Sarah Bruce
On May 5, the Federal Court handed down a landmark decision in a case brought by two Baxter detainees, known as "M" and "S", against the federal government. Judge Paul Finn found that the commonwealth had a duty to ensure that a level of medical care was made available to M and S that was reasonably designed to meet their health-care needs including psychiatric care.
M and S have been diagnosed with severe depression. Both were at serious risk of self-harm and suicide during their detention in Baxter. By the time the decision was handed down, both M and S had been transferred out of Baxter into Glenside, a mental health facility in Adelaide.
Finn found that immigration department staff at Baxter ignored outside opinions on the health and treatment of M and S, particularly the opinions of doctors Malcolm Richards, Michael Dudley and Jon Jureidini, "that the conditions at Baxter were themselves a contributing cause of the mental illness of S and M; that Baxter was unable to provide the level of care now required by S and M given their conditions; and that Baxter was an inappropriate treatment environment for them".
Finn described these opinions as "reasonable", saying they should have indicated to the department that independent advice be obtained as to the treatment plans for M and S. By not doing so, it "continued to commit itself to treatment plans that may have been exacerbating, or else inadequately or inappropriately treating the very conditions" of the detainees.
Finn criticised the department's arrangements for the provision of mental health services in Baxter. These arrangements are set up in such a way that they allow the department to pass the buck on providing adequate health care to detainees.
The government has a contract with Global Solutions Ltd (GSL) to provide "detention services", i.e., to run the operations of Baxter. This includes the provision of health, general and psychiatric services.
GSL contracts out the provision of these services to other companies — Professional Support Services provides psychological care services and International Medical Health Services provides general medical services. IHMS then contracts with others to provide medical services at Baxter, including a Bathurst-based psychiatrist Dr Andrew Frukacz.
Despite these outsourcing arrangements, Finn found that ultimately the responsibility for ensuring that the psychiatric services were adequate and effective lay with the government.
Finn found that the structure of contracting arrangements gave rise to "a clear and obvious need for regular and systematic auditing" of those services by the government. There has been no such audit of the provision of psychiatric services for Baxter detainees.
Finn found that the only medical practitioner contracted to provide psychiatric services at Baxter, Frukacz, only visited Baxter every six to eight weeks, despite "the known prevalence of mental illness amongst the over 100 long-term detainees at Baxter".
In the case of M and S, Finn found that this was "clearly inadequate".
A number of medical practitioners, including Richards, Dudley and Jureidini, oppose mandatory detention of asylum seekers. This opposition is based on the belief that Baxter is a contributing cause of mental illness for detainees. They thought it was unreasonable to continue to treat M and S in Baxter, an opinion that was not shared by Frukacz. Finn, however, agreed with Richards, Dudley and Jureidini rather than Frukacz.
Finn's decision may well pave the way for further, possibly successful, legal challenges to the government's policy of mandatory detention of asylum seekers in Baxter and other detention centres.
From Green Left Weekly, May 25, 2005.
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