Birchall, Ebony --- "Hunger strikes in immigration detention: Regulation 535 of the Migration Regulations 1994 (Cth)" [2015] PrecedentAULA 41; (2015) 128 Precedent 52

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HUNGER STRIKES IN IMMIGRATION DETENTION

REGULATION 5.35 OF THE MIGRATION REGULATIONS 1994 (CTH)

By Ebony Birchall

Hunger strikes are common in Australia’s immigration detention centres.^[1] The well-publicised hunger strikes on Manus Island earlier this year involved up to 700 detainees.^[2] Hunger strikes have long been used by detainees around the world as a last resort protest. They are often the only option available to detainees to gain attention or to demonstrate their free will .^[3]

Regulation 5.35 of the Migration Regulations 1994 (Cth) (Reg 5.35) allows the Department of Immigration and Border Protection (the Department) to authorise medical treatment of hunger-striking detainees without the detainees’ consent. Medical treatment can involve the administration of nourishment and fluids and the Department’s authorisation can extend to the reasonable use of restraint and sedatives. Silencing a hunger striker’s protest by non-consensual medical treatment raises a number of complex legal and ethical considerations.^[4] This article considers three legal issues arising from Reg 5.35.

REGULATION 5.35 OF THE MIGRATION REGULATIONS 1994 (CTH)

In 1992, three Cambodian asylum seekers, detainees in Villawood Detention Centre, NSW, commenced a hunger strike. After two weeks, all three had been hospitalised and were close to death. The Department sought orders from the Supreme Court of New South Wales to administer lifesaving medical treatment and was granted an interim order permitting the intervention.^[5] Following this incident, the Australian government passed law, now contained in Reg 5.35, which provides that the Secretary of the Department may authorise medical treatment to be given to a detainee if, on the written advice of a medical practitioner, s/he forms the opinion that the detainee needs medical treatment. The Secretary must be of the opinion that if treatment is not given there will be a serious risk to the detainee’s health.

Fiske and Kenny have written extensively on Reg 5.35. They report that despite attempts to obtain information from the Department, there is still a lack of clarity and transparency surrounding the number of detainees participating in hunger strikes, the frequency of the use of Reg 5.35, and the Department’s policy on managing hunger strikes; none of which is recorded in the public domain.^[6]

CONTRARY TO INTERNATIONAL HUMAN RIGHTS LAW?

Reg 5.35 has been criticised by the then Human Rights and Equal Opportunity Commission (HREOC).^[7] In 1998, HREOC reported that the regulation may be in breach of Article 10.1 of the International Covenant on Civil and Political Rights (ICCPR) which states ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’ In arguing that non-consensual medical treatment breaches the ICCPR, HREOC cited expert psychiatric opinion which stated that asylum seekers, who have fled state persecution, are exposed to further psychological traumatisation as a result of forced medical treatment. HREOC recommended that Reg 5.35 be repealed.^[8]

Reg 5.35 has also been criticised as offending the Declaration of Tokyo (1975)^[9] and the Declaration of Malta (1991),^[10] both of which prohibit the use of non-consensual forced nourishment of hunger strikers who are mentally competent.^[11] These World Medical Association (WMA) declarations are comprehensive guides to medical practitioners on the complex ethical considerations involved in managing a prisoner or detainee on hunger strike.

CONTRARY TO HEALTH PRACTITIONERS’ PROFESSIONAL OBLIGATIONS?

Health practitioners are regulated under the Health Practitioner Regulation National Law Act 2009 (the National Law) which has been adopted in each state and territory. The National Law provides a framework for regulating health practitioners’ performance and conduct. The performance and conduct of practitioners is assessed with reference to the professional standards or codes of conduct set by the relevant national boards.

It is well established in medical practice that informed consent must be obtained before performing any medical treatment or procedure for an adult with capacity.^[12] There is an exception in emergencies, and other considerations become necessary for minors or persons under an incapacity.^[13] This principle is contained in the Medical Board of Australia’s Code of Conduct at 3.5.2, which states that good medical practice is obtaining informed consent before providing treatment (except in an emergency).^[14] At 3.12.5, the Code of Conduct also states that patients have a right to refuse medical treatment.^[15]

The Australian Medical Association (AMA) is recognised as the peak membership organisation representing registered health practitioners in Australia. The AMA produced a position statement in 2011 titled ‘Health Care of Asylum Seekers and Refugees’.^[16] It addressed hunger strikes specifically, endorsing the WMA declarations described above. The AMA stated its belief that the detention environment should never become so intolerable that asylum seekers would consider hunger striking, and that visa processing should be expedited to avoid self-harm arising from frustration. The AMA’s position on how a hunger strike should be managed includes that doctors should be available to continually assess and counsel the detainee; provide medical information to the detainee; and be free to make treatment decisions that he/she considers to be in the best interest of the individual.^[17]

A number of doctors who have worked in immigration centres have raised concerns that complying with directions from the government or companies contracted to manage immigration centres may result in breaches of their professional conduct obligations.^[18] If practitioners are called on to undertake treatment against the consent of detainees, they should be aware of their professional obligations and act independently of government or institutional interests.^[19] Practitioners should be aware of and encouraged to cite subsection (6) of Reg 5.35, which states: ‘Nothing in this regulation authorises the Secretary to require a registered medical practitioner to act in a way contrary to the ethical, moral or religious convictions of that medical practitioner.’

INVALID UNDER ADMINISTRATIVE LAW PRINCIPLES?

HREOC’s 1998 report cites an unreported decision from Justice Powell of the Supreme Court of New South Wales, which doubted the lawfulness of Reg 5.35. Justice Powell noted that Reg 5.35 provides an authority under delegated legislation rather than statute, which is contrary to common law and which may be in breach of international law.^[20] Under common law, adults with capacity are entitled to refuse medical treatment, even in cases where medical treatment is necessary to prolong that person’s life. Medical practitioners in all states or territories of Australia, who administer medical treatment without their patient’s consent, expose themselves to actions in trespass to the person (as such conduct may constitute a battery). ^[21]

A recent media comment made by the Honourable Peter Dutton, Minister for Immigration and Border Protection, seems to indirectly recognise that forcing fluids or food on a hunger striking asylum seeker is prima facie unlawful.^[22] In the interview on 7 April 2015 concerning a hunger striking detainee in Western Australia, Mr Dutton stated:

‘I sought legal advice... about whether or not I could legally force fluids and food upon a person and the very clear legal advice is that I can't. I would be committing the doctors to an offence of common assault under WA law and the prospects of me getting that injunction from the courts on the legal advice available to me was zero.’^[23]

Mr Dutton was not questioned on Reg 5.35 directly, nor did he refer to the regulation during this interview.

A further argument could be mounted that Reg 5.35 restricts an implied right contained in the Commonwealth Constitution, to freedom of expression or speech. Kenny explains a court would need to assess the competing rights of the individual to refuse medical treatment against the justification that the infringement is reasonably appropriate, serving a legitimate purpose.^[24]

CONCLUSION

Reg 5.35 has not been tested by Australian courts, but a legal challenge may be warranted. Silencing a hunger striker’s protest with non-consensual medical treatment involves complex legal and ethical issues which need to be carefully considered. Last year, the New Zealand High Court decided that a prisoner’s right to self-determination should be favoured over the state’s interest in preserving life and ordering the administration of its prison system.^[25] Alternatively, there have been US cases and European Court of Human Rights cases which supported state intervention.^[26]

The legal uncertainty surrounding Reg 5.35 is concerning. The World Medical Association has created helpful and comprehensive guidelines for managing hunger strikes which could be utilised by the government.

Ebony Birchall is a lawyer in the Medical Law Dept, Slater and Gordon, Sydney. EMAIL

[e-mail].

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^[1] For a full history, see Mary Anne Kenny and Lucy Fiske, ‘Regulation 5.35: Coerced treatment of detained asylum seekers on hunger strike: Legal, ethical and human rights implications’, in S Juss (ed), The Ashgate Research Companion to Migration Law, Theory and Policy, (Farnham, Surrey: Ashgate Publishing Limited, 2013) 423-42.

^[2] Ben Doherty, ‘Manus Island hunger strike continues as six refugees released into community’, The Guardian (27 January 2015) http://www.theguardian.com/australia-news/2015/jan/27/manus-island-hunger-strike-continues-as-six-refugees-released-into-community accessed on 4 April 2015.

^[3] Lucy Fiske, Mary Anne Kenny and Nicholas Procter, ‘Manus Island hunger strikes a call to Australia’s conscience’, The Conversation (19 January 2015) http://theconversation.com/manus-island-hunger-strikes-are-a-call-to-australias-conscience-36419 accessed on 4 April 2015.

^[4] For a full consideration of the ethical considerations involved, see Silove and Mason, ‘Ethical considerations in the management of asylum seekers on hunger strike’ (1996) 275 Journal of the American Medical Association 410.

^[5] Human Rights and Equal Opportunity Commission, ‘Those who’ve come across the seas: the report of the Commission’s Inquiry into the detention of unauthorised arrivals’ (1998), 101 https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/publications/those-whove-come-across-seas-detention accessed on 3 April 2015.

^[6] Kenny and Fiske, above note 1 at 427.

^[7] Human Rights and Equal Opportunity Commission, above note 5 at 123.

^[8] Ibid, at point 6.8 on px.

^[9] World Medical Association, ‘Declaration of Tokyo –Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment’ (1975) http://www.wma.net/en/30publications/10policies/c18/ accessed on 7 April 2015.

^[10] World Medical Association, ‘Declaration of Malta on Hunger Strikers’ (1991) http://www.wma.net/en/30publications/10policies/h31/ accessed on 7 April 2015.

^[11] Mary Kenny, Derrick Silove and Zachary Steel, ‘Legal and ethical implications of medically enforced feeding of detained asylum seekers on hunger strike’ (2004) 180 Medical Journal of Australia 237, 239.

^[12] For further discussion, see chapter 4 of Janine McIlwraith and Bill Madden, Healthcare and the Law (2010, 5th Ed) Thomson Reuters.

^[13] Ibid.

^[14] Medical Board of Australia, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ (2014) http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx accessed on 4 April 2015.

^[15] Ibid.

^[16] Australian Medical Association, ‘Health Care of Asylum Seekers and Refugees’ (2011) https://ama.com.au/position-statement/health-care-asylum-seekers-and-refugees-2011 accessed on 3 April 2015.

^[17] Ibid.

^[18] For a more comprehensive discussion of the regulation of health practitioners in the detention environment, see Ebony Birchall, ‘Regulation of Health Practitioners in Immigration Detention Centres’, Precedent 127, March/April 2015, pp48-52.

^[19] Mary Kenny, Derrick Silove and Zachary Steel, above note 11 at 237.

^[20] Human Rights and Equal Opportunity Commission, above note 5 at 102.

^[21] See Hunter and New England Area Health Service v A [2009] NSWSC 761.

^[22] Geoff Hutchinson, Interview with Peter Dutton MP (720 ABC Perth, 7 April 2015) http://www.minister.immi.gov.au/peterdutton/2015/Pages/update-saeed-hassanloo.aspx accessed on 29 April 2015.

^[23] Ibid.

^[24] Mary Kenny, ‘Force-feeding asylum seekers’ [2002] AltLawJl 41; (2002) 27(3) Alternative Law Journal 107, 111.

^[25] Beatrice Paull, ‘Court upholds a prisoner’s ability to hunger strike’, Human Rights Law Centre (25 June 2014) http://hrlc.org.au/court-upholds-a-prisoners-ability-to-hunger-strike-and-refuse-treatment/ accessed on 4 April 2015.

^[26] Ibid.