FEDERAL COURT OF AUSTRALIA

BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060

ORDERS

UPON THE UNDERTAKING OF THE APPLICANT BY HIS COUNSEL:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

(b)    to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT UNTIL THE HEARING AND DETERMINATON OF THE APPLICATION OR FURTHER ORDER:

1.    As soon as reasonably practicable and within 48 hours the Respondents ensure that the Applicant, together with his mother, are brought from Nauru to a location where the Applicant can receive psychiatric inpatient or community-based treatment:

(a)    provided by a specialist treatment service for children, adolescents and families who have been exposed to trauma and multiple adversities;

(b)    provided by specialists not contracted by International Health and Medical Services or Australian Border Force; and

(c)    which includes counselling and support work with the Applicant’s mother where the treating doctor so requires.

2.    The Respondents shall not take any steps to return the Applicant and his mother to Nauru pending the outcome of the present proceedings unless otherwise agreed between the parties or by further order.

3.    The Respondents, in making the psychiatric treatment referred to in order 1 available to the Applicant, not remove him to any location without his mother accompanying him.

THE COURT FURTHER ORDERS THAT:

4.    BAF18, the mother of the Applicant, be appointed as the litigation representative for the applicant.

5.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c) of that Act, the publication of the name of the Applicant (who is to be referred to by the pseudonym BAG18), and the name of the Applicant’s mother (who is to be referred to by the pseudonym BAF18), be prohibited.

6.    The proceeding be listed for a Case Management Hearing on a date to be fixed and not before 13 August 2018.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

introduction

1    This is an application for an urgent interlocutory mandatory injunction. It concerns a 17 year old boy, whom I will refer to as the applicant including when reference is made to him by name in the various expert opinions from which I intend to quote. His mother brings the application as the litigation representative of her son.

2    The applicant and his mother are nationals of Iran. They arrived in Australia in July 2013 as unauthorised maritime arrivals. They were taken into immigration detention on Christmas Island and subsequently transferred by or on before of the respondents to Nauru in August 2013. They have been recognised to be refugees under the Refugee Convention and reside in Nauru under temporary settlement visas granted by the Nauruan Government.

3    The applicant and his mother have been on Nauru since the applicant was 11 years old, and currently reside in the Restricted Accommodation Area (“RAA”) in Regional Processing Centre 1 (“RPC1”). The applicant currently receives health services from International Health and Medical Services (“IHMS”), an entity contracted by the respondents to provide medical services to detainees and refugees on Nauru.

4    The applicant’s interlocutory application seeks orders that, in substance, would require the respondents to, as soon as reasonably practicable and within 48 hours, remove the applicant and his mother from Nauru to a location where the applicant can receive specific psychiatric treatment in accordance with the recommendation of Dr Sarah Mares and Dr Elizabeth Coventry each of which is a Child and Adolescent Psychiatrist who has provided expert medical opinions in support of the applicant’s application. The asserted urgency of the applicant’s removal from Nauru is largely based on Dr Mares’ opinion given on 2 July 2018 that the applicant’s risk of escalating self-harm and or completed suicide is “very high” if he remains on Nauru. The need to remove the applicant’s mother is supported by Dr Mares’ opinion and largely based on her view that any involuntary separation of the applicant from his mother would result in a marked deterioration in health of both individuals. The respondents do not oppose an order removing the applicant’s mother from Nauru if the Court were to make an order removing the son.

5    The interests of justice require a careful and immediate adjudication of the interlocutory application.

THE RELEVANT PRINCIPLES

6    The principles to be applied in determining whether to grant an interlocutory injunction are well established. The applicant must identify the legal or equitable rights which he seeks to have determined at the trial and in respect of which final relief is sought. In general, the adjudication of whether an interlocutory injunction ought to be granted in advance of the final determination of a proceeding requires a two-step analysis. First, one asks whether the Applicant has shown a prima facie case or, put another way, a serious question to be tried. That involves the applicant establishing a sufficient likelihood of success to justify, in the circumstances, the grant of interlocutory relief pending the trial. The second question is whether the inconvenience or injury which the applicant is likely to suffer if the injunction is refused outweighs or is outweighed by the injury which the respondents would suffer if the injunction were granted; this is called the balance of convenience.

7    These principles were established by the High Court in Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzies and Owen JJ). The reference in that judgment to there being a ‘probability’ that at trial the plaintiff will succeed was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“O’Neill”) at [65] as requiring only the satisfaction of the standard I have set out above, namely, that there is a sufficient likelihood of success in the circumstances to grant relief. With that view, Gleeson CJ and Crennan J expressly agreed at [19].

8    It is also to be noted, and of significance in this case, that the two questions are not independent. The more that the balance of convenience supports a respondent the stronger will be the prima facie case that the applicant may need to establish to support an interlocutory injunction. Conversely, where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the grant of an injunction diminishes: O’Neill at [19] (Gleeson CJ and Crennan J) and at [65]-[72] (Gummow and Hayne JJ); Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [52]-[74] (Dowsett, Foster and Yates JJ).

9    In the present case the interlocutory mandatory injunction the applicant seeks extends beyond the apparent preservation of the status quo by requiring the respondents to take positive steps to bring the applicant and his mother to Australia. That requires particular attention to be given to the strength of the applicant’s case for relief: Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-781 (Hoffmann J); Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 49 at 503 (Gummow J).

10    In cases in which the grant or refusal of an interlocutory injunction will in a practical sense determine the substance of the matter in issue on a final basis, the Court should give particular attention to the strength of the applicant’s case for final relief: O’Neill at [72]; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324 at [27]-[28] (Foster J).

11    I turn then to consider the legal rights which the applicant seeks to have determined.

The legal rights to be determined

12    The applicant’s Statement of Claim alleges that the respondents, in the exercise of their powers under the Migration Act 1958 (Cth) (“Act”) and/or s 61 of the Constitution, owe a duty of care to the applicant. It alleges that the duty of care arises including because the respondents:

(i)    transferred the applicant from Australia to Nauru pursuant to ss 198AD of the Act;

(ii)    maintain a significant involvement in the day-to-day operation of regional processing activities in Nauru;

(iii)    maintain a significant involvement in the day-to-day healthcare, education, housing and welfare of the applicant; and

(iv)    assumed responsibility for the applicant and his mother’s health and welfare since their arrival in Nauru, and pending their final settlement elsewhere than Nauru, which has included a transfer to Darwin, Australia in 2015 and to Taiwan from 9 March to 10 May 2018 for treatment of the applicant’s mother’s severe ischaemic heart disease.

13    In relation to the content of that duty of care, it is alleged that the respondents owed and continued to owe the applicant a duty to exercise their statutory powers and non-statutory executive powers to take all reasonable steps to:

(i)    procure a reasonable and adequate standard of medical treatment for the applicant;

(ii)    for that medical treatment to be provided in an appropriate environment; and

(iii)    to avoid or minimise the risk of the applicant suffering harm, including significant physical injury or death.

14    The Statement of Claim alleges that the respondents are in breach of their duty of care because they have failed to provide the applicant with access to an adequate and reasonable standard of medical care to treat the applicant’s mental health condition. As a result of the breach of duty, the applicant is suffering significant harm, is at immediate risk and is exposed to the risk of further serious harm including significant psychiatric and psychological harm or death.

15    It is alleged that an adequate and reasonable standard of medical care for the applicant required, and continues to require, inpatient or community-based psychiatric treatment (which is readily available in a major Australian city):

(i)    provided by a specialist treatment service for children, adolescents and families who have been exposed to trauma and multiple adversities;

(ii)    provided by specialists who are independent of IHMS or Australian Border Force (“ABF”) and with whom the applicant is able to form a therapeutic alliance;

(iii)    while housed in the community with his mother; and

(iv)    which includes counselling work with his mother.

16    The applicant alleges than an adequate and reasonable standard of medical care, as described above, is not available in Nauru. Specifically, that Nauru is ill-equipped to handle complex mental health cases, particularly those cases involving child and adolescent mental health, because there is no permanent child and adolescent psychologist available and no psychiatric child and adolescent facility. Further, and significantly, it is alleged that the environment in Nauru is a causative and a contributing factor to the applicant’s distress, mental illness and increasing risk of self-harm.

application of the principles to this interlocutory application

17    For the purpose of this application, the respondents have conceded that there is a serious question to be tried that they owe the applicant a duty of care to provide him with services reasonably designed to meet his healthcare needs.

18    It is further conceded that the content of the duty of care includes that medical care be provided in an appropriate environment.

19    On the evidence before me, these concessions seem appropriate having regard to my reasoning in Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17, and the interlocutory judgments in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 (Finn, Selway and Lander JJ), MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659 (Gordon J), FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 (“FRX17”) (Murphy J), AYX18 v Minister for Home Affairs [2018] FCA 283 (“AYX18”) (Perram J) and DCQ18 v Minister for Home Affairs [2018] FCA 918 (Robertson J).

20    The respondents also concede that the balance of convenience favours the grant of an injunction. This concession is also sensible for reasons that I will later discuss.

21    However, the respondents do not concede that the applicant has established a serious question to be tried that an adequate and reasonable standard of care is not available on Nauru. In other words, what is not conceded is that there is a seriously arguable case that the respondents have or will breach the duty of care owed to the applicant. For the purpose of the interlocutory application that raises for determination a single issue; namely whether adequate and reasonable care sufficient to discharge the respondents’ duty of care to the applicant can be provided to the applicant on Nauru.

22    To answer that question I need to consider the nature of the applicant’s mental illness, the services that are necessary to provide reasonable medical care to the applicant given his illness, the extent to which those services are available in Nauru, and the extent to which Nauru provides an appropriate environment in which those services can be effectively given.

IS THERE A SERIOUS QUESTION TO BE TRIED?

The evidence relied on in the interlocutory application

23    The applicant relies on the following affidavits, together with the exhibits thereto:

(i)    Affidavit of Dr Elizabeth Rachael Tavell Coventry, Child and Adolescent Psychiatrist, affirmed on 6 July 2018;

(ii)    Affidavit of Dr Sarah Mares, Consultant Infant, Child and Family Psychiatrist, affirmed on 6 July 2018;

(iii)    Affidavit of Mr David Israel Kazatsky, Lawyer, affirmed on 9 July 2018;

(iv)    Affidavit of Ms Arti Chetty, Lawyer, affirmed on 10 July 2018;

(v)    Supplementary Affidavit of Ms Arti Chetty, Lawyer, affirmed on 10 July 2018;

(vi)    Affidavit of Ms Natasha Blucher, Detention Advocacy Manager, affirmed on 10 July 2018.

24    The respondents rely on the following affidavits, together with the exhibits thereto:

(i)    Affidavit of Ms Vanessa Jane Holben, Public Servant, affirmed on 10 July 2018; and

(ii)    Supplementary Affidavit of Ms Vanessa Jane Holben, Public Servant, affirmed on 11 July 2018.

25    Since 12 February 2018 the applicant has been assessed by eight psychiatrists who have prepared medical reports in relation to his mental health. Those reports were in evidence before me. The eight psychiatrists, listed in order of the most current medical reports, are as follows:

(i)    Dr Andrew Mohanraj, Psychiatrist, IHMS, who has prepared two reports, the most recent dated 10 July 2018;

(ii)    Dr Sarah Mares, Infant, Child and Family Psychiatrist, engaged by the solicitors for the applicant, who has prepared two reports, the most recent dated 4 July 2018;

(iii)    Dr Elizabeth Coventry, Child and Adolescent Psychiatrist, engaged by the solicitors for the applicant, who has prepared four reports, the most recent dated 4 July 2018;

(iv)    Dr Beth O’Connor, Psychiatrist (Adult), Médecins Sans Frontières (“MSF”), who has prepared two reports, the most recent dated 3 July 2018 (Dr O’Connor was also contacted by the solicitors for the applicant on 10 July 2018 in communications put before the Court in the Supplementary Affidavit of Ms Chetty);

(v)    Dr Gosia Wojnarowska, Child and Adolescent Forensic Psychiatrist, IHMS, who has prepared two reports, the most recent dated 19 May 2018;

(vi)    Dr Kuo-Yang Huang, Psychiatrist (with general and child adolescent specialities), Taiwan Adventist Hospital, who has prepared four reports, the most recent dated 7 May 2018;

(vii)    Dr Jillian Spencer, Psychiatrist, IHMS, who has prepared one report dated 4 May 2018; and

(viii)    Dr Leon Turnbull, Occupational and Forensic Psychiatrist, engaged by the respondents, whose has prepared one report dated 7 March 2018.

26    I have not formed a final view as to the facts of this matter and I set out my views regarding the facts only to the extent and for the purpose of deciding whether a seriously arguable case exists.

27    I have also not formed a final view in relation to any contest between the opinions given by the psychiatrists whose reports are in evidence. There is a significant degree of conflict between the opinions of the psychiatrists on some issues and a high degree of consensus on others. At this juncture none of the opinions have been tested by cross-examination. In so far as it is necessary to resolve the conflict between competing opinions I have taken into account a range of considerations. To some extent that has been done on the basis of impression but at a level sufficiently valid to address the standard of persuasion applicable on an interlocutory application such as this.

28    In forming a view as to which of the opinions are most helpful to the assessment I need to make, I have had particular regard to:

(i)    the qualifications of each of the psychiatrists and whether or not the doctor has expertise in child and adolescent psychiatry, preferring those that do;

(ii)    the currency of the report, preferring the more recent reports;

(iii)    the comprehensiveness of the report, preferring those reports that are comprehensive particularly because the doctor has had the benefit of considering the opinions of the other psychiatrists and because the historical records held by IHMS and the applicant’s developmental background have been comprehensively assessed;

(iv)    the time spent with the applicant and capacity that the doctor had to interview and engage with the applicant, preferring face-to-face engagement to engagement by telephone and accepting, on the evidence, that the applicant’s reluctance or inability to engage with doctors he regards as agents of the respondents is real and an impediment on the capacity of the doctor to engage with the applicant; and, importantly,

(v)    the extent of consensus on an issue, preferring those opinions most supported by other opinions.

29    Weighing those various considerations, and on most of the issues in conflict, I found that the opinions of Drs O’Connor, Mares and Coventry were more helpful than those of Drs Turnbull, Mohanraj and Wojnarowska, whose reports I found were more helpful than those of Drs Huang and Spencer.

The evidence as to the nature of the applicant’s mental illness

30    I turn then to the nature of the applicant’s illness.

31    In summary, the following diagnosis as well as an assessment of the risk of suicide was given by those doctors whose opinions are in evidence:

(i)    Dr O’Connor diagnosed the applicant with Major Depressive Disorder (“MDD”), Post-Traumatic Stress Disorder (“PTSD”), and Disorder of Extreme Stress Not Otherwise Specified (“DESNOS”) with suicidal ideation and intent that she regarded as very concerning and, as at 3 July 2018, “of increased intensity”.

(ii)    Dr Mares diagnosed the applicant with established and severe MDD and PTSD with persistent suicidal ideation, describing the risk of suicide as “very high” and “urgent”.

(iii)    Dr Coventry diagnosed the applicant with MDD, symptoms of PTSD, and symptoms of DESNOS. She considered the applicant had an escalating risk of suicide heightened by the recent completed suicide of a friend on Nauru.

(iv)    Dr Turnbull described the applicant as suffering from depression with despondency, loss of confidence and suicidal thinking. He considered that “the first task is to keep [the Applicant] alive” but thought that the applicant’s psychiatric condition was an incomplete explanation for his repeated entertaining of suicide.

(v)    Dr Mohanraj diagnosed the applicant with adjustment disorder with depressed mood. He assessed the applicant’s “risk to self” as “low to moderate”, observing that the applicant repeatedly threated to kill himself but that his suicidal intent does not seem very strong and is mainly focussed on the issue of accommodation. Nevertheless, as at 10 July 2018 Dr Mohanraj reported that the applicant “remains suicidal”.

(vi)    Dr Wojnarowska did not consider the applicant to suffer from any identifiable major psychiatric disorder, such as MDD, but considered the applicant to exhibit some criteria of DESNOS and narcissistic personality traits. The risk of suicide was regarded as fluctuating and directly correlated with the applicant’s current situation and his desire to be transferred to Australia.

(vii)    Dr Huang diagnosed the applicant as suffering MDD symptoms with persistent suicidal ideation.

(viii)    Dr Spencer did not diagnose the applicant with any depressive or mental illness and considered that the applicant’s threat of self-harm was motivated by his desire to transfer to Australia.

32    The IHMS medical records for the period August 2013 to March 2018 detail the applicant’s mental health symptoms as including: nightmares, sleep disturbance, panic attacks, significant weight loss, stress, social withdrawal, hopelessness, withdrawal from school two years ago, impulsivity, head-banging, increased anxiety and protectiveness towards his mother, anger, numerous threats of self-harm by scratching face, significant suicidal preoccupation and at least one thwarted suicide attempt (about 18 months ago when the applicant tried to cut his wrists with a knife which his mother prevented).

33    The evidence also refers to recent attempts by the applicant of self-harm. On or around 17 May 2018, the applicant’s mother thwarted an attempted suicide by the applicant after she found a noose and a suicide note he had written for her and reported it to IHMS. In early June 2018, the applicant was reportedly trying to find petrol so that he could set himself on fire. Since his friend committed suicide by overdosing in June 2018, the evidence is that the applicant’s suicidal thoughts have been more intense and he has been seeking medications to overdose on. Further, the applicant has indicated that he has a current plan to commit suicide, including a day and method (which he has refused to disclose) and which he has said he would act on whenever he has the chance.

34    There is also expert medical evidence before me in relation to the applicant’s developmental delay given by Drs Coventry, Mares and O’Connor. That evidence is of relevance to an issue I later deal with concerning whether the applicant could be provided adult psychiatric services. On the question of developmental delay, Dr Mares in her first report said this:

I agree with Dr Coventry’s conclusions about the developmental impact of detention from age of 11 to 17 years on [the applicant’s] emotional and psychological wellbeing. He has not been able to undertake the anticipated tasks of adolescence associated with preparing for independence and adulthood, either emotionally, cognitively, or practically and although he is identified as bright, his vocational opportunities remain profoundly limited. In addition, he has continuous exposure to the reality of potential separation from his mother either because of her need to be transferred for treatment, or because of her death.

35    There is, as will already be apparent, debate as to whether the applicant suffers from a psychiatric illness and as to its nature. Dr Spencer’s diagnosis of no depressive or mental illness is at odds with at least six other opinions. The vast majority of opinions, including those I regard as most persuasive, acknowledge a recognised psychiatric illness involving suicidal ideation. I am satisfied to the requisite standard that the applicant suffers from a psychiatric illness with suicidal ideation. No contention to the contrary was put by the respondents. I am also satisfied, on the same basis, that the risk of self-harm including suicide is real and of sufficient magnitude to require both effective and urgent treatment.

The medical evidence as to what treatment or services are required to treat the applicant’s mental illness

36    I turn then to consider what treatment or services are required to address the applicant’s psychiatric illness and address the risk of self-harm or suicide. For that purpose I take into account the recommendations of those psychiatrists who addressed that issue.

37    In summary:

(i)    Dr O’Connor’s recommendations are current. She recommends intensive residential care to manage the applicant’s immediate suicide risk together with psychological therapy, ideally in a child and adolescent facility. Although the applicant is 17 years of age, she considers it would be more appropriate for him to be treated by a child and adolescent psychiatrist than an adult psychiatrist due to his delayed progression through adolescence. Dr O’Connor recommends the applicant be removed from Nauru on the basis that she does not consider that, due to the lack of appropriately trained staff in addition to the nature of the environment in which the applicant resides, he can be provided with appropriate mental health care on Nauru. Dr O’Connor also recommends the possible trial of medication.

(ii)    Dr Coventry’s recommendations are current. She opines that the applicant requires certainty regarding resettlement and the capacity to build a functional life and hope. She emphasises the importance of their being “therapeutic alliance” between the therapist and the patient and the need to provide the applicant with a therapist he trusts and can establish a rapport with. She recommends psychological treatment not on Nauru with services not contracted by the ABF, and continued treatment by MSF until the applicant is removed from Nauru.

(iii)    Dr Mares’ recommendations are current. Her opinion is that the applicant needs to be moved from Nauru immediately in order to have access to specialist treatment services for children, adolescents and families who have been exposed to trauma and multiple adversities. Those services must be independent of IHMS and the ABF.

(iv)    Dr Turnbull’s opinion was given in early March 2018 and directed largely to the question of whether the applicant should be permitted to travel to Taiwan with his mother. He opined that if the applicant was to stay on Nauru “the solutions are beyond mere psychotherapy” as ultimately psychological intervention “cannot persuade his mind to contradict the reality of [his] circumstances”. He considered that a long-term psycho-therapeutic approach was generally indicated but cautioned that if a return to Nauru was inevitable, any gains would likely be undone on return. He supports the view expressed by Dr Coventry that finding a suitable therapist is important and would not be easy.

(v)    Dr Mohanraj’s recommendations are current. His opinion is that, as the applicant is almost 18 years old, he should be managed by the IHMS Adult Psychiatric Team. The apparent reasons for this recommendation include that the applicant “tends to assume the role of the spokesman for his mother in terms of articulating her medical needs” and developmentally sees himself as a young adult. Dr Mohanraj does not consider that the applicant requires psychotropic medication at present. He recommends that a psychologist provide a Behaviour Activation Schedule. He further recommends considering referring the applicant to an anger management programme. Dr Mohanraj does not see any clear indication that the applicant should be escalated to an overseas centre for any specific mental health intervention. His opinion is that the applicant’s clinical needs can be met by IHMS in Nauru at this stage.

(vi)    Dr Huang treated the applicant in late March through to early May of 2018. He prescribed the applicant with anti-depressants and recommended “proper psychiatric/ psychological services” (without being more specific) and a “change of environment”.

The availability of appropriate medical treatment or services on Nauru

38    I then turn to the evidence as to the services available on Nauru.

39    Ms Holben, Assistant Commissioner, Detention and Offshore Operations Command within the ABF, deposed to her understanding of the health and settlement services available on Nauru. Her evidence is that:

(i)    There is access to the Settlement Health Clinic that is staffed and run by IHMS personnel to provide health services for refugees. The staff at the clinic include general practitioners, nurses, mental health nurses, a counsellor and an obstetrician. The Settlement Health Clinic is located at the Republic of Nauru Hospital and is open during business hours six days per week. It is accessible to refugees in Nauru at no cost. Psychiatrist and psychological services are available, as required, through IHMS. Refugees can also access mental health services through the Settlement Health Clinic, including home-based outreach services for mental health, torture and trauma counselling where clinically indicated. After-hours care for refugees who use the Settlement Health Clinic is provided at the Republic of Nauru Hospital.

(ii)    Healthcare is otherwise available to refugees at the Republic of Nauru Hospital at no cost.

(iii)    IHMS is funded to provide a sub-specialist Child and Adolescent Mental Health Service (“CAMHS”). The purpose of that services includes to partner with Nauruan welfare, educational and child protection services to meet the health-related needs of refugees. The CAMHS team includes, and is not limited to, a team leader, occupational therapist, social worker, mental health nurse, counsellor, clinical psychologist and two child and adolescent psychiatrists. Team members are deployed on an alternating part-time fly-in, fly-out basis.

(iv)    Further, the Commonwealth has provided IHMS the ability to recruit and deploy any clinically-indicated mental healthcare specialist required to ensure that high quality healthcare is available on Nauru.

(v)    Within the RPC on Nauru, there is a health clinic maintained by the IHMS staff. There is also a Managed Accommodation Area (“MAA”) and a Supported Accommodation Area (“SAA”). All of these sites, in addition to the Republic of Nauru Hospital, were, from May 2017, designated as mental health facilities pursuant to the Nauruan Mentally Disordered Persons Act 1963. The SAA was developed to accommodate involuntary inpatients under the Nauruan Mentally Disordered Persons Act 1963. There is also a RAA within the RPC which is located adjacent to the health clinic. Respite accommodation at the RAA is used for families to access respite care on a voluntary basis; admissions are presently arranged on a seven day basis and reviewed according to the healthcare needs of those accommodated there.

(vi)    Since May 2017, RPC1 has been designated as a mental health facility under the Nauruan Mentally Disordered Persons Act 1963.

40    Ms Blucher, currently a Detention Advocacy Manager of the Asylum Seeker Resource Centre, and formerly a Senior Adult Caseworker with Save the Children on Nauru between 5 July 2014 and 3 October 2014, deposed to her knowledge of the accommodation facilities at Nauru.

41    During her time working on Nauru Ms Blucher resided within RPC1, which contains the SAA, RAA and MAA. She had cause to visit the SAA and RAA on an almost daily basis. Her evidence on the nature of those facilities is that:

(i)    The SAA is a single level building located inside RPC1 containing several rooms. It is surrounded by a high fence topped with barbed wire. The gate to the SAA is locked with a passcode, the number to which only the Wilson Security officers who work in the SAA know.

(ii)    The RAA is a double level building located inside RPC1 containing around twice the number of rooms as the SAA. It is surrounded by a high fence topped with barbed wire. The gate to the RAA is locked with a passcode, the number to which only the Wilson Security officers who work in the RAA know.

(iii)    The MAA is a single level building located inside RPC1. It is surrounded by a high fence topped with barbed wire. While she did not have cause to visit the inside of the MAA, from the outside it appeared to her to be smaller than the SAA and the RAA. During her time working on Nauru, the MAA was used for single adult men only.

42    Ms Blucher deposed that she does not consider SAA, RAA or MAA to be an appropriate place for children to reside, even for a short time. This is due to the high fences around small building areas, which makes them resemble a prison or a cage. There is no place for children to play, and the other adults and children kept in these areas are often very unwell and regularly self-harm or scream loudly, which is very distressing.

43    Ms Blucher, further deposed to her understanding that IHMS does not have any facilities to provide inpatient care for children, for either physical or mental health problems.

44    Dr O’Connor, who resides and practices on Nauru, provided evidence that:

(i)    The CAMHS is currently advertising the position of a child and adolescent psychiatrist but has not been able to fill the role. IHMS has not had a regular child and adolescent psychiatrist on Nauru since the departure of Dr Vernon Reynolds in early April 2018. Since that time three different child and adolescent psychiatrists have visited Nauru on four separate occasions, each of which had a duration of approximately a few days to one week.

(ii)    IHMS is not currently capable of providing continuity of care. This is of particular concern as mental health treatment requires the doctor and the patient to develop a relationship of trust.

(iii)    She does not consider that the applicant can adequately be provided with appropriate mental health care in Nauru based on the lack of appropriately trained staff in addition to the nature of the environment in which the applicant resides.

(iv)    Dr O’Connor is currently the only psychiatrist that MSF has on Nauru, and she is an adult psychiatrist. MSF staff are only able to communicate with IHMS about patients if they have the consent of the patient (which consent patients can be reluctant to give due to the lack of trust in IHMS). Further, MSF have been barred from accessing RPC1, RPC2 and RPC3 (including when patients are referred to SAA, RAA or MAA within RPC1).

45    Dr Nicholas Peter Martin, who worked as a Senior Medical Officer for IHMS in Nauru in the period November 2016 to July 2017, deposed in his affidavit affirmed on 5 March 2018 (an annexure to the Supplementary Affidavit of Ms Chetty) that mental health care on Nauru is basic and is provided by visiting psychologists, generally from Australia, and that there is no permanent child and adolescent psychologist available on Nauru. He deposed to his awareness that Dr Reynolds, a practicing child psychiatrist, had formerly travelled to the island periodically. However, to the best of his knowledge there is not currently an expert child and adolescent psychologist available on Nauru to treat the applicant. Further, in his opinion, Nauru is ill-equipped to handle complex mental health cases, particularly child and adolescent mental health cases.

46    Dr Martin also deposed to the capacity to transfer and evacuate patients from Nauru. He gave evidence of the difficulty and inefficiency in medical transfer, which may result in significant delay in medical transfer and treatment.

47    Dr Reynolds, a Child and Adolescent Psychiatrist contracted by IHMS on Nauru in the period August 2016 to April 2018, who was contacted by the solicitors for the applicant on 10 July 2018 in communications put before the Court in the Supplementary Affidavit of Ms Chetty, provided evidence that:

(i)    During his time working on Nauru he would work two weeks out of every three months. There were no other psychiatrists available in the periods that he was not on Nauru.

(ii)    To his knowledge, there has never been a full-time child and adolescent psychiatrists employed by IHMS on Nauru.

(iii)     In his time working on Nauru, he did not meet with the applicant.

(iv)    He does not believe that the applicant will be provided with the treatment he requires on Nauru because the level of care is “completely inefficient”, mental health staffing is “minimal” and the services do not provide appropriate supervision.

(v)    The RAA is inappropriate accommodation for young people and the environment is “toxic and traumatising”. The RAA consists of prefabricated housing with security guards sitting outside who barely monitor the people inside.

48    The evidence as to the availability of services given by Ms Holben was largely of a general nature focussed more on the potential capacity for a service to be provided rather than the actual and practical reality of whether necessary services are provided and provided in an adequate and timely way. On this issue I prefer the evidence of Dr O’Connor (who practices on Nauru) and Drs Reynolds and Martin (who formerly practiced on Nauru including by directly providing services to patients through IHMS). Their evidence supports a finding that the services required for the applicant are not available or adequately available on Nauru.

49    I should add that, in reliance on the opinion of Dr Mohanraj, the respondents contended that the applicant did not require child and adolescent psychiatric services and that adult psychiatric services were adequate for his needs. That opinion is at odds with the firmly expressed opinions of Drs Mares and Coventry, who are both specialists in child and adolescent psychiatry, and also the opinion of Dr O’Connor. The reasons of Dr Mares relating to the applicant’s development delay, some of which I have already set out above, are persuasive. For those reasons and because Dr Mohanraj has no specialised expertise in child and adolescent psychiatry, saw the applicant for less than an hour and did not consider the views of Drs Mares and Coventry, I prefer the evidence of Drs Mares, Coventry and O’Connor.

50    I am satisfied that there is a serious question that the applicant requires the services recommended by Drs Mares and Coventry and that those services are not available or not adequately available on Nauru.

The evidence as to whether Nauru is an appropriate environment to treat the applicant’s mental illness

51    Although to a significant extent the environment on Nauru has already been dealt with, I need to further refer to the evidence of the psychiatrists in order to more fully explain why I am persuaded to the requisite standard that:

(i)    the applicant’s continued residence on Nauru is a causative and contributing factor in his mental illness and substantial risk of self-harm; and

(ii)    Nauru does not provide a sufficiently appropriate environment for the effective provision of treatment and other services which the applicant requires, including in particular those necessary to address his substantial risk of self-harm.

52    For that purpose, and in particular to deal with the likely ineffectiveness of services provided to the applicant by IHMS on Nauru, I refer to the following evidence.

53    The reports of Drs Mares, Coventry and O’Connor record their express opinions that the applicant is currently unable to engage in a meaningful therapeutic relationship with staff from IHMS. In this regard, Dr Mares said that:

Effective treatment and reducing his risk of self-harm and suicide cannot happen while [the applicant and his mother] are held on Nauru. This is primarily because the environment is a precipitating and perpetuating factor, but also because there is limited availability of specialist therapeutic services there and he has lost trust in and willingness to engage with the services contracted by ABF.

54    The significance of the applicant’s loss of trust and willingness to engaged with IHMS or services contracted by the ABF was explained by Dr Coventry in the following terms:

It is not unusual for people to present differently to different clinicians. This is often due to whether the patient perceives us as safe. A psychiatric examination is inherently intrusive as we ask very personal questions regarding a person’s internal life. If a patient does not perceive the psychiatrist or clinician as neutral and benignly kind this will affect both how the patient presents and the quality of the information received from them. This is why cross-sectional and once-off assessments can be problematic in establishing rapport and clarifying diagnoses. In the emotionally charged situation of prolonged and indefinite detention the perceived partiality is going to effect the patient’s interaction with the clinician.

55    While they did not express an opinion on this issue directly, Drs Turnbull and Wojnarowska observed that the applicant was unwilling to engage with them because of the fact that he perceived them as acting on behalf of, or being associated with, IHMS. Further, in his review of the applicant’s IHMS medical records, Dr Turnbull identified that the applicant had been engaged by IHMS in a range consultations and interventions, but that he had declined to fully participate in that treatment on many of those occasions.

56    More broadly as to the environment on Nauru and the ability to effectively treat the applicant for his mental illness while he is located on Nauru, Dr Mares said this:

As above, [the applicant] is at urgent and increasing risk of self-harm or completed suicide if he remains on Nauru. He is suffering an established and severe episode of Major Depression and PTSD, with persistent suicidal ideation, has reported plans to commit suicide and thinks of death as “a comfort”. He is living in a community where self-harm is common and the recent completed suicide by a friend increases his risk considerably. All five psychiatrists who have assessed him and provided reports identified, in their different ways, that the environment of Nauru is a causative and contributory element of his depression and his increasing risk of self-harm.

57    The concern expressed by Dr Mares was echoed by Drs O’Connor, Coventry and Huang in their various reports.

BALANCE OF CONVENIENCE

58    The balance of convenience strongly favours the grant of the interlocutory relief being sought by the applicant. Like Murphy J in FRX17 and Perram J in AYX18, I regard risk of self-harm including suicide to be a powerful and compelling consideration. The accessibility to appropriate treatment to address the applicant’s psychiatric illness is also a weighty consideration which favours the applicant. Against that, no specific issues of prejudice were raised by the respondents.

59    I nevertheless take into account that the respondents will most likely incur significant expense which, despite the undertaking as to damages proffered on behalf of the applicant, will likely be irrecoverable if the final relief sought by the applicant is not granted. However, like Perram J in AYX18 at [29], given that a life is at stake I do not regard that factor as being as important as it might otherwise have been.

60    I accept the respondents’ contention that, in a practical sense, the interlocutory orders sought provide relief which may not turn out to be substantially different to the final relief sought. For that reason I give particular attention to the strength of the applicant’s prima facie case. That however must be counterbalanced by the strength of the applicant’s case on the balance of convenience. In the result, I consider that the making of interlocutory orders is justified.

61    I accept the evidence of Dr Mares that the services required for the applicant are available in Australia. I also see force in the opinions expressed by Drs Mares and Turnbull to the effect that it would be best that the applicant be provided treatment in the absence of an overhanging threat that he may be returned to Nauru. However, the application made did not expressly seek an order that the applicant be removed to Australia permanently or otherwise, and there was no evidence to support the proposition that the necessary services are uniquely available in Australia. In so far as the applicant seeks such an order I am not satisfied on the evidence before me that it should be made.

62    Otherwise the terms of the orders that should be made to reflect these reasons are not in contest. I will make orders accordingly.

Associate:

Dated:    16 July 2018