FEDERAL COURT OF AUSTRALIA

ELF18 v Minister for Home Affairs [2018] FCA 1368

ORDERS

THE COURT ORDERS THAT:

1.    As soon as reasonably practicable and within 48 hours, the respondents ensure that the applicant is transferred, accompanied by her brother who has been with her on Nauru, to South Coast Private Hospital, New South Wales for assessment and treatment by a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders and treatment as recommended by that psychiatrist and team, and with access to an accredited Farsi-language interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated as recommended.

2.    The respondents provide to the applicant’s solicitors at least two clear business days’ written notice before taking any steps to take the applicant or her brother from Australia.

3.    As soon as reasonably practicable and within three weeks, the respondents provide to the applicant’s solicitors her complete medical records and all documents relating to her medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation:

3.1    Full medical reports;

3.2    All clinical/progress notes in respect of the applicant’s medical conditions;

3.3    Copies of any recording or film or other test records in respect of the applicant’s medical conditions;

3.4    Referral letters;

3.5    Specialist assessments;

3.6    Medical assessment records; and

3.7    Correspondence with the Department, officers, agents or delegates of the Respondents in relation to the applicant’s medical conditions and treatment.

4.    The applicant file and serve an amended statement of claim within 28 days of receipt of the documents referred to in paragraph 4.

5.    The proceeding be listed for a case management hearing on a date to be fixed by agreement between the parties and the Court but not before the filing of a defence on behalf of the respondents.

6.    The respondents pay the applicant’s costs of the appearances on 1 and 3 September 2018, and costs otherwise be reserved.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    On Saturday, 1 September 2018 the applicant commenced a proceeding in this Court, seeking injunctive and declaratory relief against the Minister for Home Affairs and the Commonwealth, as well as damages. She also sought interlocutory relief, and I heard that application on the afternoon of 1 September 2018.

2    Orders were also made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), that 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 ELF18), the name of her family members and the family’s country of origin be prohibited. I shall refer to the applicant as “the applicant” wherever possible, rather than by the pseudonym, including in quotations from the evidence.

3    The applicant sought urgent interlocutory relief, in substance that the respondents be required to take all steps within their power to transfer her as soon as reasonably practicable (and, the applicant contended, within 36 hours) from Nauru to a specific hospital in New South Wales, which had agreed in principle to take her. The nomination of that specific hospital, as counsel for the applicant explained, was intended to make it clear that there was in fact a hospital to which the applicant could be taken. As I explain below, ultimately this turned out not to be the case. On the evidence, it was contended the applicant required inpatient psychiatric treatment by a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders at a tertiary medical centre. Another reason for the urgency was said to be that there was a commercial flight to Brisbane from Nauru on Sunday, 2 September 2018, on which seats were available. After that, on the evidence, there were no seats available on commercial flights until Thursday, 6 September 2018. That was submitted to be too much of a delay given the applicant’s condition.

4    The respondents did not consent to the orders sought. The hearing on 1 September 2018 was conducted on the basis the orders sought were opposed. The position of the respondents was unclear, as I explain below, but it was certainly not one of consent, nor one of agreeing to abide by the orders made by the Court. The turn of events in the afternoon and evening of 1 September 2018 meant the orders sought by the applicant were not made that day and the matter was adjourned until 9.30 am on Monday, 3 September 2018.

5    At that time, the parties had reached an agreed position and orders were sought to facilitate the applicant being brought to Australia. I made the orders sought. These are my reasons for those orders.

The evidence on the interlocutory application

6    The applicant filed, and read, the following affidavit evidence in support of the interlocutory application:

(1)    The affidavit of Ms Arti Chetty, solicitor employed by Russell Kennedy Lawyers, affirmed 1 September 2018, exhibiting the applicant’s medical records, but with a gap of more than a year where there are no medical records available to the applicant’s representatives;

(2)    The affidavit of Dr Nicholas Martin, a general practitioner who worked as a Senior Medical Officer for International Health and Medical Services, affirmed 31 August 2018; and

(3)    Expert reports from two people:

(a)    A report of Dr Bonita Lloyd, Psychiatrist, dated 26 August 2018 (exhibited to both affidavits and appearing in “NPM-1” to the affidavit of Dr Martin); and

(b)    A report from Dr Patricia Schmid, Psychiatrist from Médicins Sans Frontières, dated 23 August 2018 (exhibited to both affidavits and appearing in “NPM-1” to the affidavit of Dr Martin).

7    No objection was positively taken to that evidence by the respondents, but counsel for the respondents stated he had not read it all, so it was difficult to object. Counsel appeared to have been retained at short notice and his position cannot be criticised. However, the respondents themselves, through their legal representatives, had known about the applicant’s situation for a longer period of time. My impression at the 1 September 2018 hearing was that what had been conveyed to them had not been given priority.

Communications with the respondents

8    Ms Chetty’s evidence suggests the following chronology.

9    Since at least 24 August 2018, the applicant’s legal representatives have been trying to locate her missing medical records. Ms Chetty emailed IHMS and received the following response:

The medical records team in Sydney do not service the clients at sites, this is done via the IHMS clinic. I have forwarded your email to them. Please can you advise [the applicant] to attend the clinic where she received her records to discuss?

Please note the Settlement Clinic records are usually in a different section to the electronic notes as these are paper based and scanned in – this may be the reason she may have trouble finding them but they should be within the copy she received. Furthermore we can only provide the records we hold – the Republic of Nauru does not usually provide copies of their records to us. [The applicant] will need to requests those records directly from the hospital.

Kind regards,

Clinical Reporting Team

International Health and Medical Services

recordrequests@ihms.com.au

www.ihms.com.au

10    Ms Chetty deposed that she had not received a response from the IHMS clinic.

11    Ms Chetty sent a copy of the reports of Dr Schmid and Dr Lloyd to the respondents on Tuesday, 28 August 2018 at 2.49 pm. A letter from Ms Chetty, setting out the material factual background and the substance of the two reports, was also sent at this time. The letter requested the applicant be immediately evacuated from Nauru. This was sent to the respondents’ legal representatives at the Australian Government Solicitor. It invited the respondents’ legal representatives to contact Ms Chetty, and asked for confirmation by 2 pm on Thursday, 30 August 2018 that the applicant would be transferred from Nauru. Ms Chetty stated that if no arrangements were made, she had instructions to commence proceedings seeking an urgent injunction. She referred to four recent cases where such orders had been granted.

12    Ms Chetty deposed:

I confirm as at 12.37 pm today, 1 September 2018, [the applicant] remains on Nauru. I have not received an undertaking to evacuate [the applicant] from Nauru nor any further information from or on behalf of the First or Second Respondent.

13    Thus, on the evidence, there appears to have been no response at all from the respondents, through their legal representatives, from Tuesday, 28 August 2018 through to Saturday, 1 September 2018, despite what the reports of Dr Schmid and Dr Lloyd said, and despite Ms Chetty’s comprehensive correspondence.

14    The situation did not improve on the matter being called on for hearing at 5 pm on Saturday, 1 September 2018. The respondents had therefore had the best part of all of Saturday as well as Tuesday, Wednesday, Thursday and Friday. The refrain during the hours of hearing on 1 September 2018 from the respondents’ counsel was that he had no instructions on several matters, despite being given adjournments to secure them. He did not even have instructions on whether the respondents objected to the evidence on which the applicant relied, including the two medical reports the respondents had been given on Tuesday, 28 August 2018.

15    I do not doubt the correctness of counsel’s statement that he, personally, did not have instructions. What is of concern to the Court is the behaviour of those responsible for giving instructions to counsel and solicitors appearing in the Court in these matters. What compounded the Court’s concern was that, later in the evening of the hearing on 1 September 2018, it became apparent counsel and his instructor were receiving instructions – directly or indirectly – from Nauru, and those instructions appeared to be coming through promptly. The subject matter of those instructions related to where the applicant was, and what steps were being taken to invite her to go to the Regional Processing Centre compound, apparently in a belated attempt to ensure she was safe and could be monitored. In other words, some instructions were being given and received, in a short time frame, in contrast with the positon about getting instructions on the applicant’s evidence and the orders sought. One inference is that what was being said about the applicant’s plight by her representatives was not taken seriously until the matter was actually before the Court.

16    There have now been at least seventeen of these kinds of applications in this Court. Often they are brought urgently because of the circumstances of the individuals concerned, and the need to move quickly once those circumstances become fully apparent to those who take on the responsibility of acting for these individuals, and those experts who agree to give opinions about what treatment is needed.

17    A significant amount of the relevant information is in the possession and control of the respondents, and the agencies or corporations they have contracted to work in Nauru and Papua New Guinea; agencies that are answerable to the Commonwealth. It is plain that the legal representatives of applicant may have difficultly securing accurate information for the purposes of these applications. Indeed, it is apparent they often have difficulty even being able to communicate with their clients.

18    There is no longer any excuse for the respondents, in particular at departmental and agency level, not having systems in place to respond quickly, effectively and appropriately to these applications, and to ensure that their legal representatives appearing in Court can secure the instructions they require. It is completely foreseeable, indeed one might say inevitable, that the Court will have questions that need to be answered and which will arise during the hearing.

19    The Court has a system in place to respond quickly to requests for urgent hearings, out of usual court hours and as necessary. It can reasonably expect that the Commonwealth and the relevant departments and agencies will do the same, in terms of ensuring their legal representatives can secure the instructions they require.

The applicant’s circumstances, and the evidence about her health

20    The applicant fled her country of nationality, and arrived in Australia at some time prior to September 2013. In September 2013, she was taken to Nauru under s 198AD of the Migration Act 1958 (Cth). In early November 2014, she was recognised as a refugee by the Government of Nauru and she has remained on Nauru ever since, pursuant to a visa granted to her by the Nauruan Government. At the time of the interlocutory application, she was living in the Nauruan community.

21    Dr Schmid saw the applicant for five consultations in July and August 2018. The Court was informed that Dr Schmid generated her report herself having seen the applicant. Médecins Sans Frontières then contacted the applicant’s current legal representatives. The applicant’s legal representatives then sought Dr Lloyd’s opinion.

22    In her report, Dr Schmid records the applicant’s account of a violent incident on Nauru approximately two years ago, the detailed narrative of which need not be reproduced. The applicant was hospitalised for a considerable period after this incident. The applicant’s medical records for this period had not been made available to her legal representatives at the time of the hearing on 1 September 2018, despite requests. For some reason only her medical records from prior to late 2014, and then from early 2017, were made available to the applicant’s legal representatives. The rest, the Court was informed at 7 pm on 1 September 2018, were still being located and compiled. The patchiness and delays associated with getting the applicant’s medical records hardly instils confidence in the management of the medical treatment of people such as the applicant.

23    Dr Schmid’s report expresses a series of conclusions about the continuing and serious effects of the violent incident on the applicant, including the effects arising from having to remain in Nauru. It is not appropriate, for confidentiality reasons, to reproduce her detailed conclusions in these reasons, but they are compelling.

24    Dr Lloyd’s report is dated 26 August 2018. It was, Ms Chetty’s evidence reveals, sent to the respondents through their legal representatives at the Australian Government Solicitor on the same day. Dr Lloyd’s qualifications and experience are significant, and she has experience treating Australian Defence Force veterans for trauma-related disorders. Dr Lloyd noted the absence of medical records for the applicant from October 2014 to March 2017. Dr Lloyd conducted a review with the applicant via phone with an interpreter, and then also observed the applicant through a video call.

25    Dr Lloyd concludes (with redactions consistent with the suppression orders that have been made):

9.3    If the answer to 9.2 is yes, please consider the following:

9.3.1    What medical evaluation/treatment does [the applicant] require?

[The applicant] requires containment in a safe environment in order to appropriately manage her significant risk of harm to self, and to review the clinical picture once she is no longer exposed to ongoing trauma [which Dr Lloyd then specifies].

9.3.2    What type of facility or setting is required for the evaluation/treatment?

As per the National Institute for Health and Care Excellence (NICE) guidelines, for PTSD sufferers who are so severely depressed that symptoms (such as extreme lack of energy and concentration, inactivity, or high suicide risk) are likely to impair psychological treatment of PTSD, the depression (and self-harm risk) should be addressed prior to the commencement of PTSD treatment.

Given the extent of [the applicant’s] suicidality and the severity of her post-traumatic and depressive symptoms, she will initially require evaluation and treatment in an inpatient hospital setting. She may also require monitoring of her oral intake, physical health and serum electrolytes (depending on the degree of any malnutrition) and safe management of the possible risk of refeeding syndrome (which, if not adequately managed, could result in abnormal heart rhythms, seizures or death).

Once her depression and risk of self-harm have been adequately stabilised, her PTSD can begin to be addressed. This will likely occur in the outpatient setting, though the choice of setting ought to be governed by her mental state at that time.

[Dr Lloyd then addressed the specific adverse consequences of the applicant remaining on Nauru]

9.3.3    What qualifications and experience would a medical practitioner require in order to perform the required medical evaluation/treatment?

[The applicant] requires evaluation and treatment by a psychiatrist and team of health practitioners with experience in biological, psychological and sociocultural aspects of the treatment of depression and trauma-related disorders, with general medical support for any sequelae of malnutrition as outlined above.

As such, she would be best initially managed in an inpatient psychiatric unit with general hospital support, and then managed on an outpatient basis by professionals with experience treating post-traumatic stress disorder. [The applicant’s] care would also require cultural and linguistic support, and previous experience in treating refugees/asylum seekers would be preferable.

9.3.4    How quickly is the evaluation/treatment required?

Given the significant risk of suicide, evaluation and treatment is required immediately.

9.3.5    What are the possible consequences (if any) for [the applicant’s] health if she does not receive the required evaluation/treatment in a timely fashion?

The possible consequences if [the applicant] does not receive the required evaluation and treatment in a timely fashion include death (suicide) or other self-harm, further worsening of [the applicant’s] physical and mental health, medical sequelae of malnutrition given her poor oral intake, and physical complications associated with protracted exposure to stress (such as elevated blood pressure, high cholesterol, obesity and cardiovascular disease, as outlined by McFarlane in 2010). Furthermore, delays in adequate treatment can also contribute towards future treatment resistance.

9.3.6    Can the required evaluation/treatment be provided in Australia?

The required evaluation and treatment can be provided in Australia.

9.3.7    How quickly could [the applicant] receive the required evaluation/treatment if she were brought to Australia?

An inpatient psychiatric admission could be arranged immediately in most major centres of Australia or, in the case of bed shortage, [the applicant’s] care could commence immediately via Emergency Department pathways while awaiting an inpatient psychiatry bed.

9.3.8    Where else can the required evaluation/treatment be provided?

It seems apparent from the reports and [the applicant’s] interview that the regular mental health system on Nauru is not currently able to offer the input and safe environment required in order to provide appropriate care for her constellation of psychiatric issues, particularly in the setting of ongoing (actual or threatened) exposure to trauma. Her care needs could be adequately met in Australia. I am not sufficiently familiar with the services available in other countries to comment further.

26    Dr Lloyd’s opinion, expressed in her report, is that the applicant requires this treatment “immediately”, that it is available in Australia and that an inpatient admission could be arranged immediately, in most major centres. She also made it clear the applicant should be accompanied by her brother, to ameliorate the social isolation she will feel, to help her feel safer, and to prevent deterioration in her mental condition as a result of anxiety about her brother’s safety.

27    The contents of Dr Schmid’s report, and Dr Lloyd’s report, are consistent with the portions of the applicant’s IHMS records that are in evidence. The applicant’s IHMS medical records reveal a history in her country of nationality which IHMS officers recognise in those records as likely to be contributing to her poor psychiatric health in Nauru. It is clear that, from around the time of her transfer to Nauru, the applicant’s mental health issues have been apparent to those responsible for her detention and care.

28    The IHMS records also reveal a number of incidents, apparently accepted, which predated the violent incident two years ago but were not of a materially different character. The IHMS records, since 2015, reveal a long standing recognition of the applicant’s serious mental health issues, and also painful and debilitating physical issues which apparently have not been promptly attended to on Nauru, including reports of changes in behaviour which give rise to concern, such as becoming isolated and non-communicative, with suicidal ideation. The latter report was as far back as May 2016. For example:

Client is not engaging.

M/H Team have visited x 3 to her home. On each occasion she has remained uncommunicative. Lying in bed, making no eye contact, turning face away. Reports from her flat-mates husband is that she is eating and drinking very little. Her brother visits but she doesn’t talk to him either.

29    Under the heading “Safety Concerns”, the following entry appears in the IHMS records:

At risk of self harm/ suicide with decrease in functionality. Previous hx of depression, poor coping skills chronic nuerovegatative symptoms. Intolerance. Non acceptance of treatment.

30    This latter entry is dated June 2016, more than two years ago.

31    A further entry from a psychiatrist, also in 2016, which recites the applicant’s ongoing physical and mental health difficulties concludes with the following:

Impression is of prolonged stress on trauma background with secondary depression and panic. …. Presents medium term risk of suicide related to long period of trauma and on-going stress of current life circumstances. Ambivalent about therapy ….. If we had a good respite option she would benefit from this as she is exhausted and a period of respite would help her recover her natural strengths - but none such available.

32    The IHMS clinical record summary is, in the 2018 entries in particular, littered with appointments the applicant did not attend or that were cancelled, most of those mental health consultations. This is consistent with what is reported in the records about her feelings of hopelessness, her isolation and her lack of communication. I note the records invariably describe the applicant as polite and cooperative when she does attend consultations. The applicant’s significant weight loss as noted by Dr Lloyd is also confirmed in the IHMS records.

33    Overall, the picture presented by both the expert evidence and the IHMS records is one of extreme debilitation, and of significant ongoing risk of further harm to the applicant.

The approach to the interlocutory application

34    I have set out the approach the Court should take to an interlocutory application such as this in EHW18 v Minister for Home Affairs [2018] FCA 1350 at [5]-[10]. The Court must be satisfied the applicant can show a sufficient likelihood of success to justify the grant of an injunction, taking account of the nature of the right being asserted and the practical consequences that are likely to flow if an injunction were granted. The phrase “sufficient likelihood” does not mean an applicant must show it is more probable than not that it will succeed at trial.

35    The Court must also assess where the balance of convenience lies and in doing so consider whether the injury or damage identified by the applicant for interlocutory relief outweighs, or is outweighed by, the damage or injury the respondent would suffer if injunctive relief is granted. All the relevant circumstances must be weighed in addressing both matters.

The applicant’s claims

36    Broadly speaking, the applicant alleges that the respondents owe her a duty of care to exercise their statutory powers (as vested in the Minister) and non-statutory executive power to take all reasonable steps:

    to procure for the applicant a reasonable and adequate standard of medical treatment in an appropriate environment; and

    to avoid or minimise the risk of the applicant suffering the harm which it is alleged she has suffered and will suffer.

37    The harm is alleged to be of two kinds. First, harm relating to her ongoing fears arising from the violent incident two years ago and consequential incidents. Second, the psychiatric illnesses she suffers, to which I have referred above, compounded by matters such as her severe weight loss.

38    The duty of care is said to arise from circumstances including the control exercised by the respondents over, and their assumption of responsibility for, her medical treatment and welfare. It is alleged that the applicant has no means, or ability independently to access medical treatment. The applicant contends the respondents know or ought to know that failure to procure adequate and reasonable medical treatment for her may cause her harm, including the real risk of self-harm and suicide. The applicant alleges the respondents have breached their duty of care to her by failing to take any reasonable steps to seek to ensure that she receives reasonable and adequate medical care, in circumstances where her need for such care is pressing, and ongoing.

39    It is alleged that in order to avoid continuing or further breaches of the respondents’ duty of care, the applicant must have urgent access to an inpatient psychiatric hospital as well as access to specialist medical care from a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders, and (I infer) must be removed from Nauru so as to avoid the alleged threats to her personal safety.

40    There is no specific allegation in the statement of claim about how the duty of care in relation to the applicant’s personal safety is framed, nor what the breach is said to be. I asked counsel for the applicant about this at the hearing. Counsel said the focus in the statement of claim is on the applicant’s medical needs, which integrally involve and arise out of the incident two years ago, and incidents since. The evidence about the risks to the applicant’s personal safety was specifically directed, on this application, to why it is said the only real option is for her to be removed from Nauru, especially considered with Dr Lloyd’s opinion that, given that situation, she cannot be properly treated on Nauru.

41    I accept, in the urgent circumstances in which this matter was brought on, it is appropriate to treat the submissions by counsel as intended to form part of the applicant’s case, and that the duty of care, and any breach, may ultimately be re-pleaded to include failures to take reasonable steps to ensure the applicant’s safety on Nauru. The orders made on 3 September 2018 provided for an amended statement of claim to be filed, and for the respondents to file a defence before any further case management of the proceeding.

42    The applicant’s brother is, on the evidence, very close to her. It is submitted her brother should accompany her to Australia.

The respondents’ position

43    I noted, and gave significant weight to, the evidence that Dr Lloyd and Dr Schmid’s opinions were sent to the respondents’ legal representatives on Tuesday, 28 August 2018. The respondents have been on notice about the applicant’s predicament, and also the likelihood of this proceeding, since at least then. One might have thought some closer attention would have been paid to her predicament long before Saturday evening, when the respondents belatedly sent someone on Nauru to invite the applicant to come back to the Regional Processing Centre compound. Although this interlocutory application was brought on urgently, I was satisfied the Minister, in particular, through his department, and the agencies and contactors such as the Australian Border Force and IHMS, should have been aware that steps needed to be taken to protect the applicant both at the level of her personal safety and in relation to her considerable health needs.

44    At around 6.50 pm the respondents informed the Court that, as of a few minutes earlier, the applicant was being taken to the Regional Processing Centre, and had agreed to go there. At this stage it was approximately 8.50 pm in Nauru. It appears that someone went around to the applicant’s house, in the dark, and against a background where she had reason to be fearful for her personal safety, and somehow contacted her. Whether or not this caused her further distress is a matter about which the Court was not given any information.

45    In that context, counsel for the respondents then submitted to the Court that the applicant would be monitored and treated and this alleviated the immediate risk to the applicant’s safety which appeared from the evidence to exist.

46    On questioning about the detail of the facilities and support available at the Regional Processing Centre (RPC1), counsel said that it was a “supported accommodation area”, that the applicant would have psychiatric support and would be monitored. Beyond this, he said that, again, he presently had no instructions. He said he had no instructions why the applicant was not invited to move to the Regional Processing Centre on Tuesday, 28 August 2018 when the respondents were given the two reports of Dr Schmid and Dr Lloyd. He had no instructions why she was not invited to move at any time thereafter, until the Court hearing had commenced.

47    Counsel for the respondents submitted in these circumstances the orders sought requiring the respondents to transfer the applicant from Nauru for treatment at a location in Australia should not be made and that the respondents were not prepared to agree to any such orders. Counsel submitted the application should be adjourned.

48    It was at this point that the affidavit evidence of Dr Martin became relevant to the matters under consideration.

49    Dr Martin is a general practitioner who worked as a Senior Medical Officer for International Health and Medical Services between November 2016 and August 2017. He deposed, and I was prepared to accept for the purposes of the interlocutory application, that during this time, he gained a detailed understanding of the medical facilities available to refugees and asylum seekers on Nauru. His evidence, relevantly to the development the respondents had just announced, was:

10.    From my knowledge of the facilities and processes on Nauru, and the information provided to me about the Applicant, it is my professional view that the Applicant could not receive appropriate ongoing treatment on Nauru.

11.    There are no clinicians who are specialised in [the kind of treatment the applicant requires after the incident two years ago]. The Applicant would not have access to continuous care and would not be able to form a relationship with her psychiatrist or mental health team as they would all be on rotation.

12.    The Applicant would be placed in Regional Processing Centre 1 (RPC1) and placed on suicide watch. RPC1 works as a holding pen rather than as a treating facility. In Australia the equivalent would be placing the Applicant in a police cell rather than in a treating facility.

13.    There is no tertiary level facility on Nauru. In my opinion the level of care provided at the RONH is well below that of an Australian regional hospital. Staff at the RONH are often qualified in jurisdictions where the quality of training is poor and well below Australian standards. IHMS can provide care equivalent to reasonable general practice surgery, dispensary and routine health clinic.

14.    No regular specialist care is available at IHMS unless a TeleHealth or Skype videoconference is arranged. The level of care that can be provided through these platforms is in no way comparable to an in person examination on consultation. Further, arranging such consultation is administratively difficult. This difficulty is amplified where the patient is a refugee and not an asylum seeker. In my experience this would require approval from both Australian Border Force as well as the RONH.

15.    Similarly, limited in-person interpreting services are available on Nauru. Many medical consultations are conducted via telephone interpreting services. This is an inadequate method of conducting a medical examination because of the nuance and detail required for effective doctor-patient interactions.

16.    The clinical standards at the RONH are not reviewed or subject to outside independent scrutiny. There is no morbidity or mortality meeting. There is no pathologist and post mortems do not occur.

17.    The RONH is of a similar standard to public hospitals in other developing Pacific nations. It does not have the capacity to manage the complex health needs of the refugee population.

…

22.    There is no formal process for determining the management of medical care of refugees by IHMS services. Access can be sporadic and complicated. IHMS services are generally directed towards asylum seekers detained in the Regional Processing Centre. It is my understanding that officially accepted refugees can only access the IHMS if they are resident within the actual compound itself. Otherwise refugees should be seen at the Settlement Clinic, co-located with the RONH.

23.    Providing ongoing long-term monitoring and care in this setting is exceedingly difficult. This is particularly so as there is no care sharing relationship between the IHMS and the RONH. Accordingly, the ongoing treatment of an accepted refugee is more likely to fall between the cracks.

24.    In my experience communication and referrals between the two health care providers is not good and it is very difficult for patients to receive an appropriate standard of care.

25.    The refugee population on Nauru has to compete with the local population for the specialist care available on Nauru on an ad hoc basis. Often refugees are not seen as specialists do not have the capacity to see everyone.

50    Having read the reports of Dr Schmid and Dr Lloyd, Dr Martin agreed the applicant could not be adequately cared for or treated on Nauru. Dr Martin also gave evidence about the system of medical transfers and evacuations which existed on Nauru when he was there which, if correct, would be of great concern.

51    The Court asked counsel for the respondents whether the evidence of Dr Martin was contested or not. Again, counsel for the respondents informed the Court he was not in a position to answer that question.

52    Ultimately, counsel for the respondents submitted it was necessary for the Court to have the missing IHMS medical records before making orders of the kind sought by the applicant. However, when questioned, he again had no instructions about when they would be available.

53    As I noted that evening, the respondents’ response to this application, and their failure to take any proactive steps earlier in the week, placed the Court in a difficult and invidious position. On the one hand, the evidence was overwhelming that the applicant’s situation was very serious and there were real risks to her well-being, and perhaps to her life. Once suicidal ideation becomes a reality, the only responsible reaction is the one recommended by experts such as Dr Schmid and Dr Lloyd. Yet the respondents insisted that the Court should have the complete medical records, that they may wish to object to some of the evidence being relied upon and that in any event by their recent conduct they had alleviated the immediate risk to the applicant.

54    It was plain that asking the applicant to move back to the Regional Processing Centre, described by Dr Martin as being like a police cell in terms of the level of support and treatment available, was nothing more than a stop-gap measure. Whether or not it could re-traumatise the applicant was not something there was an opportunity to explore by way of evidence. It had happened. It had happened without there being any indication the respondents had given the applicant’s legal representatives prior notice someone was being sent to see the applicant, despite the fact the applicant’s legal representatives were present in Court while these steps were being taken on Nauru. It was done without giving the applicant’s legal representatives, or even someone like Dr Lloyd, a chance to speak to the applicant.

55    Reluctantly, in order to afford fairness to the respondents in the face of their submissions, I adjourned the matter to 9.30 am on Monday, 3 September 2018. I made it clear that the time had come for responsibility to be taken for the applicant’s welfare, and made a direction that the Court be informed of the individuals who would be responsible for her safety and welfare while she was at the Regional Processing Centre. The following direction was given:

1.    On or before midnight on 1 September 2018, the respondents are to provide by email communication to the chambers of Justice Mortimer, copied to the applicant’s solicitors, a list of every person in the team who is or will be responsible for the applicant’s care between when she entered the Regional Processing Centre on 1 September 2018 and 9.30 am on 3 September 2018.

2.    If there are any changes to the team who is responsible for the applicant’s care between the time at which direction 1 is complied with and 9.30 am on 3 September 2018, that information is to be put before the Court when the Court resumes on 3 September 2018.

56    I also directed the respondents to file and serve any evidence on which they proposed to rely on or before 8.30 am on 3 September 2018.

The hearing on Monday 3 September 2018

57    At the hearing on 3 September 2018, the Court was informed the parties had agreed on orders providing for the evacuation of the applicant from Nauru, at the latest within 48 hours. The applicant was to be evacuated to the New South Wales hospital which had agreed to take her. Later on 3 September 2018, at a further hearing, the Court was informed that hospital had refused to take her, because of her physical condition – her Body Mass Index was too low, and the hospital considered she needed a greater level of medical care than it could offer. That is independent corroboration of the dire circumstances of the applicant, and the apparent neglect of her welfare to that point.

58    I was firmly satisfied the orders sought should be made, indeed that it was imperative they be made.

59    The key factors which led me to that conclusion are likely to be apparent from the matters I have set out above. In summary:

(a)    I attached considerable weight to the reports of Dr Schmid and Dr Lloyd.

(b)    I attached weight to the contents of the IHMS medical records, which appeared to show the applicant had longstanding medical and psychiatric issues and they had not improved, but instead had worsened. Some of those records themselves appeared to indicate the applicant could not receive, and was not receiving, appropriate and adequate care on Nauru. They also indicated that her day to day living circumstances were very difficult to tolerate (and indeed indicated she was not capable of tolerating them, despite her efforts) and the risks to her personal safety should be taken seriously.

(c)    For the purposes of the interlocutory application, I was satisfied she had been the victim of an incident two years ago that had severely traumatised her. At an interlocutory hearing, there was no reason on the evidence not to accept what Dr Lloyd set out in her report about this matter.

(d)    Dr Lloyd’s report made clear the closeness of the relationship between the applicant and her brother and the need for him to accompany her.

(e)    I placed some weight on Dr Martin’s evidence, given there was nothing to suggest the situation on Nauru had changed since he left. The non-production of a large part of the applicant’s medical records tended to corroborate his evidence.

60    Accordingly, for the purposes of the interlocutory application I found the applicant’s claims that the respondents owe her a duty of care, and that the duty of care had been breached, and was continuing to be breached, to have a sufficient likelihood of success to warrant the grant of relief to avoid further harm to the applicant. I accepted, for the purposes of interlocutory relief, the applicant’s claim that compliance by the respondents with their duty of care, in terms of its content, necessarily involved removing the applicant from Nauru and taking her to a place where all of her medical and psychiatric health issues can be adequately addressed, in a sustainable and appropriate way. This included the use of interpreters so that first, the applicant’s treatment can be effective, especially her psychiatric treatment, and secondly so the applicant can properly understand the proposed treatment and give informed consent to it. As I noted in EHW18, individuals such as the applicant are no less entitled to these aspects of medical care than any other person who receives medical or psychiatric treatment, in circumstances where a duty of care is owed to that person.

61    As to the balance of convenience, I found the evidence comfortably established that there was a real likelihood of further harm occurring, and I was also prepared to find that the nature of the harm included a serious risk that the applicant may take her own life, or attempt to take her own life, and if she attempted to do so and did not succeed, there would obviously be further serious consequences for her state of health.

62    Accordingly, the principal order the Court made was:

As soon as reasonably practicable and within 48 hours, the respondents ensure that the applicant is transferred, accompanied by her brother who has been with her on Nauru, to South Coast Private Hospital, New South Wales for assessment and treatment by a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders and treatment as recommended by that psychiatrist and team, and with access to an accredited Farsi-language interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated as recommended.

Costs

63    The applicant sought costs, and the respondents, properly, did not resist an order that they pay the applicant’s costs of the hearings on 1 and 3 September 2018. The hearings were necessary only because the respondents had not taken any prompt action on being given the reports of Dr Schmid and Dr Lloyd last Tuesday. It was apparent only one course of action was responsible in light of those reports. The applicant could, and should, have been in Australia last week. Instead, the obvious inference is that the respondents only took steps to address the applicant’s welfare once there was a proceeding in progress before this Court, which could be said to confirm the strength of the allegations made by the applicant of a breach of duty of care.

Subsequent events

64    There was, ultimately, no compliance with the Court’s principal order. On the evidence, the respondents could not complete the arrangements they had made to evacuate the applicant by air ambulance from Nauru. The reason for this was, on the evidence, a decision by the Government of Nauru, which I explain below.

65    On being notified that a problem had arisen, the Court reconvened urgently on Wednesday, 5 September 2018, first at lunchtime and then again at 5.30 pm. At 5.30 pm further affidavit evidence was read and relied upon by both the applicant and the respondents. The applicant read and relied upon affidavits of Ms Fiona Owens, a Social Worker and the former Manager of the Child and Adolescence Mental Health Services division of IHMS on Nauru, and a further affidavit of Ms Chetty. The respondents read and relied upon an affidavit of Ms Vanessa Holben, Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force.

66    One of the matters Ms Holben deals with in her affidavit is a Nauruan committee, the Overseas Medical Referral Committee. Ms Holben describes that committee, its functions and its relationship to the Commonwealth’s power to bring “transitory persons” into Australia for a temporary purpose under s 198B of the Migration Act, as follows:

The Republic of Nauru (RoN) Hospital participates in the Nauru Ministry of Health’s Overseas Medical Referral (OMR) process, which allows referral of members of the Nauruan community, including refugees, for overseas medical treatment that is not available at the RoN Hospital. I can confirm that the OMR process works through a committee that meets weekly and ad hoc, as required. If a medical professional determines that a refugee requires treatment that is not available on Nauru, they will prepare a case report and present this to the OMR Committee for consideration. The OMR Committee will then decide whether or not to approve the OMR.

An approved OMR, in relation to a refugee, assists the Department to facilitate liaison between Departmental officers and authorities within Nauru, such as the RoN Hospital and other third parties. It also generates a series of activities, including consideration of what assistance the Department can provide, and the making of logistical arrangements for the person to facilitate transfer of the refugee, including to Australia for medical treatment in accordance with paragraph 4.2.4 of the Administrative Arrangements.

In making a decision as to what assistance the Department may provide to the Nauru Government to provide treatment to a person who is the subject of an OMR, including whether to approve the person’s transfer to Australia or assist with their transfer to another country, the Transitory Persons Committee (TPC) is convened. Ordinarily, I will make a decision whether to approve assistance or transfer for a refugee following discussion with, and receipt of a recommendation from, the TPC.

In coming to a decision, I will consider information such as the relevant person’s health information, immigration status on Nauru, behavioural history, family situation and whether any necessary health care can be provided in Nauru.

67    Clearly the process Ms Holben describes will not necessarily be applicable to emergency situations.

68    The Court’s enquiries about the status of the OMR committee under Nauruan law, and how it was apparently able to make decisions preventing a person leaving the country for medical treatment, were not able to be answered.

69    Nevertheless, the narrative, insofar as this process was applied to the applicant, appears to have been as follows, based on the affidavit evidence. The respondents set out to arrange the applicant’s evacuation by air ambulance, in order to comply with the Court’s orders, and the 48 hour time limit. Ms Holben deposed:

In this case, given the court orders (made by consent) and the urgency of the matter, the Department of Home Affairs on 3 September 2018 sought urgent approval for the applicant’s transfer directly from the Nauru Secretary for Multicultural Affairs, Ms Barina Waqa despite the OMR committee not having been able to consider the matter prior to the court orders being made.

Ms Waqa has so far declined to grant approval for the medical transfer because she was not satisfied on the medical evidence that the applicant requires an emergency evacuation and could not be treated on Nauru. She therefore insisted on the applicant’s case to go through the OMR process set out in paragraphs 12 to 14 from Nauru. She also requested a review and report from the applicant’s treating psychiatrist. As a result, the Government of Nauru refused to grant permission for the air ambulance to land in Nauru. The ambulance therefore had to be cancelled upon which the Department will have to pay a cancellation fee.

70    The Court was informed the cancellation fee was $100,000. As Ms Holben noted in her evidence, and as one might expect with a sovereign state, the Government of Nauru had power to approve, or refuse approval, for a plane such as an air ambulance to make a non-scheduled landing in its territory. Ms Holben deposed, and there is no reason to doubt, that a “non-scheduled landing” without approval from the Government of Nauru would be unlawful. She also deposed to the adverse effect any attempt to make such a landing without Nauruan approval was likely to have on the Australia-Nauru “working relationship” in relation to regional processing.

71    Plainly, the Commonwealth would not press ahead with the air ambulance transfer in those circumstances, and could not properly be expected to do so.

72    Thus, the position appears to be that the Government of Nauru took a decision which resulted in the Commonwealth and the Minister being in breach of orders made by this Court. Whether or not the Government of Nauru was aware of this Court’s orders when it made that decision was not a matter addressed in the evidence.

73    Ms Holben deposed that, being the holder of a temporary visa in Nauru, the applicant had a right to depart and re-enter Nauru. She deposed that, therefore, the Government of Nauru, through Ms Waqa “would not object, and she has no legal basis to, to the applicant and her brother boarding a commercial flight”. Ms Holben deposed that accordingly the respondents then commenced to arrange for the applicant to leave Nauru with her brother in that way.

74    Real questions, on the evidence, seemed to arise about the applicant’s fitness for travel in that way, and whether a commercial airline would agree to take her. However, Ms Holben deposed (on information from at least two Australian Border Force officers – Kylie Black, Inspector, Offshore Health Operations Section, Australian Border Force, and Lauren Richardson, Australian Border Force Nauru Programme Coordinator) that the IHMS psychiatrist in Nauru responsible for the recent care and supervision of the applicant, Dr Andrew Mohanraj, had given “a verbal approval that the applicant is fit to fly on a commercial flight without escort, but with her brother”. Ms Holben deposed that the Department:

has arranged for the applicant and her brother to travel to Australia on a commercial flight on this Friday 5 September 2018 at 6.30am from Nauru to Brisbane.

75    It was then going to be necessary for the applicant to be transferred from Brisbane to the two hospitals in New South Wales which had agreed to accept her. The respondents submitted the Court should allow 24 hours for that travel within Australia. Although the applicant submitted a shorter time should be specified, I was satisfied in the circumstances that it was appropriate to allow 24 hours, in case there were unavoidable delays. It was not appropriate, in my opinion, to put the respondents at risk of being non-compliant with Court orders of this kind for a second time. The Court’s main concern, in the circumstances, was to ensure the applicant and her brother were able to leave Nauru. Once in Australia, the Court was confident the respondents would attend to securing the necessary care for the applicant in an appropriate way.

76    Accordingly, the order made on 3 September 2018, which I have extracted above, was vacated, and the following orders were made:

1.    Order 1 of the orders made on 3 September 2018 is vacated.

2.    As soon as reasonably practicable and within 60 hours, the respondents ensure that the applicant is transferred, accompanied by her brother who has been on Nauru with her, to the Shellharbour Hospital, New South Wales (NSW) for assessment of her physical health and treatment in accordance with that assessment.

3.    If and when recommended by the Shellharbour Hospital following assessment of the applicant’s physical health and in consultation with, and approval by, the South Coast Private Hospital, NSW the respondents ensure that the applicant is transferred to the South Coast Private Hospital for assessment and treatment by a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders and treatment as recommended by that psychiatrist and team.

4.     The respondents ensure that when assessing and treating the applicant in accordance orders 2 and 3 above, as required, the hospitals provide the applicant with access to an accredited Farsi-language interpreter, and where appropriate and necessary, access to a face-to-face interpreter.

77    The parties were also ordered to provide a joint report to the Court in respect of compliance with those orders by 9 am on 10 September 2018, and the respondents were requested to provide an update by 3 pm on 7 September 2018. On the afternoon of 7 September 2018, the respondents reported to the Court that the applicant and her brother had travelled by the scheduled commercial flight to Australia, and were being moved to the hospital in New South Wales which had agreed to take the applicant.

Associate:

Dated:    7 September 2018