FEDERAL COURT OF AUSTRALIA

DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050

ORDERS

THE COURT NOTES THE FOLLOWING UNDERTAKING GIVEN BY THE RESPONDENTS:

The Respondents undertake not to take steps to return the Applicant to Nauru pending the outcome of the present proceedings unless otherwise agreed between the parties.

THE COURT ORDERS THAT:

1.    As soon as reasonably practicable and:

(a)    within 48 hours the Respondents ensure that the Applicant with her mother are brought to Australia from Papua New Guinea;

(b)    by 6 July 2018 the Respondents ensure that the Applicant’s father is brought to Australia from Nauru to join his family;

to ensure that the Applicant receives treatment at an Australian tertiary level hospital in accordance with the recommendations of Michael Harbord dated 28 June and 1 July 2018 including, as soon as practicable:

(i)    an MRI brain scan with sedation performed by a paediatric anaesthetist;

(ii)    EEG testing; and

(iii)    review and any treatment overseen by a paediatric neurologist.

THE COURT ORDERS BY CONSENT THAT:

2.    DJA18, the father of the Applicant, be appointed as the litigation representative for the Applicant.

3.    Under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c) of that Act, publication of the name of the Applicant, the name of the Applicant’s father (who is to be referred by the pseudonym DJA18), and the name of the Applicant’s mother (who is to be referred by the pseudonym DJB18) be prohibited.

4.    On or before 13 July 2018, the Respondents provide the Applicant and the Applicant’s litigation representative with the complete medical records, current up to the date of productions, of:

(a)    the Applicant;

(b)    the Applicant’s father; and

(c)    the Applicant’s mother.

5.    On or before 10 August 2018, the Respondents provide the Applicant and the Applicant’s litigation representative with complete copies of the following documents and records of and relating to the Applicant, whether electronically or in any other form, from the date when the Applicant’s mother was first recorded as being pregnant with the Applicant, to the date of production, including without limitation all correspondence including emails and reports which refer to:

(a)    the Applicant’s medical conditions or health;

(b)    the Applicant’s mother’s medical conditions or mental health during pregnancy and since;

(c)    the Applicant’s father’s medical conditions or mental health since commencement of the pregnancy of his wife, and since;

(d)    medical alerts, transfers, provision of medical (including psychological or psychiatric) services to the Applicant, her mother or her father;

(e)    the personal and physical needs of the Applicant, her mother or her father; and

(f)    any reference to or description of any aspect of the fathers; or the mother’s mental or physical health,

passing between the Respondents, Border Force, IHMS, and contracted immigration security providers on Nauru.

6.    On or before 27 July 2018, the Respondents provide the Applicant and the Applicant’s litigation representative with complete records relating to the decision to transfer the Applicant to Papua New Guinea, including all records passing between the Respondents, border force, IHMS, ‘Docto’, contracted immigration security providers on Nauru and in Papua New Guinea, and any other person in Papua New Guinea.

7.    The proceeding be listed for a case management hearing on 27 September 2018 at 9.30am.

8.    The parties have liberty to apply generally. The Respondents have liberty to apply if it proves impracticable to comply with Order 1(b) above.

9.    Costs reserved.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    This is an application for an urgent interlocutory mandatory injunction. It concerns a two year old girl, DIZ18, who is an inpatient in a Papua New Guinean hospital suffering from herpes encephalitis, a serious and life-threatening neurological condition. Her father, DJA18, brings the application as her litigation representative under Division 9.6 of the Federal Court Rules 2011 (Cth), but for convenience I will describe DIZ18 as the applicant.

2    The applicant’s parents fled Iran to Australia, arriving in 2013 without a visa. They were taken by the Commonwealth to be detained on Nauru, and recognised as refugees under the Refugee Convention in 2014. The applicant was born on Nauru on 5 June 2016, and was subsequently also granted refugee status. The family lives on Nauru under temporary settlement visas granted by the Nauruan government.

3    The applicant became ill on 7 June 2018 and her condition seriously deteriorated over the ensuing days. On 12 June the treating doctors and consultant specialists with International Health and Medical Services (IHMS), the medical service contracted to provide health care to detainees and refugees on Nauru, diagnosed her as suffering from severe sepsis and made a provisional diagnosis of meningo-encephalitis. IHMS recommended that the applicant be urgently medically evacuated to a tertiary level hospital in “Australia or to a third country with comparable medical capabilities to manage a paediatric emergency with a paediatric ICU”. That day a senior officer of the Australian Border Force (ABF) involved in the decision inquired whether it was possible for the applicant to instead be evacuated to a hospital in PNG or Taiwan. The coordinating nurse at IHMS informed the ABF that the Pacific International Hospital (PIH) in PNG was prepared to accept the applicant for treatment.

4    Notwithstanding the Senior Medical Officer reiterating IHMS’s recommendation that an Australian hospital with paediatric ICU capability was the “first option”, and expressing concern that PIH did not have appropriate capability, the ABF made arrangements for the applicant to be urgently evacuated to PIH on 14 June, accompanied by her mother.

5    In substance the application seeks orders to require the respondents, the Minister for Immigration and Border Protection and the Commonwealth of Australia, to urgently bring to Australia: (a) the applicant and her mother from PNG; and (b) the applicant’s father from Nauru; so that the applicant can undergo certain urgent medical tests and treatment in an appropriate tertiary level hospital, essentially on the basis that such tests and treatment are not available in Nauru and PNG.

6    I am satisfied that it is appropriate to order an interlocutory injunction in the terms the applicant seeks. I do not express a final view on the evidence, but in my view there is a strongly arguable case that PIH did not have appropriate capabilities to provide adequate healthcare to the applicant and that in sending her there the respondents failed to meet their (accepted) duty of care. Dr Michael Harbord, paediatric neurologist, provided an opinion in which he states that in Australia the standard of care for a child suffering from herpes encephalitis requires an MRI brain scan (MRI) under sedation and an electroencephalogram (EEG) within a week of diagnosis.

7    The applicant was admitted into PIH on 14 June and as at 3 July 2018, had not had either an MRI or an EEG. It is uncontentious that, at present, PIH does not have the facilities to conduct an MRI under sedation and that the only neurologist able to conduct an EEG at PIH is away on a break of unspecified duration.

8    The applicants came before me at 3:00 pm on Friday 29 June seeking an urgent injunction. On the respondents giving an undertaking not to take steps to remove the applicant and her mother back to Nauru prior to the hearing of the application, I adjourned the hearing to 3 July. At the hearing on that date I made orders requiring the respondents to urgently bring the applicant and her parents to Australia to ensure that she receives treatment in accordance with the recommendations of Dr Harbord including, as soon practicable, an MRI under sedation performed by a paediatric anaesthetist, an EEG, and review and any treatment overseen by a paediatric neurologist. I now provide my reasons for doing so.

PRINCIPLES FOR AN INTERLOCUTORY INJUNCTION

9    The principles governing the grant of an interlocutory injunction are settled. After identifying a legal or equitable right sought to be determined at the trial and in respect of which final relief is sought, the applicant must establish that:

(a)    there is a prima facie case or a serious question to be tried, in the sense that if the evidence remains as it is at trial there is a probability that the applicant will be held entitled to the relief sought; and

(b)    the balance of convenience favours the granting of the injunction. That is, whether the inconvenience or injury which the applicant will be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondents would suffer if an injunction were granted. It includes consideration of whether damages or other remedies would be an adequate remedy.

10    The two questions are not independent. The more 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: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-3 per Kitto, Taylor, Menzies and Owen JJ; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [52]-[74] per Dowsett, Foster and Yates JJ.

11    In the present case the mandatory injunction sought by the applicant requires the respondents to take positive steps to bring the applicant and her parents to Australia. That will involve significant expenditure, likely more than obedience to a prohibitive injunction. There is therefore a higher risk of loss to the respondents if an injunction is wrongly granted (in the sense that the applicant fails to establish the asserted right at trial) and this circumstance requires particular attention 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 per Hoffmann J; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 503 per Gummow J.

THE PARTIES’ COMPETING POSITIONS

12    For the purposes of the application counsel for the respondents concedes that:

(a)    there is a prima facie case that the Minister or the Commonwealth owes the applicant duty of care to provide her with healthcare at an appropriate level to treat her diagnosed condition of herpes encephalitis; and

(b)    the content of that duty includes a duty to ensure within a reasonable time that the applicant is in a place where she can receive appropriate medical tests and continuation of treatment for that condition, and appropriate testing in this case includes an MRI and an EEG.

13    Those concessions are sensible having regard to Bromberg J’s reasoning in Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17; [2016] FCA 483 (S99/2016), and the interlocutory decisions in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83; [2004] FCAFC 93; MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659; [2012] FCA 694 per Gordon J; FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 per Murphy J; AYX18 v Minister for Home Affairs [2018] FCA 283 per Perram J; and DCQ18 v Minister for Home Affairs [2018] FCA 918 per Robertson J. As in S99/2016, the evidence discloses an arguable case that the applicant is dependent on the Commonwealth for her survival and sustenance, and that it is responsible, either directly or indirectly, for the medical care she receives. Further, there is evidence that the Commonwealth has been closely involved in the decision to evacuate the applicant to PNG rather than to Australia and thereby assumed responsibility for that decision. If the Commonwealth is to be involved in medical decisions, such as where a patient will be treated, it must do so competently.

14    The respondents also concede that the balance of convenience favours the grant of an injunction. That concession too is sensible. The risk to the health of this young child, whom the medical evidence indicates is suffering from a serious neurological condition (which the evidence indicates is likely to require ongoing treatment and involve serious ongoing risks) carries far more weight in the balance than any wasted expenditure the Commonwealth may suffer.

15    The areas of disagreement between the parties relate to the location of the applicant’s future medical treatment and the adequacy of healthcare provided and proposed to be provided to her.

16    Counsel for the applicant submits that the healthcare the respondents have provided in PNG and propose to provide to the applicant is plainly inadequate, as indicated by the evidence that:

(a)    IHMS and consultant specialists repeatedly recommended that the applicant be medically evacuated to a tertiary hospital in Australia or in another country with a compatible facility that can manage a paediatric emergency within a paediatric ICU, and PIH is not comparable and does not have appropriate capability; and

(b)    PIH has not provided adequate healthcare to the applicant to date, and is unlikely to be able to do so in the future, including because PIH: (i) did not conduct an MRI or an EEG; (ii) does not presently have the equipment or staff to do so; and (iii) proposes to repatriate the applicant back to Nauru soon, all of which are inconsistent with providing adequate healthcare; and

(c)    the standard of healthcare available on Nauru for a person suffering from herpes encephalitis is obviously inadequate.

17    Counsel for the applicant also contends that, since the applicant’s father speaks fluent English while her mother does not, it is imperative that the applicant’s father accompany the applicant to ensure informed consent can be given. The evidence as to the psychiatric state of the applicant’s mother and father is said to further indicate that they should not be separated from the applicant.

18    The applicant therefore seeks an injunction in the following terms:

As soon as reasonably practicable and:

(a)    within 48 hours the Respondents ensure that the Applicant with her mother are brought to Australia from Papua New Guinea;

(b)    by 6 July 2018 the Respondents ensure that the Applicant’s father is brought to Australia from Nauru to join his family;

to ensure that the Applicant receives treatment at an Australian tertiary level hospital in accordance with the recommendations of Michael Harbord dated 28 June and 1 July 2018 including, as soon as practicable:

(i)    an MRI brain scan with sedation performed by a paediatric anaesthetist;

(ii)    EEG testing; and

(iii)    review and any treatment overseen by a paediatric neurologist.

19    The respondents do not concede that the level of medical care provided to the applicant in PNG is inadequate nor that it is likely to prove inadequate in the future. The respondents offer to consent to an interlocutory injunction in the following terms:

As soon as reasonably practicable, and in any event within 7 days, the Respondents ensure that the Applicant undertakes MRI and EEG tests in a tertiary level hospital or health facility with equipment that is appropriate and specialist staff that are sufficiently qualified to treat a patient of the Applicant’s age and circumstances in accordance with the recommendations of Dr Michael Harbord dated 1 July 2018 or as agreed between the parties.

20    The injunction differs from that sought by the applicant in several important respects, namely that it does not contain provision for:

(a)    MRI and EEG testing to be conducted without any further delay. Although the applicant has been an inpatient at PIH since 14 June the respondents seek a further seven days within which procure appropriate equipment and specialists and to undertake such testing;

(b)    the applicant to be brought to a tertiary level hospital in Australia for testing and continuation of any necessary treatment to be overseen by a paediatric neurologist. The respondents say PIH can provide the facilities and personnel required; and

(c)    the applicant’s father to be brought to Australia so as to ensure the applicant’s parents understand and are able to provide informed consent to any necessary medical treatment. The respondents say this is not necessary.

THE RELEVANT FACTS

21    The applicant relies on three affidavits of Jennifer Kanis, a senior associate at Maurice Blackburn Lawyers, two affirmed on 29 June and another affirmed on 2 July 2018, together with exhibits including: (a) IHMS clinical records relating to the applicant (clinical records); (b) opinions by Dr Harbord dated 27 June and 1 July 2018 concerning the applicant’s condition and appropriate treatment; and (c) an unsworn affidavit of Dr Nick Martin, General Practitioner and former senior medical officer of IHMS on Nauru concerning the adequacy of paediatric healthcare on Nauru and difficulties in communicating with the PIH.

22    The respondents rely on the affidavit of Vanessa Holben, Assistant Commissioner, Detention and Offshore Operations Command within the ABF, affirmed 3 July 2018, together with exhibits including: (a) medical records relating to the applicant; and (b) emails between ABF and IHMS regarding the applicant’s medical evacuation.

23    There was no cross-examination of the deponents, some of the evidence is hearsay and Dr Martin’s affidavit is presently unsworn. 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 the present application.

The applicant falls ill

24    The applicant fell ill on 7 June 2018, two days after her second birthday . She was taken by her parents to the IHMS clinic, where she was prescribed paracetamol syrup to take every four hours. On 11 June 2018 the applicant’s symptoms became significantly worse and she was again taken to the IHMS clinic. She presented with symptoms of mouth lesions, fever, irritability and dehydration. On this occasion she was given fluid via an intra osseous needle in her left tibia and remained in a back room of the IHMS clinic for observation and medical management until 12 June 2018.

25    On 12 June 2018 the intra osseous line was removed and IHMS doctors attempted to insert an intravenous line into the applicant but were unsuccessful. The applicant was taken by ambulance to the Republic of Nauru Hospital (RoN Hospital) where a central line was inserted into the applicant under general anaesthetic. The applicant was, however, denied admission to the hospital because of a bed shortage and she was returned to the IHMS clinic where her treatment was continued in a back room.

26    On 12 June, IHMS consulted Dr John Field, an Emergency Physician and Intensive Care Specialist in Australia, by telephone. He provided a report which briefly noted the applicant’s history and symptoms and said “I am very concerned this represents severe sepsis which carries a high mortality.” Dr Field recommended a course of medication and “urgent evacuation to a first world tertiary hospital”.

27    The same day Dr Shane George, a Paediatric Emergency Physician in Australia, provided a report assessing the applicant’s condition. His report noted “a history and clinical features of severe sepsis, and concerns of a central nervous system source” and said that “meningo-encephalitis is suspected”.

28    I now turn to deal with the facts relevant to whether there is an arguable case that the applicant has been provided with inadequate health care treatment.

The medical recommendation to evacuate to Australia

29    IHMS’s clinical records on 12 June record a provisional diagnosis of suspected meningo-encephalitis noted that:

IHMS have advised that this girl needs admission to a Paediatric Intensive Care Unit in Australia. Await transfer.

(Emphasis added.)

30    On 12 June at 4:24 pm, Antonia Graham, a coordinating registered nurse at IHMS, emailed a request to ABF seeking the applicant’s urgent medical evacuation. She noted that Dr Field and Dr George “both have high concerns of sepsis with high mortality and advise immediate transfer to a tertiary facility with a paediatric intensive care unit.” She also said:

IHMS is aligned with this advice and recommends immediate medevac to Australia or a third country with compatible medical capability that can manage a paediatric emergency with a paediatric ICU.

Without transfer to an appropriate location, the child is at risk of further deterioration and a fatal outcome.

(Emphasis added.)

31    Bridget O’Brien, Acting Superintendent of Offshore Health Operations within the ABF, responded to Ms Graham asking “can you please confirm whether PIH or Taiwan are options, and in that order please”. Ms Graham replied by email shortly after that, stating that “PIH are willing to accept the client under the Consultant Paediatrician Dr Mary Baki.”

32    Ms O’Brien immediately emailed back and said that the Commonwealth Department of Home Affairs (the Department) would engage with the PNG government to seek approval for transfer of the applicant.

33    Later that evening, at 7:19 pm, Dr Kalesh Seevnarain, Senior Medical Director of IHMS, was concerned enough about the proposition that the applicant would be sent to PNG that he emailed Elizabeth Hampton at the Department. He attached the email chain between Ms O’Brien and Ms Graham and said:

Thank you for the call to discuss the patient.

To note:

-    IHMS continues to recommend transfer to Australia or third country of comparable healthcare as its first option for transfer

…

-    While PIH has accepted the patient IHMS is unsure of their paediatric ICU capability. However, we believe that such a transfer represents a step up in care for the patient.

(Emphasis added)

34    The following morning, at 11:06 am, Dr Seevnarain emailed Ms O’Brien and reiterated the recommendation that the applicant be medically evacuated to Australia. He said:

Again, I would like to reiterate that IHMS would recommend Australia as the first option as we are of the opinion that the child requires paediatric ICU capability.

While PIH has accepted the child, IHMS does not believe that they have the capability to manage the case.

A transfer to PIH would be seen as a step up in health care.

35    Ms O’Brien responded shortly afterwards as follows:

Thanks for providing additional information. I note that the department confirmed PNG, please work towards PNG.

The department relies on IHMS to confirm appropriate facilities and OHOS was advised that PIH has the capacity. At no stage has IHMS advised the department before now that IHMS feels that PIH does not have the capability to manage the case. When I spoke with Deky [Dr Deky Souvannavong, Area Medical Director of IHMS] yesterday I told him standard pathways need to be explored ie: IHMS to confirm PNG or Taiwan, it was at this stage IHMS confirmed PIH. I am sure you can see the dilemma here for the department.

36    Dr Seevnarain then emailed Ms O’Brien attaching the email chain between him and Ms Hampton from the previous evening. Ms O’Brien acknowledged the email chain but said “however if not every party is receiving the same information then there will be conflicting information”.

37    The applicant was not evacuated to PNG until 14 June, arriving at PIH at around 4:00 pm.

38    The applicant is a young child with a provisional diagnosis of meningo-encephalitis, who at the time was suffering from severe sepsis with a high risk of mortality. Each doctor and specialist who recommended her medical evacuation recommended that she be taken to a tertiary hospital in Australia or another “first world” country which could manage a paediatric emergency with a paediatric ICU.

39    Ms O’Brien’s email suggests that the ABF was committed to taking the applicant to PNG rather than Australia because of “conflicting information”. The only “conflicting information” in the email records is that – in response to Ms O’Brien’s query on 12 June as to whether PIH or Taiwan were options for the applicant’s treatment – the coordinating nurse told her that PIH were willing to accept the applicant.

40    In my view there is a strongly arguable case that in evacuating the applicant to PIH rather than to a tertiary hospital in Australia the respondents provided inadequate medical care to the applicant. The evacuation resulted in the applicant being sent to a hospital which, at least arguably, did not have the capability to properly respond to her medical needs. Essentially I say this because:

(a)    first, it is difficult to see how PIH can properly be described as comparable to a first world tertiary hospital when it cannot perform an MRI under sedation on a child or perform an EEG;

(b)    second, any “conflicting information” provided to ABF, to the extent it existed, was arguably immaterial in circumstances where clear medical recommendations had been made and reiterated by IHMS, the decision was not set in stone on 13 June, and the applicant was not transferred until 14 June; and

(c)    third, it is hard to see how the decision to medically evacuate the applicant to PNG rather than to Australia was motivated by healthcare considerations.

The failure to perform an MRI brain scan

41    On the applicant’s arrival at PIH late on the afternoon of 14 June the consultant paediatrician at PIH, Dr Mary Baki, assumed clinical responsibility for her treatment.

42    Dr Baki made a provisional diagnosis of herpes encephalitis, and the evidence is that by that time the applicant was responding well to Acyclovir, the herpes medication recommended by Dr George and continued by Dr Baki. PIH performed a CT scan of the applicant’s brain on 15 June, which was assessed as unremarkable. The CT scan noted though that a normal brain scan does not rule out the possibility of an acute and encephalitic process and, if clinically warranted, a follow-up contrast enhanced computed tomography scan (CECT) is recommended.

43    Ms Kanis raised the question of when an MRI would be performed in correspondence with Dejan Lukic of the Australian Government Solicitor on 17 June. On 18 June Mr Lukic emailed Ms Kanis stating that PIH :

…confirmed that a CT scan was done instead of an MRI in [the applicant’s] case, because an MRI scan would require at least 30 to 45 minutes of [the applicant] lying sedated in a claustrophobic environment. Further, PIH has advised that such prolonged sedation can be unsafe in a child recovering from encephalitis.

It appears that Mr Lukic or his instructors in the Department had been informed of this by PIH. As I explain, however, this was not the case.

44    Ms Kanis continued to press the matter of an MRI with Mr Lukic over the ensuing days. On 28 June 2018 she provided an expert medical opinion she had obtained from Dr Harbord, dated 27 June 2018. Dr Harbord was admitted as a fellow of the Royal Australasian College of Physicians in 1984 and then undertook advanced training in paediatric neurology in London, UK, and in Toronto, Canada. Since 1990 he has been a visiting Paediatric Neurologist at Flinders Medical Centre. He is a lecturer in the Paediatric Department, Flinders University, the Senior Neurologist for Disability SA, and he has published over 50 papers on various neurology topics.

45    In relation to the requirement for an MRI Dr Harbord said, in summary, that the literature confirms brain injury as a result of herpes encephalitis is relatively common. In his medical opinion, the standard of care required the applicant to undergo an MRI under anaesthetic as soon as possible, which procedure is regularly and safely undertaken in Australian hospitals. In Dr Harbord’s view, given the potential for cognitive impairment and long-term deficits in the frontal and temporal lobes arising from herpes encephalitis, and the problem of detecting these changes in a 2-year-old, the standard of care would also require ongoing monitoring. Dr Harbord considered the opinion expressed by the applicant’s treating clinician at PIH that she could return to Nauru in this context reflected a “lack of expertise and familiarity with the potential neurological consequences” of the applicant’s condition.

46    In a supplementary opinion dated 1 July 2018 Dr Harbord expanded on the need for the applicant to have an MRI as soon as possible, as follows:

The standard of care in Australia is that an MRI is conducted within a week of the onset of herpes encephalitis.

It is important to do the MRI as soon as possible to increase the chances of seeing the signal changes in the brain which represent the areas of inflammation. The longer you wait to do the MRI the more likely it is that the areas of inflammation will disappear.

As such, a delayed MRI scan may look normal but this does not mean that there has not been some patchy scarring of the brain and brain damage. In my opinion the MRI should be conducted as soon as possible on this child and ideally within one week.

An MRI will provide an indication as to the clinical outcomes for the patient. If multiple areas of inflammation are present, then the patient is more likely to have epilepsy, memory loss, language loss and loss of general cognitive function.

An early MRI allows treating medical practitioners to know what to anticipate in the client’s treatment. Without an MRI, or with a delayed MRI, greater clinical monitoring is required. A failure to undertake an MRI means that there is much less information about the longer term outlook for this child and the treating medical practitioners are less prepared about what they will need to treat in the future.

47    It is uncontentious that PIH did not perform an MRI. At the hearing on 29 June counsel for the respondents informed the Court that:

…it wasn’t for want of equipment or a specialist that an MRI has not been done so far. It was simply a judgement made…by the doctors in PNG that it wasn’t necessary.

Counsel also said:

Well, all that the applicant so far has suggested is that there needs to be an MRI. There is an MRI on PNG. There is a person who can conduct it. The judgement was made by the treating doctors that it wasn’t necessary at this stage.

That was not correct.

48    At the hearing on 3 July, counsel informed the Court that although he was still instructed that an MRI scan was unnecessary, it had recently become clear that PIH was not in fact equipped to carry out an MRI scan safely on a child of the applicant’s age. According to Ms Holben’s affidavit, on 30 June 2018 PIH for the first time advised the Department that it “does not presently have compatible anaesthetic equipment and ancillaries to sedate a child while conducting an MRI”. She said that steps are now being taken by PIH and ABF to obtain the necessary anaesthetic equipment to perform an MRI on the applicant within the next seven days.

49    There is a strongly arguable case that, together with the other matters to which I refer, the failure to perform an MRI on the applicant shows a failure to provide her with adequate healthcare. The respondents concede that an MRI is a necessary test and, notwithstanding that the applicant has been in PIH since 14 June, she has not been provided it. For the purposes of the application I accept Dr Harbord’s opinion that an early MRI is important in order to increase the chances of being able to discern any changes in the brain and allow treating medical practitioners to know what to anticipate in the applicant’s treatment.

50    Unfortunately, the applicant is now in the position, through no fault of her own, that an MRI has not been performed and her treating doctors may have greater difficulty in understanding whether she has suffered a brain injury and if so to what level, and monitoring and treating her condition. I am not prepared to allow a further delay of seven days on top of what has already occurred. I am also reluctant to allow the applicant to be the first child to undergo an MRI under sedation at PIH, with the hospital having been rushed into getting appropriate equipment and training appropriate staff.

The failure to perform an EEG

51    Dr Harbord explained in his first opinion that an EEG, which monitors electric activity in the brain, was required in order to detect if the applicant was experiencing electrographic seizures of 1 to 2 seconds that may not otherwise be perceptible. He expanded on this in his supplementary opinion:

An EEG is also important to do as it will tell us if there is any brief seizure activity that is not visible clinically. In cases of acute herpes encephalitis, such as this child has, you would treat the child with anticonvulsants until the EEG normalizes. This treatment would be for 4 – 6 weeks. The treating practitioner would then repeat the EEG and if normal and there were no seizures the child would be weaned off the anticonvulsants.

If the EEG is not undertaken, there is a lost opportunity to diagnose if seizure activity is occurring. Standard of care in Australia would see an EEG done within one week of the onset of herpes encephalitis. The longer the delay in undertaking the EEG, the less likely it will be to see brief seizure activity and diagnose if seizure activity is actually occurring.

(Emphasis added.)

52    Ms Holben said that, following the hearing on 29 June 2018, the Department again sought advice from PIH as to whether it was prepared to perform an EEG on the applicant. On 30 June 2018 PIH for the first time advised the Department that, while it had the equipment, “the [EEG] service has not yet been launched” because the hospital had only recently recruited a neurologist, Dr Conde, to perform the test, and Dr Conde was presently away on a break.

53    I am satisfied that there is a strongly arguable case that the failure to perform an EEG on the applicant amounts to inadequate medical care. The respondents concede that an EEG is a necessary test and, notwithstanding that the applicant has been in PIH since 14 June and Dr Harbord’s evidence that the standard of care requires an EEG within a week of onset of herpes encephalitis, she has not yet been provided it.

54    Ms Holben said that PIH will “call upon” Dr Conde to oversee/perform an EEG within the next seven days. I am not prepared to allow a further seven-day delay, particularly when I cannot be sure that Dr Conde will prove to be available.

The proposal to speedily repatriate the applicant back to Nauru

55    In his first report Dr Harbord said that it would be inappropriate to repatriate the applicant back to Nauru once her three-week round of treatment for herpes encephalitis concludes:

…this child requires that her clinical state is monitored by a specialist paediatrician in order to monitor and observe any regression in her condition. The diagnosis and treatment of this condition must be overseen by a paediatric neurologist. Its treatment and presentation would not be familiar to a paediatrician.

There is no evidence that there is a paediatric neurologist (or a paediatrician) on Nauru.

56    Dr Harbord also noted the significant risk of relapse due to an immune problem called autoimmune encephalitis, which is as high as 24% in one study. Should a relapse occur, the treatment is administration of steroids and intravenous immunoglobulin. Dr Harbord notes that given peripheral IV access was unable to be obtained during the onset of the applicant’s herpes encephalitis on Nauru, it is not an appropriate location to monitor and treat her for a potential relapse and the onset of autoimmune encephalitis.

57    Dr Harbord concluded that the applicant could not obtain treatment that would meet the standard of care while on Nauru for a number of reasons:

Firstly, this patient requires ongoing and regular paediatric review. In Australia, such a patient would initially be seen fortnightly by a paediatrician, progressing to monthly, 2 monthly and finally a 3 to 6 monthly basis. She would be closely monitored by a paediatrician for a 2 to 3 year period and closely monitored again as she reaches school age. A paediatric neurologist would be involved in her care should any neurological issues develop. It would not meet standard of care for this patient to be monitored by a resident medical officer alone.

Secondly, continuity of care for this patient is particularly important. Monitoring of her cognitive condition involves looking for slight and subtle issues of regression relative to her own development. This could not be achieved to a satisfactory standard without regular review by the same paediatrician.

58    In relation to facilities and standard of care available on Nauru, Dr Martin, the former Senior Medical Officer for IHMS, said:

Both the offshore processing Centre on Nauru and the Republic of Nauru Hospital have limited outpatient facilities targeted to children, and have limited resources. These facilities would be grossly inadequate to treat a child presenting with the Applicant’s clinical history with the early intervention that is required in such cases. There is no appropriate way of monitoring the Applicant’s health and development.

59    At the hearing on 29 June the respondents denied that they had any present intention of repatriating the applicant and her mother to Nauru. I am however satisfied that there is an arguable case that this was the respondents’ intention. Ms Kanis states that she is informed by the applicant’s mother that on 28 and 29 June she had conversations to this effect with the applicant’s treating doctor and a security guard at PIH. This is consistent with PIH reports attached to Ms Holben’s affidavit, including a report dated 26 June which states “[s]poke to mother about repatriation once duration of treatment is completed by this week” and a report dated 29 June which states “[t]he full three weeks treatment will be complete in three days and repatriation back to Nauru will ensue thereafter.”

60    I am satisfied there is an arguable case that transferring the applicant back to Nauru, at least at this stage, would mean that she would not receive adequate healthcare. For the purposes of the application I accept Dr Harbord and Dr Martin’s evidence to the effect that a reasonable standard of medical care requires ongoing review by a paediatric neurologist and treatment by a paediatric neurologist is not available at PIH or on Nauru.

Language difficulties and the requirement for the applicant’s father to accompany the applicant

61    The applicant is two years old, any communication regarding her treatment can only be through one or other of her parents. The evidence tends to show that IHMS initially intended that both the applicant’s parents accompany her when she was airlifted from Nauru. However, shortly before the medical evacuation took place the applicant’s father was told by the Department that he could not accompany his daughter.

62    Ms Kanis states that, from early in the applicant’s treatment in PIH, the applicant’s mother said that she could not understand the medical information provided and had not had access to an interpreter. On 16 June Ms Kanis informed Mr Lukic that the applicant’s mother was “incredibly distressed” as she was unable to understand any of the medical information provided, she was without her husband, and she had not been provided with an interpreter. She requested an interpreter and the transfer of the applicant’s father to join them as a matter of urgency. Ms Kanis reiterated that request on 18 June, stating she had obtained further instructions that the applicant’s mother was confused about how to access the interpreter, was relying on a member of the Iranian community who was unfamiliar with medical terms, and had initially refused permission for the applicant to undergo a lumbar puncture because she was overwhelmed by the situation.

63    The respondents’ consistent position is that PIH has provided the necessary interpreting services, and that there were no significant communication problems.

64    I am satisfied on the evidence that there is an arguable case that the inability of the applicant’s mother to speak English, as well as her own significant psychiatric problems, has meant that the applicant’s medical treatment to date has been compromised. The applicant’s mother’s refusal to allow the applicant to undergo a lumbar puncture is a good example of that.

65    There is an arguable case that the provision of adequate healthcare to the applicant requires that the applicant’s father be present to decipher the medical advice provided, provide any necessary instructions and give informed consent. Dr Harbord’s reports explain some of the difficulties likely to be involved in treating a young child who has had herpes encephalitis and may have suffered brain damage as a result, and who may suffer a relapse. The nuanced monitoring and treatment to which he refers will require someone fluent in English to observe the applicant’s condition and inform and provide instructions to the treating paediatric neurologist. If the applicant suffers a relapse she is likely to require urgent hospital treatment which will require that someone who is fluent in English can have the medical situation and treatment options explained, and provide informed consent. For these reasons it is appropriate to order that the applicant’s father also be brought to Australia.

CONCLUSION

66    It is appropriate to order an interlocutory mandatory injunction in accordance with the draft orders proposed by the applicant.

67    I make further orders, by consent, for confidentiality, appointment of the applicant’s father as litigation representative, provision of medical records and discovery of records relating to the respondents’ decision to evacuate the applicant to PNG.

Associate:

Dated:    11 July 2018