasons. Distinctly, several of the medical practitioners called by the applicants expressed the view in cross-examination that the impartiality of professional health care providers at Baxter was compromised by their “employment” relationship with ultimately DIMIA and GSL and by the detention functions those “employers” were performing. Dr Jureidini, for example, spoke in terms of a conflict of interest. These views apart, there is clear evidence from the applicants that they distrust the PSS psychologists because of their “employment” with GSL; there is the evidence of Ms Kannis of her easy access to PSS files on individual detainees; and there is Dr Schroff’s evidence of the qualified character of the doctor-patient relationship he has with detainees who see him.
148 While the views and practices noted may themselves suggest that there are elements in current practices and arrangements at Baxter that warrant attention, the evidence on these matters is too impressionistic and unfocussed to be of any assistance in resolving the questions that arise in this matter. At best this evidence may provide some explanation for why the applicants have so regularly declined counselling.
(ii) Detainee access to outside medical practitioners
149 This issue appears to have been sparked by the 31 December 2004 visit to Baxter by two psychiatrists and Dr Richards during which both mental health assessments were made of over 10 of the detainees involved in the roof top protest and related hunger strike and an order was made for the detention of one detainee under the Mental Health Act.
150 Mr Williams, who headed the DIMIA branch in Canberra that manages day-to-day detention operations through the contracted service providers, acknowledged it was his attitude that a non-treating doctor could not see a detainee unless it was for a court-related hearing or an immigration application, or if it was to provide a second opinion requested by the treating doctor. Mr Williams considered that with “the Commonwealth holding as it does the duty of care … its service providers ought to be an integral part of the decision to seek and arrange [third party medical] treatment”.
151 Ms Kannis’ evidence of her own attitude was substantially to the same effect, although she suggested, surprisingly, that an outside psychiatrist could visit a detainee through the ordinary visitor’s mechanism (though that person could not conduct a private consultation when so doing). She also reiterated on a number of occasions the priority she gave to, and her reliance upon the advice of, contracted health service providers. So, for example, she said her preference was in all cases that detainees be seen by the contracted psychiatrist who has access to the person’s history, can liaise with other medical providers and has an ongoing relationship with the detainee, rather than someone coming in in isolation and seeing a person for an hour or two.
152 In contrast, Dr Frukacz indicated he had absolutely no problem with a detainee seeking and obtaining a second opinion from a psychiatrist who wanted to see that detainee.
153 The DIMIA attitude becomes the more significant in light of the matters now to be considered.
(iii) Self-harm/hunger strikes, the IDS, and the provision of psychiatric services
154 The IDS’s standards concerning health care as noted earlier in these reasons provided that in cases both of self-harm and of hunger strikes the persons involved are to be provided “post-incident” (in the case of self-harm) “with ongoing appropriate treatment including but not limited to psychological/psychiatric assessment and counselling”; and “post incident and as required” (in the case of hunger strikes) “access to ongoing medical treatment, including but not limited to psychological/psychiatric assessment and counselling”.
155 Ms Kannis’ evidence is that she was aware that no psychiatrist was brought to Baxter during the period of the roof top protest and hunger strike; she said she was regularly asking either GSL or the psychologist (she was not sure which) if a psychiatrist could be obtained; she was aware PSS made repeated attempts to obtain the services of a psychiatrist during the period from 7 December to New Year but could not do so; she passed her concern about this on to Canberra; she considered the IDS’s standard for hunger strikers meant standard commensurate with community standards and she knew that there was a shortage of psychiatrists in Australia and that it could have been difficult at that time for anyone in the community “to get a psychiatrist within a short period”; she expected that if the detainees needed to be referred to a hospital the GPs would do this; she would not personally ring Glenside, etc to obtain the services of a psychiatrist; and in her communications with the GSL manager, she regularly expressed her concern “that they continue in their efforts to obtain the services of a psychiatrist”, but she did not discuss with the manager the use of the South Australian Mental Health Services, and accepted without asking that GSL made every effort.
156 Ms Kannis went on leave around Christmas 2004. When she returned in mid-January, her evidence is that she became aware of the reports of Drs Dudley and Richards; she knew Dr Frukacz could not visit until 12 February; she was concerned both about the mental health of S and M and that a psychiatrist could not come sooner; and she asked GSL to continue making efforts to obtain the services of a psychiatrist (I would note in passing that it was in this context that Ms Kannis expressed her view, outlined earlier, on obtaining “second opinions”).
157 For his part, Mr Saxon indicated that GSL had agreed to the standards for “self-harm” and “hunger strikes” to which I have referred. Nonetheless his evidence concerning the period after the hunger strike differs sharply from that of Ms Kannis:
“As the manager of GSL, what did you do after the hunger strike ended to ensure that the detainees received appropriate medical treatment?---Throughout the whole process, and following the process, each detainee was visited on a daily basis by the nurse and, where they were agreeable to, by a doctor and/or the psychologist. At the completion of the hunger strike, medical attention continued. They were all viewed, to my knowledge, and interviewed by the psychologist or the counsellor.
You knew that they were not being seen by a psychiatrist?---Dr Frukacz was the psychiatrist and didn’t come till February, as stated, and they were not seen by a psychiatrist. Correct.
Were you ever asked by anybody at DIMIA – whether it be at Baxter or from the Canberra head office – to try and organise psychiatrists to visit Baxter at any time in the December-January period?---No, I was not.”
Mr Saxon previously had indicated that he did not recall anyone talking to him about the fact that Dr Frukacz would not be able to attend Baxter until February 2005. He said he received and passed on the reports of Dr Dudley and Dr Richards; he was aware of another report (Dr Jureidini’s) but could not recall reading it; and he was aware of what Dr Frukacz wrote. He was then asked:
“Did you personally discuss or were you involved in discussions about the appropriate treatment for Applicant M and Applicant S during this year?---Not with the psychiatrist. I spoke with the psychologist and I also spoke with the IHMS people and the issue has been raised through our Canberra office.
Did you speak at all to the general practitioners?---No, I did not.”
158 Dr Schroff’s evidence is that while he was not told that there was no psychiatrist at Baxter from November 2004 until February 2005 he had some idea that it was a possibility. He said that nobody from DIMIA or the health service has contacted him about whether a psychiatrist might be available to come to Baxter to assess people.
159 Ms Hinton visited Baxter just before Christmas 2004. The applicants returned from the Port Augusta Hospital while she was there. On the question of availability of psychiatrists at that time she gave the following evidence:
“Did you discuss it with anybody or did anyone discuss with you about the inability to get a psychiatrist to Baxter in the December-January period?---I was aware that there wasn’t a psychiatrist visiting. I’m not sure when that was brought to my attention though, but I was aware that there was going to be a gap - - -
There was going to be a gap?---In January before Dr Frukacz visited.
Dr Frukacz didn’t visit till February, did he?---Yes, I believe that’s correct.
Were you concerned at all about that gap?---It wasn’t brought to my attention by our psychologist as being a concern that I needed to be involved with, so no. I mean, that’s something that the medical providers deal with.
Who are the medical providers?---IHMS.”
160 I again notice in passing that neither the PSS psychologist, Ms Cowper, nor anyone from IHMS gave evidence in these proceedings.
161 As to the question of whether additional psychiatric services were requested by the Commonwealth in December 2004 – January 2005 to deal with the roof top protesters/hunger strikers, I am satisfied that no such request was made by Ms Kannis. I do not accept her evidence on this matter. It is not reflected in the documentary material before me. It is inconsistent with the evidence of Mr Saxon. It derives no support from Ms Hinton. I equally do not accept that, if the concern she said she had had been communicated to Canberra, it would not have elicited a response in the circumstances. There is no evidence of any response having been made.
162 I regard Ms Kannis’ evidence as a reconstructed rationalisation of what she now thinks she ought to have done. In that at least her appreciation would have been correct. The situation called for a psychiatric assessment of both applicants but particularly of S given his known propensity to self-harm and to the referrals to the psychiatrist that had already been made for him by Dr Abeyratne in November and December 2004. Judged by the Commonwealth’s own standards set in the IDS for self-harm and hunger striking, it can hardly be said that such a post-incident assessment was not necessary in the circumstances. I should add that, in the absence of any attempt to access the South Australian Mental Health Service, I cannot be satisfied that no psychiatric assistance could have been obtained in January 2004 if it had been sought.
163 The Commonwealth’s delay in having such an assessment provided constituted a breach of its duty to the applicants.
(iv) The Commonwealth’s treatment of adverse/conflicting medical opinion
164 By way of background I note that the first time at which either S or M were assessed by Dr Frukacz was on 12 February. They had previously been assessed by Dr Dudley and Dr Richards respectively during the 31 December 2004 visit to Baxter. Dr Jureidini’s reports of 29 March on S and M in turn conflicted as to treatment with what was recommended by Dr Frukacz for both S and M.
165 Dr Dudley’s report on S was forwarded to DIMIA’s Adelaide office on 6 January 2005 and on 13 January S’s legal adviser was informed by DIMIA that the report had been brought to the attention of the GPs treating S. On the evidence before me it would seem that Dr Richards’ main report on M (as distinct from his 31 December note) was communicated to DIMIA on 18 January.
166 Mr Williams gave evidence on DIMIA’s approach to dealing with conflicting medical opinions on treatment of Baxter detainees. His evidence is reflected in the following passages of cross-examination:
“Do you know if there’s a procedure that exists for what DIMIA would do if they received conflicting medical reports particularly in relation to diagnosis or treatment of a detainee?---This has arisen in the past from time to time. We would – I mean, we’re not doctors so we would need to see professional assistance to get to the bottom of a situation like that. It’s possible that we could seek the services of, for example, Health Services Australia, which is a Commonwealth authority that have medical expertise. I believe we’ve done that on occasion. We also have the expert panel that includes medical professionals, independent medical professionals from our service provider, service provision contract, that we can rely on, as well as normal sort of clerical processes to try and get to the bottom of an allegation of that kind.”
Mr Williams indicated he was aware of Dr Jureidini’s report and that it conflicted somewhat with the treatment and assessments conducted by the service provider. He was then asked:
“If I was to suggest to you that in fact medical reports were sent to DIMIA in January, relating to both these detainees, that suggested they should be treated in a different manner than DIMIA was in fact treating them – recommendations in relation to treatment were different; is there a protocol or a procedure for DIMIA to deal with conflicting medical reports of that nature? … ---I don’t think there’s a standard policy document that would set out a process.
If you then understand that there were further reports consistent with the original reports provided to DIMIA, would there be any concern that your department would have about, therefore, the quality of your own contracted staff?---Yes, I think broadly there would be. We’d firstly talk to our contracted staff, ask them to look at that report and give us some advice about what their opinion of that is: emphasis added.
Do you know whether that happened in this case? Were the contracted staff asked in relation to Applicant M and S to report and advise on first of all the reports sent in January and secondly in relation to the latest reports of Dr Jureidini?---I’m not sure about the second part, whether they were asked to advise. They were certainly provided with the report. Whether they were asked to respond back to the department I’m not sure, not having seen the files in detail, or not having really seen the files, individual case files”: emphasis added.
167 Ms Kannis’ evidence is that when she returned from leave in mid-January, she was aware of the above reports, that they had been sent on to the GSL manager and that they were referred to the health services. The tenor of Ms Kannis’ evidence is that she would have relied on the advice of the health services doctors as to what should happen next after receipt of the reports. It is not clear that she ever sought or was given actual advice from the health services on the two reports or, for that matter, on Dr Jureidini’s later reports. As to the latter, when asked what she did given her stated concern about the conflicting treatment opinions given by Dr Jureidini and Dr Frukacz, Ms Kannis said:
“Well, as I said, I have greater confidence in the report of the psychiatrist who has seen a person and has access to the reports and access to discussions with the other health services people who have been attending him. I have greater confidence in his report than a report concocted after an hour or two of a consult or assessment or whatever it was”: emphasis added.
168 Ms Kannis’ evidence generally on how she would deal with conflicting medical reports is contained in the following passage of cross-examination:
“As the manager at Baxter, if you received two conflicting medical reports – one obtained externally, one obtained through the Professional Support Services that you’ve contracted – that have separate or different recommendations about treatment, what if anything would you do about the health needs of that detainee?---Well, I wouldn’t by myself make the judgment that there was conflict in medical reports. They’re technical and professional reports. I would take advice on that, but we do have the option of getting a third opinion, and we’ve done this in the past, so that’s one possibility.
Is that something you will independently consider, or do you just pass that back to Professional Support Services?---That would be something I would probably discuss with my central office colleagues, that there’s apparent conflict here that doesn’t seem to be able to be resolved locally, if that’s the case, and my suggestion would be that we would obtain a third opinion.
You know now, in relation to Applicant M, that there’s a conflict between what Dr Frukacz says, what Dr Jureidini says and what Dr Richards says, don’t you? You know there’s a conflict in treatment recommendations don’t you, as the manager at Baxter?---I’ll take your word for that.”
169 Mr Saxon’s evidence is that he received the Dudley and Richards reports by mail. He sent them to IHMS. He did not follow up what was done by IHMS. He was not a medical person. He relied on the GPs. Ms Hinton’s evidence is that she did not read the reports until she went to Baxter on 8 February 2005. When she was there she asked Ms Cowper whether she was familiar with the reports. She was and she did not tell Ms Hinton she was unhappy with the level of care being given on the basis of the reports. Ms Hinton knew at that time that S was not “engaging in counselling with Ms Cowper”. I would again note that neither Ms Cowper nor Mr Micallef (PSS psychologist at Baxter in December – January 2005) gave evidence in these proceedings.
170 It is Dr Schroff’s evidence that “[i]n light of the report of psychiatrist Dr Dudley … [S] was seen by Dr Gequillana on Friday 4 Feb 2005 and referred to … Dr Frukacz”. It would seem that M was not similarly seen for psychiatric assessment by a GP in consequence of Dr Richards’ report, although he was seen by a GP on a number of occasions between 20 January 2005 and when he saw Dr Frukacz on 12 February 2005.
171 The reports of Dr Dudley and Dr Richards were, in my view, treated by the health care providers with relative uninterest and without any sense of urgency. This response is particularly surprising in the case of Dr Dudley’s report. It was the first assessment of S by a psychiatrist that was received by the Commonwealth. It was simply passed on to GSL. The GSL response was to pass the reports to IHMS (at some uncertain date) and an IHMS engaged GP then referred S to Dr Frukacz for an assessment which was to be held at least six weeks after Dr Dudley saw S. It does not appear that the Commonwealth sought or received advice on the matter after passing on the reports.
172 Though Dr Richards’ report and note sent inconsistent messages (the note being far more circumspect in tenor), they appear not to have provoked a direct response. The IHMS notes make no reference to Dr Richards. The first GP medical consultation they note of any consequence did not occur until 20 January 2005. The first PSS note of consequence in January 2005 did not occur until 28 January. Dr Schroff’s affidavit of 8 February 2005, while indicating that he had read (inter alia) Dr Richards’ report for the purpose of preparing the affidavit, makes no note of it in the context of his account of M’s treatment.
173 While Dr Richards’ report and note may possibly have provided some stimulus to having M’s name put on the list to see Dr Frukacz for 12 February, it did not influence the treatment given M in the interim. And it was not the subject of advice to DIMIA.
174 The reports of Drs Dudley, Richards and Jureidini did not prompt action and inquiry by DIMIA to inform itself as to the health care actually being provided to (amongst others) S and M by its service providers. It is difficult to resist the conclusion that those reports were disregarded in substance. This may well have been because, rightly or wrongly, they were perceived to be authored by critics or opponents of the manner of conduct of immigration detention at Baxter. In the proceedings before me the Commonwealth has sought to paint these doctors as advocates of a cause and to impugn their professionalism in consequence. In my view, the lack of professionalism has been demonstrated by others.
175 As I indicate later in this reasons, the nature of the conflict of opinion as it has evolved up to the hearing of these matters made it unreasonable for the Commonwealth to rely and to continue to rely on the “advice” of Dr Frukacz without first obtaining competent third party reassurance that it was reasonable to do so.
(v) Baxter v Glenside
176 The relative qualities of Baxter and Glenside as institutions in which appropriate mental health treatment could be provided to the applicants was put starkly in issue by the observations made by Dr Frukacz in his affidavit and in evidence concerning Glenside. The following is representative: “Glenside may be thought to be a slightly less harsh environment than Baxter”.
177 It is fair to say at the outset that Dr Frukacz’s views on Baxter seems to be coloured by his appreciation of how best to treat the applicants given his diagnoses of them. The matter of diagnosis and treatment is dealt with immediately below. Here I wish only to refer to the various views expressed on the two facilities, Glenside and Baxter. Before so doing I should indicate that I refused to admit the affidavit of another detainee, P, who was in Baxter but was later transferred to Glenside. He purported to provide a comparison of the conditions of detention at Baxter and Glenside. I did not consider I would derive any assistance from his views even assuming they were admissible.
178 That Dr Frukacz could venture the comparative opinions on the facilities of the two institutions that he did on the basis of the limited familiarity he had with Glenside is surprising to say the least. Save for one visit to see a patient “about a month ago”, he acknowledged he had not been there since 1982. On his recent visit he did not ask to be shown around. He nonetheless felt confident in arguing that there was not much difference between Baxter and Glenside although he did say “the surroundings, I guess, are less harsh. The environment is less harsh”. He appears to have dismissed use of Glenside’s facilities on the basis (a) of the lack of group programs at the facility; and (b) of the deteriorating of one of his two detainee patients after two weeks of improvement there. He also stated in cross-examination that he did not know anyone of the various detainees who had gone to Glenside over the last two years who had got a lot better, but also that he had not looked at the treatment of even one of them. Dr Frukacz’s affidavit seems, as Dr Jureidini observed, to equate the need to be in a hospital with the need to use a particular treatment facility (i.e. ECT) which is not available at Baxter.
179 The contrast between Dr Frukacz and Dr Jureidini as to the facilities at, and the environment of, Glenside is striking. I have already referred to Dr Jureidini’s familiarity both with Glenside and with Baxter. His evidence emphasised the daily availability of psychiatrists and psychiatric nursing staff, the quality of treatment and the therapeutic environment for treatment at Glenside.
180 More important are the divisions between Dr Frukacz on the one hand and Drs Jureidini, Dudley and Richards on the other over the Baxter environment. Dr Jureidini’s evidence, for example, is that he is “not actually sure that a psychiatrist can do anything for anybody in Baxter, but if they can, it would require that they were very present in the unit”; he was critical of the regimes both of the Management Unit and of Red 1 and of the impact placement in either would have on a person with a mental illness be that placement for observation in isolation or for behavioural modification; he considered that the fact that these two facilities exist in Baxter “is a significant factor in anybody’s life if they live in Baxter Detention Centre, because the possibility of being sent to [either] is always available”; his view was that Baxter “is an environment almost designed to produce mental illness”; “there is a pervasive atmosphere of hopelessness in the environment”.
181 Dr Dudley’s views reflected those of Dr Jureidini. He regarded Baxter as an “impossible environment”. He was critical of the effects of placement in Red 1 and on SASH watch which he regarded as being inappropriate for mentally ill detainees; he saw the primary function of Baxter as being to incarcerate and the medical staff were there to ensure it occurs in the most efficient manner. He agreed he was opposed to the immigration detention environment per se “as it currently exists”.
182 Dr Richards in turn expressed like views on the atmosphere and environment of Baxter (which he contrasted with Glenside): “Baxter itself is unwell”.
183 In his affidavit Dr Frukacz indicated that M was getting “an equivalent standard of care” at Baxter to what he normally provided his private patients. He indicated in evidence that he was referring to patients in “remote communities”. He also conceded in cross-examination that certain aspects of the Baxter environment, e.g. containment behind razor-wire or isolation in the Management Unit under certain conditions, would or could contribute to a detainee’s depression. He equally agreed it would be possible to provide conditions in immigration detention at Baxter that reflected a more hospital environment.
184 I emphasise the views of Drs Jureidini, Dudley and Richards for this reason. They go directly to the issue of treatment of S and M – the matter which divided these doctors from Dr Frukacz. It was the very matter the Commonwealth needed to address in discharging its duty of care to S and M.
(vi) The treatment opinions
185 For present purposes the differences in diagnoses by the various doctors of S and M’s conditions are unimportant. Their divergences in opinion are not. I have already referred to the substance of their reports. Taking account of their evidence as well, their views can be summarised as follows.
186 Dr Frukacz: M: He did not consider that the actual physical location was all that significant to M’s condition or treatment. Place of detention was not as significant as the “existential issues” – the length of detention, and not having control over one’s life; not having freedom and the indefiniteness of it; not knowing when it is going to end; not being sure what’s going to happen. Whilst M remains in detention, it will be difficult to treat his depression. Provided M’s condition “was being effectively managed by medication and psychological intervention” – and he considered it was – how was going to Glenside going to make a difference. If his condition was not being so managed, it might be necessary to consider inpatient assessment and treatment.
187 S: Dr Frukacz was more concerned with S than M. Electro convulsive therapy (“ECT”) is very effective for severe depressants. If S needed ECT, that would be a reason to move him to Glenside, but that was not necessary at the time of his affidavit. As with M, the existential issues of detention were paramount and were making him worse, although to some extent environmental issues were contributing.
188 Dr Jureidini: He regarded the conditions of both S and M as requiring a combination of medical and psycho-social intervention that were beyond the resources of Baxter to supply. In the case of both of them, their environment at Baxter was a strong contributor to their mental illnesses; their mental illness would deteriorate if they stayed in that environment; they could not adequately be treated there; they required psychiatric hospitalisation. His views were crystallised in the following: “[a]t least two very bad things are happening to these men: they’re being locked up indefinitely, and they’re being locked up in Baxter”; “[Moving to Glenside is] not going to cure them, but it has taken away one of the two things which is causing them pain at the moment”.
189 It is unnecessary to enlarge further on the views of Drs Dudley and Richards. Both regarded the Baxter environment to be harmful to the medical health of S and M respectively and that their mental health needs required their removal from that environment.
190 The obvious significance of these divergent views is that they focus on the environment at Baxter itself and they call into question whether or not, for at least indefinite detainees, the conditions at Baxter can themselves be a significant contributing cause of mental illness.
191 The starkness of the divergence has been most apparent in the contrast of Dr Jureidini’s reports and Dr Frukacz’s affidavit, both of which were prepared on the eve of these trials in late March. There is no evidence before me that, at even that late date, the Commonwealth had taken steps to resolve the conflict of opinion as it affected the applicants in these proceedings.
192 The earlier reports of Drs Dudley and Richards did not highlight sharply the above “environment” issue. Nonetheless they did highlight the mental illness of these two previously undiagnosed detainees and each recommended their removal from Baxter and in so doing emphasised the need for their treatment in a psychiatric institution outside of Baxter.
193 The final matter of divergence between Dr Frukacz on the one hand, and Drs Jureidini and Dudley on the other, related to the level of psychiatric care that should be being provided to the applicants given their respective conditions. Dr Jureidini considered they both initially required “review by a psychiatrist on a daily basis”; Dr Dudley that preferably they receive “further psychiatric treatment … in an inpatient facility”. Inferentially Dr Frukacz rejected these views. His treatment plan did not envisage such psychiatric care. Baxter could not provide it.
194 As I will enlarge upon below, these conflicts related not only to Baxter as a cause of the applicants’ conditions but also to its being an inappropriate place to treat them (let alone to provide the level of treatment they required). It was, in the circumstances, quite inappropriate for the Commonwealth to rely upon Dr Frukacz and the service providers on the ground without first obtaining competent third party reassurance that it was reasonable to do so.
THE STRUCTURE OF THE MIGRATION ACT AND “IMMIGRATION DETENTION”
195 The nature and reach of such common law duty as is imposed on either respondent is necessarily contrived by the legislative scheme on which it is to be engrafted.
196 The Migration Act in a quite skeletal way creates the system of immigration detention. The detention system focuses upon the immigration status of persons who are not Australian citizens. A non-citizen who is in the migration zone and who does not hold a visa that is in effect is an “unlawful non-citizen”: ss 13 and 14. The obligation to detain unlawful non-citizens is imposed upon “officers” by s 189 of the Act. The word “detain” is defined in s 5(1) to mean take into immigration detention or to keep, or cause to be kept, in immigration detention. The word “officer” is defined in s 5(1) as is “immigration detention” which means (for present purposes):
“immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee – another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel – on that vessel; or
(v) in another place approved by the Minister in writing”: emphasis added.
197 Section 273 of the Act deals with “detention centres”. It provides:
“(1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.
(2) The regulations may make provision in relation to the operation and regulation of detention centres.
(3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:
(a) the conduct and supervision of detainees;
(b) the powers of persons performing functions in connection with the supervision of detainees.
(4) In this section:
detention centre means a centre for the detention of persons whose detention is authorised under this Act.”
198 I note in passing that judges of this Court criticised the Commonwealth’s failure to make regulations for detention centres under this section: see Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [2], [8] ff. That deficiency remains unrectified.
199 While the scheme of the Migration Act levels the processes of detaining and holding in detention to detaining or holding by “an officer”, the context and structure of the Act in my view makes plain that, whosoever the officer in a given case, the detaining and holding is both on behalf of the Commonwealth and by the Commonwealth. “Officers” provide the Commonwealth’s medium for the purposes of the Act. It is for this reason I consider that the Commonwealth has correctly conceded in this matter that it owes a non-delegable duty of care to the applicants because of its particular “relationship” with detainees: see Kondis v State Transport Authority (1984) 154 CLR 672 at 687.
200 What the focus on “an officer” does highlight, though, is the inappropriateness of the joinder of the Secretary of DIMIA as a respondent in these proceedings. An “officer” is defined in s 5(1) to mean:
“(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.”
201 While it may possibly be the case that Ms Kannis is the relevant officer on whose behalf S and M were held in Baxter (there is no evidence to this effect), there is no evidence at all before the Court to justify the conclusion that S and M are being held in Baxter “by, or on behalf of” the Secretary. There is no basis upon which he can be said to be the relevant officer or that, as such, he owes a duty of care to S and M as detainees in Baxter. I note that the Full Court in Mastipour (at [35]) called into doubt the making of such a claim against the Secretary.
202 An attempt was made to cast the Secretary in the “officer” role by virtue of the responsibilities for DIMIA cast on the Secretary by s 57 of the Public Service Act 1999 (Cth) (“Public Service Act”). That section makes the Secretary, under the Minister, responsible for managing the Department. The administrative obligation so imposed clearly does not carry with it as of course the creation of such a relationship with detainees held in immigration detention as would result in the Secretary being the “officer” subject to the duty to care for the detainees. The purposes of s 57 of the Public Service Act are quite differently directed.
203 The respective claims against the Secretary in each proceeding must be dismissed. I earlier noted that it was these claims that attracted federal jurisdiction. However, it is well established that their dismissal does not mean that my jurisdiction in the remaining claim ceases to be federal jurisdiction: see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; and see generally Allsop, at 41 ff.
THE APPLICANTS’ CASES AS PLEADED
204 The Statements of Claim in respect of each applicant, insofar as presently relevant, are in identical terms. Put compendiously, the essence of what is pleaded is that (i) the applicants have been in immigration detention since the year 2000; (ii) they have in that period developed a psychiatric illness, i.e. profound depression; (iii) their symptoms have worsened progressively during the period of detention and they each have engaged in activities involving self-harm in consequence of their respective conditions; (v) as a result of detaining each of the applicants, either or both of the respondents then –
“owe to the applicant a duty of care to take reasonable care for the applicant’s safety whilst in detention including a duty to provide the applicant with reasonable medical care in respect to both his physical and mental health”;
(vi) the respondents “failed to exercise reasonable care of the applicant[s’] mental health” in breach of their duty.
205 The respondents’ negligence has been particularised in terms that they:
“10.1 failed to have the applicant’s mental health adequately assessed
10.2 failed to provide the applicant with adequate treatment of his condition
10.3 failed to detain the applicant in a facility which can provide adequate treatment of the applicant’s psychiatric illness
10.4 having failed to adequately assess the applicant’s mental health and provide treatment of his mental illness, denied and continue to deny access to Baxter by medical practitioners willing to assess and recommend treatment for the applicant
10.5 have and continue to detain the applicant in conditions which have caused and continue to cause a deterioration of the applicant’s mental health.”
206 Though the respondents originally contended that it was not properly open on the pleadings for the applicants to mount the case of systemic failure that they have, the adequacy of the pleadings is now accepted.
THE COMMONWEALTH’S DUTY OF CARE
207 The Commonwealth’s concession that it is under a non-delegable duty to ensure that reasonable care is taken of the detainees in question is properly made. It rightly is conceded that it does not discharge its duty to detainees by the employment of “… qualified and ostensibly competent independent contractor[s]”: cf Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550. Nonetheless the concession does little to illuminate what, in the context of immigration detention under the Migration Act, is the scope and content of the Commonwealth’s duty. To ascertain these it is necessary to have regard to those characteristics in the Commonwealth-detainee relationship which make it appropriate to impose upon it a non-delegable duty “to see that care is taken”: cf Burnie Port Authority at 550.
208 The most influential modern analysis of non-delegable duties of care is that of Mason J in Kondis v State Transport Authority at 679-687. That analysis was in turn adopted and enlarged upon in the majority judgment in Burnie Port Authority (at 550-551) where it was said:
“Mason J [in Kondis] identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable in that sense: adjoining owners of land in relation to work threatening support or common walls; master and servant in relation to a safe system of work; hospital and patient; school authority and pupil; and (arguably), occupier and invitee. In most, though conceivably not all, of such categories of case, the common ‘element in the relationship between the parties which generates [the] special responsibility or duty to see that care is taken’ is that ‘the person on whom [the duty] is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised’ [Kondis v State Transport Authority (1984) 154 CLR at 687; see also Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR at 31, 44-46]. It will be convenient to refer to that common element as ‘the central element of control’. Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person [The Commonwealth v Introvigne (1982) 150 CLR 258 at 271, per Mason J].”
209 It is unnecessary for present purposes to undertake a review of the widening categories of case in common law countries in which a duty to care for or to protect is being imposed: see e.g. Balkin & Davis, Law of Torts, [7.20] ff (3rd ed, 2004); Trindade & Cain, The Law of Torts in Australia, 405 ff (3rd ed, 1999); Todd (ed), The Law of Torts in New Zealand, 4.7.7 (3rd ed, 2004). The relationship of the Commonwealth to persons in immigration detention who are known to belong to a class suffering from mental illness is closely analogous to, and draws on elements of, two classes of relationship which attract non-delegable duties. These are hospital and patient [Kondis, at 685; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 561-562; see also Wellesley Hospital v Lawson (1978) 76 DLR (3d) 688 at 692] and gaoler and prisoner [Howard v Jarvis (1958) 98 CLR 177 at 183; Morgan v Attorney-General [1965] NZLR 134; R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 at 166; Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360]. The characteristics the present relationship shares with that of hospital and patient are not only the element of control and the assumed responsibility for the health care of the detainees, there is as well the exaggerated vulnerability of the class of detainees at significant risk of mental illnesses. I speak of this class of detainees to foreshadow my later conclusion that indefinite detainees in Baxter were known to the Commonwealth to be susceptible to serious mental illness.
210 The further characteristic shared with the gaoler-prisoner relationship grows out of the nature of the control exercised over detainees. They are without freedom and without capacity to provide for their own needs, special or otherwise. Their’s is a special dependence but particularly so if they suffer from mental illness.
211 The duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees known to suffer mental illness are exposed. The duty must also take account of the very distinctive outsourcing arrangements the Commonwealth has been prepared to accept for the provision of health care services.
212 This case is one of first impression and for that reason it is necessary to approach the standard required of the Commonwealth with some caution. This said, I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves: cf Spicer v Williamson 132 SE 291 (1926) at 293. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care: see e.g. Brooks v Home Office (1999) 48 BMLR 109 at 114; cf also, although in a setting affected by constitutional considerations, Bowring v Goodwin 551 F 2d 44 (1977) at 47. Where, as here, the Commonwealth contracts out the provision of services to detainees it is obliged to see that “care is taken”: cf Kondis, at 686; and that the requisite level of medical care is provided and with reasonable care and skill.
213 There is one aspect of the Commonwealth’s duty to which I should refer. It was a decision of the Commonwealth (under s 273 of the Act) to establish and maintain Baxter in a relatively isolated part of Australia. The issue this raises, potentially, is whether its so choosing can itself affect the standard of health care services the Commonwealth is obliged to provide. Dr Frukacz, for example, described the psychiatric services he provided at Baxter as being at the level available to “remote communities”. In the distinctive circumstances of this matter, I do not consider I need express a concluded view on this issue given the medical opinions available to, and what was otherwise known by, the Commonwealth in the relevant period: see Brooks at 113-114; but cf Knight v Home Office [1990] 3 All ER 237 which is doubted in Brooks. However, I should say that it is my view that, having made its choice of location, the Commonwealth, not the detainees, should bear the consequences of it insofar as that choice has affected or compromised the medical services that could be made available to meet the known needs of detainees.
THE PARTIES’ CONTENTIONS
214 I have previously described the applicants’ case as being founded on alleged systems failure in the health care services provided by the Commonwealth – a failure which put the Commonwealth in continuing breach of its duty to them and which exacerbated the mental illnesses from which they suffered. Put shortly, they rely on a variety of matters which are said either to reveal the inadequacies of the health care services provided, or of the Commonwealth’s oversight of those services and the service providers. They point (a) to the inadequacy of psychiatric services made available in the December-January period given both the Commonwealth’s own Immigration Detention Standards and the reports on S and M they received in that period; (b) to the reliance placed on the service providers in circumstances where their provision of psychiatric and psychological services had not been audited; (c) to the failure of the Commonwealth to take steps reasonably to resolve the conflict of medical opinions of which it was aware; (d) to detain persons known to be suffering from mental illness in conditions that contributed to their depression; (e) to the failures and inadequacies in the follow up of recommendations by doctors; and (f) to leaving the system of referring detainees to the GPs in the hands of the nurses and psychologists thus leaving a gap in the provision of services to those in need.
215 What the applicants do not rely upon and have disclaimed as part of their cases is that the Commonwealth could have adopted, but failed to adopt, other less severe forms of detention. The applicants also concede that, on their case, it is not necessary that I find that either Dr Frukacz or the GPs have failed to exercise reasonable care and skill.
216 The Commonwealth’s defence is that when the evidence is closely and fairly analysed it may well be said that it reveals matters that could have been better done, but perfection is not the issue before the court. It is said that Dr Frukacz performed his tasks competently and the Commonwealth by acting on his advice has discharged its duty of care. It is said I ought accept Ms Kannis’ “judgment call” that this was not a proper case for a third medical opinion. While there is a difference between Dr Frukacz and Dr Jureidini as to the balance between indefinite detention and the conditions at Baxter as causes of the applicants’ mental illnesses, it is not negligent for the Commonwealth to accept Dr Frukacz’s and the treating GPs’ view. The applicants were under meaningful surveillance at Baxter by professionals. There is no indication in the evidence of negligence in the preparation of lists of detainees who were to see the GPs.
CONSIDERATION
General considerations
217 The Commonwealth-detainee relationship at Baxter has, on the evidence, quite distinctive characteristics. The Commonwealth was aware that about one third of the 326 detainees at the centre were long term detainees and that it had a significant mental health problem amongst that group which accounted for probably most of the detainees receiving psychiatric treatment and medication for depression. Ms Kannis’ evidence is to this effect and Dr Frukacz and Dr Schroff confirmed both the existence of this group and the incidence of mental illness within it.
218 In providing health care at Baxter in discharge of its common law obligation to care for the detainees, the Commonwealth necessarily had to respond to the particular mental health needs of members of this group. The number who had mental illnesses was numerically significant – Dr Frukacz had 20 to 30 patients at the time of these proceedings. As the evidence in these proceedings shows, some at least of the group members could be expected to, and did, engage in self-harm activities and hunger strikes which could lead to additional calls being made on psychiatric and psychological services.
219 The manner in which the Commonwealth chose to provide its health care services was by resort to outsourcing arrangements. Those arrangements in turn were distinctive. They resulted in the health care services being rendered, not by GSL (the Commonwealth’s contracted service provider) but by subcontractors of GSL (i.e. IHMS and PSS) or by contractors with IHMS (i.e. Dr Frukacz and the GPs). The consequence of this was that neither DIMIA nor GSL had any medical expertise of its own at Baxter. They both relied on the sub-contractors and IHMS’s contracted medical practitioners.
220 Consistent with its duty of care to Baxter detainees, the Commonwealth had to ensure both that the mental health care services so provided were reasonably designed to meet the mental health care needs of Baxter’s detainees and that the requisite level of mental health care was in fact being provided and with reasonable care and skill.
221 To do this, one would have thought that it was imperative that the Commonwealth conduct regular and systematic performance audits of the providers of its psychiatric and psychological service providers, the more so as (a) the extended chain of contracting for service provision left the Commonwealth in no legal relationship with, and remote from, the service providers; and (b) service provision itself was fragmented between various, uncoordinated separate providers. The evidence is that such audits have not occurred up to the time of these hearings. Such an audit, I understand, is projected. Neither has GSL, the Commonwealth’s surrogate in this matter, audited IHMS’s psychiatric services or PSS’s psychological services. Again these are said to be projected.
222 The evidence does disclose that the Commonwealth has established some essentially reactive processes which for the most part are ad hoc, involving responses to, or investigations of, particular incidents etc. These can lead to changes, etc in practices.
223 One equally would have expected open lines of communication between the Commonwealth and the actual service providers which would allow for the regular exchange of views on service needs, their improvement, etc. There is evidence of regular meetings being conducted at Baxter covering a variety of operational matters. But one can only register surprise, for example, at the evidence of Dr Frukacz that there has been no consultation with him regarding how things might be improved, or at Ms Kannis’ statements that she would “go on the advice” of the GPs as to the adequacy of the levels of psychiatric services at Baxter in January 2005, but that she did not speak to any of the GPs in that period.
224 Ms Kannis has given evidence of the resources outside Baxter on which the Commonwealth can call in emergency situations and on its capacity, where there is a continuing conflict in medical opinion, to resort to outside third opinion. Nonetheless, the Commonwealth has, for the most part, put itself in the position where it has relied in substance upon its own mental health care service providers to advise it as to whether it is in fact discharging its duty to care for the detainees in rendering the services provided by those providers. The hazards of its so doing are self-evident and are manifest in these proceedings.
225 It is not my function to engage in a roving inquiry into the adequacy generally of the health care services at Baxter or into the manner of their rendering. I am unable, though, to avoid comment below on specific aspects of those matters. The above comments and conclusions inform my specific findings and conclusions in relation to the two applicants. I would add to them the following. As will be seen in relation to each of the applicants, the evidence discloses significant inadequacies both in acting upon medical recommendations and in ensuring timely access to mental health care.
Matters of Detail
226 Before I turn to the detail of the applicants’ claims, it is necessary to emphasise that the complaints they each made are of a continuing wrong being committed by the Commonwealth from which they were suffering, and could suffer, ongoing injury. I emphasise this for the following reason. If the applicants cannot prove that a continuing wrong was still, or else was now at the time of the hearing, being committed, they would not be entitled to the particular relief sought. It is insufficient for them to show, for example, that they were wronged in say January 2005 if actions were taken by the Commonwealth since then that put it no longer in breach of its duty to them. I will in consequence divide the periods of concern in these proceedings into two segments. The first is the period up to 12 February 2005, the day on which S and M first saw Dr Frukacz. The second, the period after 12 February 2005. I note in passing that these two applications were filed on 31 January 2005 and 1 February 2005 respectively.
(i) The period to 12 February 2005
227 In light of conclusions I have already foreshadowed it is not difficult to reach the conclusion that the Commonwealth breached its duty to both S and M and that that breach continued up until 12 February 2005. I will deal with each case in turn.
S
228 The IHMS notes from October 2004 reveal the growing concern the GP, Dr Abeyratne, had about S’s mental health. When read with the PSS notes, they disclose the lack of progress in his accessing psychological and psychiatric treatment. He saw a psychologist on 26 September, but not again till after the roof top protest. By 10 November Dr Abeyratne noted he needed to be shown to the psychiatrist; on 2 December he again referred S to a psychiatrist and to the psychologist (“still depressed+++”).
229 The notes of this period reveal what appear to be failures in following up recommendations (particularly in relation to psychological services). It is not clear on the evidence whether the 10 November reference to the psychiatrist pre-dated or post-dated Dr Frukacz’s November visit. What is clear is that, with Dr Frukacz’s next visit being scheduled for 12 February, a relatively long period would elapse before the reference could be acted upon. And the roof top protest intervened.
230 S had a history of self-harm. On 6 December 2004 he again cut himself and, after treatment for his lacerations, he joined the 10-11 day roof top protest/hunger strike. It appears he only saw a GP on three occasions after his return from the Port Augusta Hospital on 18 December and before seeing Dr Frukacz. The first was on 19 December immediately after his return to Baxter. The second was on 14 January. By that date DIMIA was in receipt of Dr Dudley’s report. I have previously recounted its fate. It had no influence on his 14 January treatment. The third was on 4 February when he was again referred to Dr Frukacz on 12 February. The PSS notes to 12 February were in turn perfunctory and suggest refusal on S’s part to be counselled. His reasons for refusing psychological counselling were distrust. This, in the immigration detention setting he was experiencing, was understandable, but its consequence was that S was without this form of care. I should emphasise that, in any event, the first occasion on which he was seen by a psychologist after the roof top protest was on 19 January. The reason for pause in this becomes the more apparent when one has regard to Ms Kannis’ evidence that she left it to the psychologist “to make the judgment call” as to whether the applicants should see a psychiatrist after coming back from Port Augusta Hospital.
231 Having regard to the protracted period of his complaint of worsening depression; the referrals by Dr Abeyratne to the psychologist and the psychiatrist; the incidents of self-harm and the roof top protest and hunger strike; and Dr Dudley’s report and the relative inaction on it notwithstanding it was the only psychiatric assessment of S possessed by the Commonwealth, I can only conclude that his mental health care needs were not only not being met, but that he, though known to be a mentally ill detainee, was being treated with neglect and disregard. The Commonwealth’s acquiescence in the delay in providing him psychiatric care from November 2004, but particularly from the time of his self-harm and roof top protest in December until Dr Frukacz’s visit “was, in the circumstances, a failure to make that expertise available when it should have been”: cf Brooks at 114.
232 I have already found that the failure to provide psychiatric care to both applicants after the roof top protest was, in the circumstances, a breach of the Commonwealth’s duty to take reasonable care for the detainees. I am further satisfied that the long delay the applicants were forced to endure betrayed an inadequate level of provision of psychiatric services at Baxter in any event. As Dr Frukacz said, “it would be nice to be able to visit more frequently, but then I am one person”. The fault was not Dr Frukacz’s. It was the Commonwealth’s.
M
233 M’s case up to 12 February 2005 is not so striking as S’s in terms of his difficulty in accessing reasonable mental health care services. But in the end it reveals the same neglect by the Commonwealth. Though he was on medication for depression since May 2003, it was his participation in the roof top protest that brought him to attention. He was referred by DIMIA to Mr Micallef, the PSS psychologist, who interviewed him on 23 December 2004. The PSS notes, for once, are informative. Mr Micallef noted M’s symptoms “fulfil some criteria for major depressive episode for the past 3-4 months” and his plan was to inform the GP and to refer M to the visiting psychiatrist “re medications”. Follow up by PSS was anticipated. On the material before me M did not have any psychological consultation until very late January 2005 and did not see a GP until 20 January. There is no indication that those treating him were aware of, or took account of, Dr Richard’s report and note. One can only conclude that he was being made to wait for Dr Frukacz’s advent.
234 I have already indicated that the failure to provide appropriate psychiatric assessment in January 2005 consequent upon the roof top protest and hunger strike involved a continuing breach of duty by the Commonwealth. No less so than in the case of S, it was accompanied by neglect of M notwithstanding that from late December, the Commonwealth had reasonable grounds to believe he may have been suffering from major depression. He could not take care of himself. Those who should have did not.
(ii) The period after 12 February 2005
235 While denying wrongdoing in any event, the Commonwealth’s submissions rely heavily upon Dr Frukacz’s assessments of S and M in February and M’s later assessment in late March for the purposes of these proceedings. It is contended that the assessments made and the treatment plans proposed in each case were reasonable and appropriate and that, in the circumstances it was appropriate for the Commonwealth to rely on the “advice” of Dr Frukacz.
236 This contention highlights what was, and was not, in issue in these proceedings. The case was not one in which professional negligence is alleged against Dr Frukacz or the GPs, although there was strong disagreement with the treatment plan for each applicant in which those medical practitioners participated. Rather the issue was whether the Commonwealth failed in its duty to care for the applicants in the circumstances, given both its knowledge of the objections to Dr Frukacz’s plan and given the manner in which the plan was in fact being implemented.
237 To anticipate my conclusions, I am satisfied that the Commonwealth at least in late March had no reasonable foundation for acting as it did. This was accentuated by its knowledge of Dr Jureidini’s opinion that the Baxter environment itself was a primary cause of mental illness. It was not reasonable for the Commonwealth to rely upon treatment plans which might condemn the applicants to continuing injury by their being kept in Baxter, without first taking reasonable steps to reassure itself that it was reasonable to continue to rely upon those plans to meet the applicants’ mental health care needs in the circumstances. Further I consider that the actual implementation of the plans, particularly in S’s case, demonstrated neglect of the applicants’ needs. When this is considered together with the inadequate level of psychiatric care in Baxter for detainees with serious mental illness, I am also satisfied that the Commonwealth was, in this as well, guilty of neglect of its duty. Given the known mental conditions of the applicants, the Commonwealth permitted its contractor to provide an inadequate and, on the evidence, poorly functioning mental health care service to them.
238 I have referred earlier (i) to the Commonwealth’s objection to having outside medical assessment of detainees (litigation and migration applications apart) without the participation of the Baxter treating doctors in the decision to seek third party medical assessment or treatment; and (ii) to the conflicts of medical opinion concerning the place of, nature of, and basis for, the treatment of S and M, as between Drs Jureidini, Dudley and Richards on the one hand and Dr Frukacz and Dr Schroff on the other.
239 After Dr Frukacz made his assessments of S and M on 12 February and of S again on 19 February, it may have seemed appropriate to Ms Kannis that she rely upon his reports given his access to the reports and discussions with the other health services people who had been attending S. How real that assistance may have been, given the generally unyielding character of the IHMS and PSS notes up to 12 and 19 February, is a matter into which I need not inquire. What the evidence does not indicate, though, is that Dr Frukacz actually advised Ms Kannis, directly or indirectly, at that time as to why his view should reasonably be preferred over those of Drs Dudley and Richards. Further, Ms Kannis knew, or had the means of knowing, that Dr Frukacz’s next scheduled visit was not until April 2005. Despite the difficulties Ms Kannis said were experienced in procuring additional psychiatric support to Baxter in January 2005 (in evidence I have not accepted), there is no evidence that she proposed, or took steps, to ensure enhanced psychiatric services were provided at Baxter to meet the then mental health care needs of detainees, although according to Mr Saxon she did express concerns to him “two to three weeks” before he gave evidence, that Dr Frukacz would not be attending for some time. And she, nonetheless, maintained her confidence in the PSS staff notwithstanding that she had no sufficient basis for concluding that they were providing adequate psychological care to S and M. The PSS notes reveal the contrary was the case prior to mid-February 2005. On her own evidence Ms Kannis was aware at least one of the detainees was refusing counselling.
240 Whatever justification the Commonwealth through Ms Kannis may have felt for taking the course of reliance on Dr Frukacz and the health care providers in mid February 2005, the situation changed once Dr Jureidini’s reports were received on 30 March 2005. Before turning to that report and its significance, it is necessary to refer to the circumstances of S and M as I find them to have been in the period post 12 February 2005.
S
241 Dr Frukacz’s continuing diagnosis was that S suffered major depression and that S was experiencing side effects from the medications prescribed. His treatment plan of 19 February involved changes in medications. It concluded: “[i]f not helping look at hospital assessment” seemingly with a view to ECT. The plan clearly envisaged reasonable monitoring of S by a GP. Dr Schroff saw S on 22 February and 3 March. He was next seen on 14 March by Dr Gequillana. S refused to attend the litigation consultation with Dr Frukacz on 29 March for the reasons I earlier gave. On 6 April (two days after he had given evidence in these proceedings) he was referred to Glenside by Dr Schroff. It is in my view unsurprising that Dr Schroff had so acted by that date. On 29 March Dr Jureidini, in preparing his report on S for these proceedings, could find “no evidence of improvement … since he was last seen by Dr Frukacz”.
242 Beyond direct medical treatment, S was placed on SASH watch on 12 February; he was declining counselling but was being “observed” by GSL guards in the compound; and he had indicated to Ms Cowper in an encounter in the compound on 25 March that if he did not get a visa he would kill himself. S underwent one “SASH assessment” in this period. No participant in that assessment gave evidence.
243 Given the nature of S’s condition and the plan formulated for him by Dr Frukacz, I am satisfied that the level of care provided to him probably from about 3 March was inadequate in the circumstances. I note that in giving evidence on his second affidavit of 3 April, Dr Schroff indicated that he limited his observation that S did not need hospitalisation to the period up to the date of his last appointment with S on 3 March. No evidence was called as to the period thereafter from Dr Gequillana (who saw S on 14 March when S presented and was treated for back pain) or from PSS or IHMS staff. On the material before me the “care” given in March depended in significant measure on assessments made of GSL guard observations and on occasional encounters with the psychologist at which counselling was declined.
244 Even if Dr Frukacz’s treatment plan was appropriate – I express no opinion on this – its implementation was not. There was culpable neglect of S for which the Commonwealth was responsible. It entitled S in the circumstances to the grant of relief.
M
245 Dr Frukacz’s treatment plan for M after the 12 February consultation was that his mood and mental state should be monitored over four-six weeks and possible changes in medication were suggested. M had been placed on SASH watch on 11 February and remained on it until his next consultation with Dr Frukacz on 19 February 2005. In the interim he had begun to complain again about his medication.
246 M had been placed on SASH watch on 11 February and it would appear he remained on it until 8 March. This was reinstated on 31 March after his disclosure to Ms Cowper of his possession of a large number of tablets and his threat to use it.
247 Such attention as he had from the GPs prior to the present trial was from Dr Schroff on 24 February 2005 and 3 March 2005 (his medication being changed on each occasion) and by Dr Gequillana on 10 March when his medication was again increased.
248 Until early March M both accepted and refused psychological counselling. On 23 February he indicated to Ms Cowper he was not coping and “will do something soon”. The prospect of self-harm was then repeated at first obliquely and then directly in his later revelation of his stockpile of pills. It appears he had several “SASH assessments” in early March 2005. No participant in those assessments gave evidence.
249 Dr Frukacz’s treatment plan for him after the 29 March consultation required the adjustment of medications after “3-4 weeks” and if there was no response and he remained depressed to “consider hospital treatment”. He indicated nonetheless that he was not sure what benefit hospital treatment would provide over what Baxter could give because while he remained in detention he was “likely to remain depressed and his demoralization and despair likely to increase”.
250 Given the manner in which his medications were reconfigured (this was criticised by Dr Jureidini whose criticism I accept), the periods upon which he was on SASH watch, and the evolving threats of self-harm, I am satisfied M was not receiving an adequate level of mental health care for his needs in the period before Dr Frukacz’s second consultation. His treatment was changing and ineffectual. His condition was deteriorating. And he was required to wait for psychiatric attention.
251 Dr Frukacz’s own observation on 29 March that, despite treatment, M’s demoralisation and despair were likely to increase could well be taken as suggesting that M was probably beyond help. But faced with Dr Jureidini’s report, it was not open to the Commonwealth to persist in its uncritical reliance on Dr Frukacz’s opinion and treatment plan – the more so given the likely consequences foreshadowed in the treatment plan itself which gave expression to a counsel of despair.
252 Following on the reports of Dr Dudley and Dr Richards, Dr Jureidini’s report ought to have created the very type of concern agreed to by Mr Williams in his cross-examination about the quality of the contracted staff providing health care services for which the Commonwealth was responsible.
253 I have already highlighted the significance in the differences between what I will compositely call the Jureidini view (i.e. the views of Drs Jureidini, Dudley and Richards) and the Frukacz view. Those differences as I have indicated all focus directly on Baxter itself (i) be this as a contributing cause of mental illness; (ii) as a treatment environment; and (iii) as a place to provide the level of psychiatric care needed by S and M given their conditions on 29 March 2005. The Jureidini view put the Commonwealth on notice not only that the manner in which it was discharging its duty of care was subject to respectable challenge, but also if that challenge was correct, the Commonwealth in acting on Dr Frukacz’s treatment plan was likely to be condemning the applicants to increased demoralisation and despair (as was said of M) and, in my view, a heightening risk of self-harm in M’s case given the magnification of that risk in February-March 2005. I am satisfied that there are reasonable grounds for the Jureidini view and that the view itself is reasonable. I would add that, having heard the evidence of the medical practitioners concerned, I would if I was required (which I am not) prefer Dr Jureidini’s view to that of Dr Frukacz.
254 The Commonwealth, in the state of conflicting opinion in which it found itself, was obliged to act reasonably given its carer obligation. What this required was, not that it simply act on the Jureidini view, but that it obtain such competent, independent, third party opinion(s) on the matters in conflict in relation to each of the applicants as would enable it to make a reasonable judgment as to how it should satisfy the health care needs of each of them. There is no evidence before me that it had done this up to the hearing of these applications. It continued to rely on the appropriateness and adequacy of what was provided by the contracted mental health services providers. In so doing it was acting unreasonably. It was exposing M and, for that matter S, to courses of treatment in circumstances in which there were reasonable grounds for suspecting that they might be exposed to serious adverse consequences without first taking reasonable steps to satisfy itself that such was not likely to be the case.
255 This obligation to take such steps was accentuated in circumstances (i) where a detainee was not able to be assessed and to have his or her treatment proposed by a doctor of choice (the Commonwealth’s practice to which I have referred precludes that choice); and (ii) the Commonwealth was imposing a plan of treatment on a detainee for which the detainee had reasonable grounds of objection (in M’s case, the opinion of Dr Jureidini).
256 I have come to the conclusion that S and M would have been entitled to the grant of injunctive relief against the Commonwealth for this reason. I also consider that, in light of past performance, there were grounds for concern that both were likely to remain at risk of inadequate mental health service provision if they remained at Baxter by reason in particular of the likely continuing inadequacy of the psychiatric services engaged at Baxter but also because of apprehended deficiencies in the implementation of treatment programmes (assuming Dr Frukacz’s was found reasonable in the circumstances). As both S and M have been transferred to Glenside, I need not consider further the significance of these concerns.
CONCLUSIONS
257 In each of these matters the facts speak for themselves. It was the Commonwealth’s duty to ensure that reasonable care was taken of S and M who, by reason of their detention, could not care for themselves. That duty required the Commonwealth to ensure that a level of medical care was made available to them which was reasonably designed to meet their health care needs including psychiatric care. They did not have to settle for a lesser standard of mental health care because they were in immigration detention.
258 Given the known prevalence of mental illness amongst the over 100 long-term detainees at Baxter, and the likely needs of S and M in particular at least since their participation in December 2004 roof top protest and hunger strike, the level of psychiatric service made available to S and M was, and remained, clearly inadequate. Where there was an obvious need to take steps to provide timely psychiatric service after the protest, none were taken. The Commonwealth ought to have appreciated that to rely upon the two monthly visits of Dr Frukacz resulted in inadequate service provision in the circumstances. This was no fault of Dr Frukacz. The Commonwealth neglected to take steps to inform itself of this inadequacy. Its conduct contributed to the progressive deterioration of the applicants over several months.
259 The Commonwealth entered into a complex outsourcing arrangement for the provision of mental health services which left it to contractors and subcontractors to determine the level of services to be supplied. The hallmarks of these arrangements were devolution and fragmentation of actual service provision. The service provision was so structured that there was a clear and obvious needs for regular and systematic auditing of the psychological and psychiatric services provided if the Commonwealth was to inform itself appropriately as to the adequacy and effectiveness of these services for which it bore responsibility. There has to date been no such audit. The Commonwealth has put into place monitoring and working procedures to deal essentially with the immediate and the ad hoc, though these did not avail S and M up to these hearings. The Commonwealth now foreshadows more by way of auditing and monitoring. Nonetheless, it is difficult to avoid the conclusion that the Commonwealth’s own arrangement for outsourcing health care services itself requires review. Its aptness is open to real question.
260 At the times relevant to these proceedings, Commonwealth officers at Baxter entertained a significant level of trust and confidence in the various health service providers, in their professional competence and in the adequacy and effectiveness of the services they provided to detainees. On the material before me I can only conclude that that confidence was founded more on faith than on informed knowledge in relation to some matters critical to the health care of S and M.
261 I have found, particularly in the case of S, continuing failures both to take appropriate steps to arrange psychiatric assessments after medical referrals and to implement adequately treatment plans that had been prescribed. Notwithstanding the receipt of medical opinions from two outside psychiatrists and a GP challenging the treatment plans prescribed at Baxter for S and M, the Commonwealth continued to rely upon the latter without, on the evidence, feeling it necessary to obtain competent, independent, third party advice that it was reasonable to continue to do so. Importantly the outside opinions were to the effect that the conditions at Baxter were themselves a contributing cause of the mental illness of S and M; that Baxter was unable to provide the level of care now required by S and M given their conditions; and that Baxter was an inappropriate treatment environment for them.
262 Those opinions could not be said to be unreasonable. They put the Commonwealth on notice that it needed to take reasonable steps to satisfy itself that it remained reasonable and appropriate to continue to rely upon the treatment plans prescribed at Baxter. This necessitated in the circumstances that independent advice be obtained. This was not done. The consequence was that the Commonwealth was aware that, without properly informing itself as to the reasonableness of its so doing, it continued to commit itself to treatment plans that may have been exacerbating, or else inadequately or inappropriately treating, the very conditions of the two applicants for which it was required to provide health care.
263 I would have granted injunctive relief against the Commonwealth to prevent exposing S and M to that likelihood of harm. Their transfer to Glenside has rendered this unnecessary. I need not in consequence consider the appropriate form of such injunctions. The transfers so late in the day may practically have brought these two applications to an end. They in no way addressed the regrettable need for the applications to be made.
264 I will order in both proceedings (SAD 21 of 2005 and SAD 22 of 2005) that the application against the first respondent be dismissed and that the second respondent pay the applicants’ costs of the application.
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I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 5 May 2005
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Counsel for the Applicant: |
Ms C O’Connor with Mr M Manetta |
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Solicitor for the Applicant: |
Legal Services Commission |
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Counsel for the Respondent: |
Ms S Maharaj with Mr R Prince |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
1 April 2005, 4-5 April 2005, 7-8 April 2005, 11-12 April 2005 |
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Date of Judgment: |
5 May 2005 |
