Discussion week 2

260 PSYCHIATRY, PSYCHOLOGY AND LAWVOLUME 14 NUMBER 2 2007 pp. 260–271

Correspondence to: Professor Bernadette McSherry, Faculty of Law, Building 12, Monash University, Clayton VIC 3800, Australia. E-mail: [email protected]

Providing Mental Health Services and Psychiatric Care to Immigration Detainees: What Tort Law Requires

Bernadette McSherry and Azadeh Dastyari Monash University, Australia

There is increasing evidence that the provision of mental health services is inadequate for immigration detainees.In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549, Justice PaulFinn held that the Commonwealth had breached its duty to ensure that reasonable care was taken of two Iranian detainees, ‘S’ and ‘M’, in relation to the treatment of their respective mental health problems. The lack of proper psychiatric care at Baxter Detention Centre was also highlighted in the Palmer Inquiry into the detention of Cornelia Rau. This article analyses the Commonwealth Government’s legal duty to provide adequate levels of mental health services and psychiatric care to immigration detainees as well as the implications of the cases brought on behalf of a child refugee, Shayan Badraie and an Iranian man, Parvis Yousefi against the Department of Immigration and Citizenship and the detention centre operators.

There is growing evidence that the detention of ‘unlawful noncitizens’ under s189(1) of the Migration Act 1958 (Cth) contributes to feelings of anxiety, hopelessness and depression1 and that children are particularly vulnerable to the effects of prolonged detention.2 It has been suggested that the detention environment is a direct contributor to psychological stress, either on its own or as a ‘retraumatising influence’.3 This is borne out by suicide rates in detention centres, which are estimated to be between 3 to 17 times that in the Australian community.4 Refugees who have spent time in detention have twice the risk of depression and three times the risk of posttraumatic stress disorder when compared to refugees who have not been in detention.5 Further, self-harm appears to be widespread among the detainee population. Department of

Immigration and Citizenship (DIAC) records reveal 506 incident reports of attempted or actual self-harm involving 878 detainees between July 2002 and June 2005.6 Already, a number of lawsuits have been filed on behalf of detainees for harms sustained while in detention and it is expected that these will continue.7

It is well established that the Commonwealth government has a duty to provide health care to immigration detainees. Ian Freckelton has pointed out that the civil justice system may have a role to play in ensuring that the Government’s duty of care incorporates the vulnerability of immigration detainees to psychiatric illness.8 The High Court remarked in the case of Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs & Ors9 that if detention centres

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fail to comply with a duty of care, they may be liable for negligence through tort law.

However, there are two main hurdles that will have to be overcome in any legal claims that the government has failed in its duty of care. First, with the ‘outsourcing’ of the day-to-day management of detention centres, a legal issue arises as to whether or not this duty is delegable to third parties. There is now legal precedent in the Federal Court decision of S v Secretary, Department of Immigration Multicultural and Indigenous Affairs10 suggesting that this duty is not ‘delegable’. Second, the perceived insurance crisis in 2001–2002 has led to the reform of tort law in most Australian jurisdic- tions with the result of curtailing legal actions that may be instituted. The limitations placed on tort liability, particularly for mental harm may prove to be an obstacle for some claims for psychiatric injury caused by detention.

This article will first outline the Commonwealth government’s duty of care by outlining the role and responsibility of the private detention centre service provider. It will then analyse S’s case and outline the cases of Shayan Badraie and Parviz Yousefi, as well as the highly publicised case of Cornelia Rau. The article will explore how recent tort law reform may have an impact on the liability of the Commonwealth government. The main focus of this article will be on the duty of care owed by the Commonwealth government and whether or not the government has been fulfilling its duty of care to provide mental health services and psychiatric care to immigration detainees.

Immigration Detention Standards Immigration detention services must comply with the Immigration Detention Standards (IDS) which were developed by the Department of Immigration and Citizenship in consultation with the Commonwealth Ombudsman’s Office and the

Human Rights and Equal Opportunity Commission.11 The IDS relate to the quality of care and quality of life expected in immigration detention facilities in Australia. The IDS form the basis for the contract between the Department and the detention service provider.

Part 1 of the IDS sets out duty of care standards (see Table 1), and Part 2 deals specifi- cally with health matters (see Table 2).

The IDS contain a statement that while the service provider is under a duty of care in relation to detainees, ‘ultimate responsibility for the detainees remains with Department of Immigration and Citizenship (DIAC) at all times’.12 In addition to the IDS, on 12 May 1999, the Commonwealth released a document called ‘General Detention Procedures’ which states that ‘officers are obliged to take all reasonable action to ensure detainees do not suffer any physical harm or undue emotional distress while detained’.13

In a submission to the Human Rights and Equal Opportunity Commission (HREOC), the Commonwealth has also stated:

While retaining ultimate responsibility for all detainees, the Department, exercises its duty of care commitments through the engagement of a Services Provider within the framework of relevant legislation, comprehensive contractual obligations, the Immigration Detention Standards and associated performance measures … While in detention, the ability of individu- als to control their own environment is restricted … this places particular responsibili- ties on the Commonwealth with regard to duty of care …14

While these documents clearly indicate that the Commonwealth government owes a duty of care to detainees, one of the legal issues that has arisen is whether or not this duty of care is ‘delegable’. The Commonwealth contracts out the day-to- day operations of detention centres to private

Table 1 Duty of Care

Standards Performance measures

1.3.1 The day-to-day care needs of detainees are met. No substantiated instance where a detainee could not have their day-to-day care needs met.

1.3.2 A secure and safe detention environment is established No instance of a detainee coming to harm as a result of risks and maintained. not being identified, assessed, managed and ameliorated.

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companies such as GSL (Australia) Pty Ltd. These companies then subcontract out health care services to other companies which may also hire private medical practitioners. This outsourc- ing means that service provision is fragmented between a variety of unconnected service providers. In contracting out its responsibilities, there is a legal question as to whether the Commonwealth is also contracting out its duty of care. The case discussed in the next section strongly suggests that the government’s duty of care is nondelegable.

The Case of ‘S’ The most significant case to date as to the Commonwealth’s duty of care to immigration detainees is that of S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs15 which was heard by Justice Paul Finn of the Federal Court of Australia.

Two Iranian men, known only as ‘S’ and ‘M’, who had both been detained in various detention centres for about 5 years, applied to the Federal Court for an order compelling their assessment for admission to a mental health facility in Adelaide. After S had given evidence during the hearing of the application, a doctor assessed him and made an order for his transfer under the Mental Health Act 1993 (SA). Shortly prior to the delivery of Finn J’s judgment, M was also transferred to a

mental health facility. Accordingly, Finn J did not have to grant relief for the men’s applications, but he stated that he would have made the orders sought and then gave detailed reasons why the applications were properly made. He also ordered that the applicants’ costs be paid for by the Commonwealth government.

Justice Finn found that the Commonwealth government had breached its duty to ensure that reasonable care was taken of S and M in detention in relation to the treatment of their respective mental health problems. This was attributable to the systematic defects in the manner in which mental health services were provided at the Baxter Detention Centre in South Australia.

The Commonwealth government has outsourced the day-to-day operation of Baxter to a company called GSL (Australia) Pty. Ltd. GSL in turn contracted its obligation to provide health care services to two companies, Professional Support Services, which provides psychological services and International Medical Health Services, which provides general medical services. The latter contracted with a Port Augusta medical practice to provide general medical services, and a psychiatrist, Dr Andrew Frukacz, a private practitioner from Bathurst in New South Wales. Dr Frukacz agreed to visit once every 6 to 8 weeks on Saturdays. At the time of the hearing, there were 326 detainees in Baxter, with a third

Table 2 Care Needs

Standards Performance measures

2.2.1.1.1 Detainees are able to access timely and effective No substantiated instance of a detainee not having primary health care, including psychological/ access to health care of this nature. psychiatric services (including counselling): • in a culturally responsive framework • where a condition cannot be managed within the facility,

by referral to external advice and/or treatment.

2.2.1.1.2 In establishing the health care service, the services provider: a. Department is provided with evidence on a monthly a. ensures services are delivered by qualified, registered basis that the health care service is available and

appropriately trained health care professionals accessible. b. develops and implements a health care plan for each facility b. No substantiated instance of health care staff not

being qualified, registered and appropriately trained. c. draws on the advice, knowledge and experience of a c. No substantiated instance of the centre health plans

health advisory panel. not being implemented, effective or reviewed periodically

d. No substantiated instance of advice of the health advisory panel not being drawn on.

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being long-term detainee asylum seekers, between 20 and 30 of whom were seen by Dr Frukacz.

S had committed acts of self-harm on a number of occasions prior to December 2004, including cutting his arms and chest with a razor and cutting his head by putting it into a window. After the latter incident, he was taken to the Management Unit for over a week. This unit has 10 single rooms where individuals considered disruptive are incarcerated. In April 2004 he was placed in the Management Unit for a week, and was then put in Red One for about 2 months. Red One is an alternative ‘step-down’ facility to the Management Unit for less disruptive detainees. He described this as ‘terrifying’.

Towards the end of 2004, S found out that his plans to get married in Baxter had fallen through. He became very distressed and tried to cut his neck. In December, he took part in a hunger strike with ‘M’ and another man. The three men stayed on top of the roof of the gymnasium for 9 days, which caused them all to suffer from dehydration and severe sunburn.

On 30 December 2004, S was seen by a psychiatrist who was voluntarily attending Baxter to prepare reports for immigration lawyers. This was the first time S had been psychiatrically assessed during his year at Baxter. The psychiatrist wrote: ‘because of the severity of his condition, he needs further psychiatric treatment, probably in an inpatient facility. He also needs a thorough medical review’.16

On the 12 and 13 February 2005, S was reviewed by the psychiatrist contracted to Baxter, who diagnosed him with severe depression and put him on antidepressant medication. He raised the possibility of electro-convulsive therapy, which would have to be administered at a psychiatric facility, but was not prepared to recommend trans- fer at that stage.

On 29 March 2005, S was assessed by another psychiatrist for the purpose of legal proceedings who diagnosed S with severe depression with anxiety symptoms. He stated that S needed to be transferred as the current state of his illness needed review by a psychiatrist on a daily basis.

M, like S, had spent about 5 years in deten- tion. He was placed in the Management Unit on one occasion where he was assaulted. Several guards were later dismissed because of this incident. He took part in the rooftop hunger strike along with S and another man in

December 2004. M was assessed by a general practitioner who voluntarily attended Baxter after the hunger strike and was diagnosed as being profoundly depressed and as requiring care in a psychiatric facility. This was not acted upon.

M saw the psychiatrist contracted to Baxter for the first time on 12 February 2005. The psychiatrist was of the opinion that M was ‘significantly depressed and … anxious with feelings of despair largely related to his fear of deportation’.17 He prescribed medication, but was of the opinion that M did not need to be transferred to a psychiatric facility. However, he went on to note that the conditions of detention were contributing to M’s depression and anxiety and that the medical treatment ‘will only have a partial affect [sic] on his condition’.18

M was seen by another psychiatrist on 29 March 2005 for the purpose of legal proceed- ings. This psychiatrist agreed that while M remained in detention, he was likely to remain depressed and his demoralisation and despair were likely to increase. Transfer to a psychiatric facility was recommended.

Justice Finn found that there was an inade- quate level of provision of psychiatric services at Baxter and that the failure to provide psychiatric care to both applicants in December 2004 after the rooftop protest was in breach of the Commonwealth’s duty to take reasonable care of the detainees. In relation to S, Justice Finn held that his mental health needs were not only not being met, but that he was being treated with neglect and disregard. He found that M’s difficulty in accessing reasonable mental health care services was not as striking as S’s, but that his condition from late December 2004 was treated with neglect. He found that the applicants ‘did not have to settle for a lesser standard of mental health because they were in immigration detention’.19

In relation to the outsourcing arrangement of medical services, Justice Finn remarked:

The Commonwealth entered into a complex outsourcing arrangement for the provision of mental health services which left it to contractors and subcontractors to determine the level of services to be supplied. The hallmarks of these arrangements were devolution and fragmenta- tion of actual service provision. The service provision was so structured that there was a clear and obvious needs [sic] for regular and system- atic auditing of the psychological and psychiatric services provided if the Commonwealth was to

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inform itself appropriately as to the adequacy and effectiveness of these services for which it bore responsibility. There has to date been no such audit.20

Justice Finn’s findings were echoed in that of the Palmer Report, which found that the mental health care given to the detainee, Cornelia Rau while she was detained in Baxter was inadequate.21 This report is discussed later in this article.

In Justice Finn’s opinion, the Commonwealth’s duty of care to S and M was not delegable on the basis of the complex outsourcing arrangements. Rather, the Commonwealth itself had the responsi- bility to ensure the provision of medical services was adequate and effective. This decision has set a significant precedent for subsequent actions against the Commonwealth government in relation to the provision of mental health services and psychiatric care in immigration detention. Two such cases are explored below.

The Case of Shayan Badraie In January 2000, 5-year-old Shayan, his father and pregnant stepmother flew out of Iran to Malaysia. Shayan’s father, Mohammad Badraie, and his wife, Zahra Saberi, were members of a minority religious group Al-Haqq, and feared that they would be harmed by Iranian authorities if they stayed in Iran. From there, they travelled by boat to Indonesia and then by boat to Australia. In March 2000, because they arrived in Australia without visas, they were placed at the Woomera detention centre in South Australia. They stayed there until 3 March 2001 when they were moved to the Villawood detention centre in Sydney. On 23 August 2001, Shayan was separated from his parents and placed with foster parents in Sydney where he stayed until 16 January 2002. While with the foster parents, his legal status remained that of an immigration detainee. This meant that the house where he was staying and the school he attended were classified as places of detention and he had to be supervised at all times.

On the 16 January 2002, Shayan, now aged 7, was removed from foster care and placed in the community with his mother and baby sister who had been granted bridging visas. Shayan’s father remained in detention at Villawood until 9 August 2002, when he was also released on a

temporary protection visa, having been recog- nised as a refugee.22

In his year at Woomera detention centre, Shayan regularly witnessed confrontations between officers and detainees. Woomera was designed as a short-term temporary centre for the processing of new arrivals and lacked facili- ties for long term detainees. It was closed down in April 2003.

At the time Shayan and his family were detained, Woomera had at times as many as 1400 detainees. There were riots in April, June and August and mass hunger strikes in November 2000. In August 2000, Shayan witnessed officers beating detainees with batons and the use of water cannons and CS gas (commonly called tear gas). On 28 November 2000, Shayan saw a fellow detainee holding a broken piece of mirrored glass in his right hand against his chest threatening to kill himself.

The next day, Shayan was seen by a counsellor who noted that ‘he is very frightened. He fears that the man will come and cut the children … He has generalised his fears to all windows and mirrors seeing them all as potential weapons. He was unable to sleep last night and is not eating. I believe that Shayan needs to be moved to a differ- ent and safe environment in order for him to be able to psychologically deal with his fears’.23

Following the incident in November, Shayan started wetting the bed and suffering nightmares. In January 2001, Shayan witnessed a man climb a tree in the main compound and threaten to jump, and he also saw one of the officers making mastur- bating gestures at detainees and telling his father to ‘fuck off out of here’.

On 20 January 2001, Shayan and his family were moved to Sierra Compound, which was the security compound, apparently to move them away from an influx of new detainees, although they were not told this. Shayan and his sister, who was then aged three, and two teenage girls were the only children there.

On 25 January 2001, Shayan had his first meeting with a psychologist, who was of the opinion that Shayan was exhibiting signs of posttraumatic stress disorder and that Shayan and his family be relocated to a more appropriate centre as a matter of urgency. Over the next month, the psychologist made repeated reports to the Department indicating that Shayan and his family be moved. On 27 February 2001 he wrote

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‘I am of the opinion that the failure to take any action to protect this child from further exposure is abusive on the part of the governing authorities’.24

That same day, Shayan witnessed a detainee smash windows and window frames in the compound.

Shayan and his family were finally taken to Villawood on 3 March 2001. He was not given any psychiatric assessment there, but his care was restricted to psychological services and general practitioner services. On the 30 April 2001, it was recorded that Shayan had witnessed a detainee slash his wrists. He did not speak for the next 2 days and was taken to the Westmead Children’s Hospital for treatment.

Throughout the course of 2001, Shayan was hospitalised on eight separate occasions for a total of 86 days. Despite medical evidence that it was in his best interests to reside with his family outside of the detention centre, in August 2001 he was placed with foster parents who were unknown to him and who had no experience in caring for a foster child.

Shayan’s family was finally reunited on the 9 August 2002 and they have been living in the community on temporary protection visas. Shayan continues to suffer from nightmares, has difficulty in sleeping and wets the bed. He is on anti-depres- sant medication.

Following a complaint by his father on 29 August 2001, the Human Rights and Equal Opportunity Commission investigated Shayan’s treatment at Woomera and Villawood.25 The Commission found that his detention had breached a number of Articles in the Convention on the Rights of the Child (1991)26 and recom- mended an apology and compensation of around $70,000. These recommendations were not followed by the Commonwealth.

Shayan’s story was featured on Four Corners on ABC TV in August 2001, and in many ways it was his story that galvanised activists working toward stopping the immigration detention of children. The Human Rights and Equal Opportunity Commission’s Report, following its inquiry into children in immigration detention over the period 1 January 1999 to 31 December 2002, was tabled in Parliament on 12 May 2004.27 While the government rejected the report’s major findings and recommendations,28 there seems to have been a change in the approach toward detaining children.29

Shayan’s father brought an action in the common law division of the Supreme Court of New South Wales on Shayan’s behalf. The action was against the Commonwealth government and Australasian Correctional Services Pty Ltd and Australasian Correctional Management Pty Ltd, the companies that operated Woomera and Villawood at the time Shayan was detained.

One of the main arguments put forward by the plaintiff was that the Commonwealth owed Shayan a duty to exercise reasonable care to prevent foreseeable injury, which is a nondelegable duty. Significantly, the Commonwealth accepted the analysis of Finn J in S’s case concerning the Commonwealth’s duty of care and acknowledged that this is nondelegable.30 The main issue in contention was whether the Commonwealth had in fact breached that duty. It was argued that the defendants breached their duty of care by permit- ting Shayan to remain in immigration detention and in foster care for a prolonged period of time with no provision or adequate provision of expert psychological and psychiatric assessment and treatment and in allowing him to be exposed to numerous traumatic events.

The Commonwealth government applied to amend its defence to include the claim that Shayan’s injuries, which were not admitted, were caused by the actions of his parents, including causing his detention by entering Australia as unlawful noncitizens and by refus- ing to agree to leave Australia. Justice Johnson refused the Commonwealth’s application, stating that ‘[s]uch factors are as irrelevant to this claim as would be the reasons why a prisoner was sentenced to imprisonment in a claim brought by the prisoner against prison authorities in negligence’.31 Justice Johnson did, however, allow the Commonwealth to amend its defence to claim that the parents engaged in behaviour which encouraged Shayan not to eat and promoted his injuries.32

The case was settled out of court on 3 March 2006 for $400,000 compensation plus costs to be paid by the Commonwealth government. Judgment was entered against the Commonwealth government and the case against the detention centre operators was discontinued. Significantly, the Commonwealth government did not attempt to have judgment entered without an admission of liability. Strictly speaking, this could be inter- preted as a concession of a breach of duty of care

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by the Commonwealth, but it is not clear if the failure to have judgment entered without admis- sion of liability was intentional or accidental. The Commonwealth government and the detention centre operators have begun mediation in an attempt to resolve the cross claims.

Although the out-of-court settlement does not result in a legal precedent, it does indicate that if those who manage detention centres and the Commonwealth fail to comply with their duty of care, they may be liable in tort. The case may also have set a strong moral precedent33 and acted as a guide to future decision makers.

The Case of Parvis Yousefi Another tort claim by a former detainee who has alleged inadequate mental health services and psychiatric care in immigration detention is currently before the Supreme Court of New South Wales.34 A statement of claim was lodged on behalf of Mr Parvis Yousefi by his wife in August 2005. Mr Yousefi is suing the Commonwealth of Australia and the private detention centre opera- tors, Australian Correctional Services, Australian Correctional Management and Group 4 Flack Global Solutions, for psychiatric injuries he allegedly suffered while in Woomera and Baxter detention centres. He is claiming loss of future earnings and the cost of his medical care.

Mr Yousefi, an Iranian refugee, fled Iran with his wife and then 10-year-old son in October 2000. The family arrived at Ashmore Island in April of 2001 and were then moved to Woomera detention centre.

It is alleged that Mr Yousefi’s mental health deteriorated very soon after his detention in Woomera. Mr Yousefi witnessed riots, fires, use of water cannons, tear gas, attempted suicides and self-harm by other detainees and acts of violence and intimidation towards other detainees and his family during his time in detention. He was also subjected to tear gas, separation from his family, and prolonged detention in a physically restrain- ing environment.

Mr Yousefi was able to work in the centre’s kitchen, garden and dining room at the beginning of his time in detention, but he soon stopped washing, shaving and changing his clothes. He participated in hunger strikes and sewed his lips together. He made multiple attempts at suicide by hanging and was hospitalised on a number of occasions. It is alleged that symptoms of Mr

Yousefi’s mental illness were dismissed by the detention centre operators and he was labelled as a troublemaker. To control his behaviour, Mr Yousefi was kept in isolation detention on a number of occasions, contrary to medical advice.

Between August 2001 and May 2002 Mr Yousefi was separated from his family. His son and wife were taken to the residential housing project in Woomera while Mr Yousefi remained detained at the main detention centre. Mr Yousefi had no phone or other contact with his wife and son for periods of up to 8 weeks.

In May 2002, the Department of Family and Youth Services noted that Mr Yousefi had tried to hang himself twice and that his son, by that time 12 years of age, had attempted self-harm. A note by an Australian Correctional Management psychiatric nurse indicates that Mr Yousefi was depressed and suicidal. A total of 15 reports from medical experts were lodged urging the release of Mr Yousefi and his family from detention. Eleven of the 15 reports were from psychiatrists who were afraid that his severe illness and suici- dal tendencies could be exacerbated by his continuing detention and were caused by posttraumatic stress and depression.35 The Human Rights Commissioner, Sev Ozdowski, also wrote to the then Immigration Minister, Mr Ruddock in December 2002, urging the release of the Yousefi family from detention on the grounds that the family’s case constituted a ‘medical and psychiatric emergency’.36 The Commonwealth did not heed the advice and the family was not released until June 2004, when they were finally recognised as refugees.

The case against the Commonwealth govern- ment and the detention centre operators centres around the allegation that the Commonwealth breached their duty of care to Mr Yousefi by failing to act timely on the advice to release him from immigration detention or to adequately provide him with expert medical care and treat- ment. The plaintiff is also arguing that he was exposed to a number of traumatic events during his time at the detention centres that contributed to his mental deterioration, as did his prolonged separation from his wife and son.

Given the recognition and admission of a nondelegable duty of care for detainees in the previous tort cases involving immigration deten- tion centres outlined above, it will be very difficult for the Commonwealth government to deny

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liability in Mr Yousefi’s case. The court’s findings in this case may provide guidance on whether the Commonwealth’s duty of care extends to heeding advice with regards to the welfare of detainees and protecting them from witnessing and experiencing traumatic events.

There have been numerous hunger strikes, disruptive and occasionally violent protests, attempted suicides and actual suicides in immigra- tion detention.37 Such incidents have been witnessed by detainees and may have detrimentally affected the mental health of some of them.38 In addition to psychological and psychiatric reports on individual detainees, there have also been many reports on the detrimental impact of detention on the mental health of detainees particularly by the Human Rights and Equal Opportunity Commission.39 Much of the evidence of the harmful nature of detention and requests for release of detainees has gone unheeded by the govern- ment.40 The Palmer inquiry into the circumstances surrounding the detention of Cornelia Rau found:

Considerable evidence of deafness to the concerns voiced repeatedly by a wide range of stakeholders, a firmly held belief in the correct- ness and appropriateness of the processes and procedures that exist and a culture that ignores criticism and is unduly defensive, process motivated and unwilling to question itself. Energies seemed to be channelled more into justifying and protecting the status quo.41

Thus a number of detainees may have suffered in immigration detention because of a failure to protect them from traumatic events or to accept medical advice for their release. However, even if the case of Mr Yousefi is successful, it does not necessarily follow that other detainees who suffered psychiatric injury because of inadequate psychiatric care and health services in immigration detention will be able to be compensated for the breach of a duty owed to them.

The Case of Cornelia Rau In April 2007, lawyers for Cornelia Rau commenced legal proceedings in the New South Wales Supreme Court against the Federal Government seeking compensation for wrongful detention and the abuse and suffering Cornelia Rau suffered whilst in immigration detention. The circumstances of Cornelia Rau’s detention have been previously detailed by Ian Freckelton in this

journal.42 The negligence claim is based on the fact that government failed to recognise and treat Cornelia Rau’s condition and the impact of deten- tion on Cornelia Rau’s health. Cornelia Rau spent more than 10 months without medication. The lack of treatment and the detention centre environment may have led to deterioration in Cornelia Rau’s mental health.

Cornelia Rau is a German citizen who has been a permanent resident of Australia since she migrated to Australia with her family at the age of 18 months. Ms Rau has a history of mental illness and she has been diagnosed variously as suffering from ‘bipolar disorder’, ‘schizoaffective bipolar’ and ‘chronic schizophrenia’.

Cornelia Rau discharged herself from a hospital in Sydney where she was receiving treatment in 2004 and made her way to far North Queensland. On 29 March 2004 Ms Rau was seen at the Han River Roadhouse at Coen, where she told patrons that she was a German backpacker who had lost her passport. The roadhouse owner became concerned with her erratic behaviour and called the local police, who took Ms Rau into detention on behalf of the Department of Immigration. She was then transferred to Cairns and then to the Brisbane women’s correctional centre at Wacol. Ms Rau was detained on suspicion of being an illegal immigrant despite being a permanent resident.

The Department of Immigration failed to identify Cornelia Rau in Brisbane. She disguised her identity calling herself ‘Anna Brotmeyer’, ‘Anna Schmidt’ and other names and continued to insist that she was German. She was referred for mental health assessment at Brisbane’s Princess Alexandra Hospital but was returned to the prison.

In October 2004, Ms Rau was taken to Baxter Immigration Detention facility. She was assessed by a psychologist on 6 November but the psychol- ogist failed to make any definitive findings about her mental health. In Baxter, Ms Rau spent extended periods in solitary confinement. Her behaviour became increasingly disturbed. She sometimes screamed uncontrollably, ate dirt and failed to clean herself. Many of the guards in the Baxter detention facility believed Ms Rau was acting erratically in order to seek attention and to be released from detention.

Refugee advocacy groups outside immigration detention began to hear about the strange behav- iour of Ms Rau from detainees in Baxter detention facility in late December 2004. Other immigration

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detainees were extremely concerned about Ms Rau’s mental health. Refugee advocates alerted journalists to Ms Rau’s plight and a story was published about her in The Age on 31 January 2005.43 The Rau family recognised Cornelia and secured her release.

Cornelia Rau was admitted to the Glenside Psychiatric Hospital after her release. The Queensland Premier, Peter Beattie, apologised for the failure of his agencies to properly care for Ms Rau on 10 February 2004. Three days later, Peter Costello, the Federal Treasurer, stated that he and the government were sorry for the way Ms Rau had been treated. The then Minister for Immigration, Amanda Vanstone, appointed retired senior police officer, Mick Palmer, to investigate how an Australian permanent resident who was listed as a missing person could have been detained as an unlawful noncitizen for over 10 months.

The Palmer Report was released on 14 July 2005.44 It found that the support structures within the Department of Immigration were ‘weak and ineffective’45 and that staff at the detention facili- ties lacked empowerment and focused excessively on process. The report labelled the Department of Immigration culture as ‘siloed’46 because of its hierarchical and segmented nature and its divisional structure.

The Department of Immigration has made several changes to its operations following the Palmer Report. On 19 September 2005, the then Immigration Minister, Senator Amanda Vanstone announced that a mental health team would be ‘proactively screening detainees to identify any mental health concerns’ at Baxter Detention Centre.47 On 6 October 2005, she announced that $230 million would be provided over five years for a ‘broad range of initiatives to improve training, provide better health and wellbeing to immigra- tion detainees, much better records management, decision quality assurance, and a much stronger focus on clients’.48 This has included an independ- ent review of the system for identifying and managing detainees who are at risk of suicide or self-harm. The Department of Immigration has also agreed to the case management of all persons held in detention for more than 14 days or those deemed vulnerable on account of age or health status. The management of DIAC has also been restructured, with significant staffing changes. The former Secretary of the Department has now become Australian Ambassador to Indonesia and

the former Minister for Immigration, Amanda Vanstone has become the Ambassador to Italy.

Despite these changes, the question remains whether immigration detention can in fact ever be suitable for the provision of mental health care. Unfortunately, the changes are too late for detainees who have already been adversely affected by their time in an immigration detention facility. Whether the changes will assist in providing the highest attainable standard of physical and mental health to immigration detainees in the future remains to be seen.

Tort Law Reform Detainees who have been harmed in immigration detention may find it difficult to establish liability for psychiatric harm. There is still a great deal of uncertainty concerning psychiatric injury in negli- gence claims, perhaps because mental disorders are more difficult to detect than physical injuries.49 Recent changes to tort law under Civil Liability Acts may have further limited the scope of claims for psychiatric injury caused by detention.

Much of the recent changes in tort law resulted from a 2001–2002 Federal government enquiry through the Commonwealth Treasury Department. The Treasury convened a panel to address a perceived insurance crisis. The panel was chaired by the Hon David Ipp and was given the task of finding a method for reform of the common law ‘with the objective of limiting liabil- ity and quantum of damages arising from personal injury and death’.50

The panel made many recommendations with regards to mental harm including a re-confirma- tion of the common law position that a plaintiff cannot be compensated unless he or she suffers from a recognised psychiatric injury.51 The panel also recommended that liability only apply if it is foreseeable that a person of normal fortitude might, in the circumstances of the plaintiff, suffer a recognised psychiatric illness.52 Relevant factors to foreseeability outlined by the panel include whether there was sudden shock, whether there was a pre-existing relationship between the plain- tiff and the defendant and the nature of the relationship between a defendant and any person who may have been killed, injured or put in peril.53 Prior to the recommendations, the requirement that a psychiatric injury should be foreseeable for someone of normal fortitude had been abandoned by the common law.54 The recommendations did,

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however, reflect the common law’s reluctance to require sudden shock as a prerequisite to liability for psychiatric injury.

All states and territories except for Queensland and the Northern Territory have implemented these recommendations (Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Part 3; Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), ss74 and 75; Civil Liability Act 2002 (WA) Part 1B, s5S; Law Reform (Ipp Recommendations) Bill 2004 (SA) Part 6, ss33 and 53; Civil Liability Act 2002 (Tas) Part 8, ss33 and 34 ; Civil Law (Wrongs) Act (ACT), s34). Therefore, in addition to showing inadequate care, detainees who bring actions for negligently caused psychiatric harm without physical injury due to insufficient mental health services and psychiatric care, will now have to prove on the balance of probabilities that they are suffering from a recognised psychiatric illness. They must also show that the illness was caused by their detention and the failure of the Commonwealth and the centre operators to provide adequate care. Finally they must estab- lish that it was foreseeable that the inadequate mental health services and psychiatric care would have led a person of normal fortitude to suffer a recognised psychiatric illness.

Conclusion Justice Finn’s decision in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs sets out a framework for the Commonwealth’s duty of care to provide immigra- tion detainees access to primary health care, includ- ing mental health services. The settlement in the Shayan Badraie case has demonstrated that detainees may be compensated for inadequate mental health services and psychiatric care. The cases of Mr Yousefi and Cornelia Rau will be closely watched and will undoubtedly have further reper- cussions for the scope and type of negligence claims in the future.

Endnotes 1 D Silove & Z Steel, (eds) The Mental Health and

Well-Being of On-Shore Asylum Seekers in Australia, Sydney: The University of New South Wales, 1998.

2 S Mares, L Newman & M Dudley, ‘Seeking Refuge, Losing Hope: Parents and Children in

Immigration Detention’ (2002) 10 Australasian Psychiatry 91.

3 D Silove & Z Steel, ‘The Mental Health Implications of Detaining Asylum Seekers’ (2001) 175 Medical Journal of Australia 596, at p 596.

4 Catholic Commission for Justice, Development and Peace, Damaging Kids: Children in Department of Immigration Multicultural and Indigenous Affairs’ Immigration Detention Centres, Melbourne: Catholic Commission for Justice, Development and Peace, 2002.

5 Centre for Population Mental Health Research at the University of New South Wales, Temporary Protection Visas compromise refugees’ health: New research, 2004. Retrieved 28 May, 2007 from http://www.unsw.edu.au/news/pad/articles/2004/j an/TPV_Health.html

6 J Topsfield, ‘Hundreds in Detention Attempt Self- harm’. The Age (Melbourne) 2005; retrieved 28 May, 2007 from http://www.theage.com.au / n e w s / n a t i o n a l / h u n d r e d s - o f - d e t a i n e e s - t r y - selfharm/2005/09/18/1126981948047. html

7 A McEntee, ‘The Failure of Domestic and International Mechanisms to Redress the Harmful Effects of Australian Immigration Detention’ (2003) 12(1) Pacific Rim Law and Policy Journal, at p 276.

8 I Freckelton, ‘Editorial: Madness, Migration and Misfortune: The Challenge of the Bleak Tale of Cornelia Rau’ (2005) 12(1) Psychiatry, Psychology and Law 1 at p 12.

9 (2004) 219 CLR 486. 10 [2005] FCA 549 (5 May 2005). 11 Department of Immigration and Citizenship,

Immigration Detention Standards, 2005; retrieved 28 May, 2007 from http://www.immi. gov.au/detention/standards_index.htm

12 Department of Immigration and Citizenship, Principles Underlying Care and Security, 2005; retrieved 28 May, 2007 from http://www.immi. gov.au/managing-australias-borders/detention/ standards_index.htm

13 Department of Immigration and Citizenship, Migration Series Instruction MSI-234: General Detention Procedures, 1999. See, e.g., Human Rights and Equal Opportunity Commission, Immigration Detention Guidelines, 2000; retrieved 28 May, 2007 from www.hreoc.gov.au/pdf/ human_rights/asylum_seekers/idc_guidelines.pdf

14 Human Rights and Equal Opportunity Commission, A Last Resort: The National Inquiry into Children in Immigration Detention, 2004 at p 15; retrieved 28 May, 2007 from http://www.humanrights.gv.au/human_rights/chil dren_detention_report/index.html

15 [2005] FCA 549.

270

16 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549 (5 May 2005) at [84].

17 Ibid, at [132]. 18 Ildd. 19 Ibid, at [257]. 20 Ibid, at [259]. 21 M Palmer, Inquiry into the Cornelia Rau Matter (6

July 2005) Finding 24, Canberra: Commonwealth of Australia, 2005.

22 N1202/01A v Minister for Immigration & Multicultural Affairs (2002) 68 ALD 21.

23 Shayan Badraie by his Tutor Mohammad Badraie v The Commonwealth of Australia (by the Department of Immigration and Multicultural and Indigenous Affairs) and 2 ors, NSWSC Common Law Division, (29 August 2005) at [24] per Johnson J.

24 Ibid, at [33]. 25 Human Rights and Equal Opportunity

Commission, Report of Inquiry into a Complaint by Mr Mohammed Badraie on Behalf of his Son Shayan Regarding the Acts or Practices of the Commonwealth of Australia (Department of Immigration, Multicultural and Indigenous Affairs), Sydney: Human Rights and Equal Opportunity Commission, 2002.

26 Convention on the Rights of the Child, opened for signature 20 November 1989, 1588 UNTS 530 (entered into force 16 January 1991).

27 Human Rights and Equal Opportunity Commission, above n 14.

28 A Vanstone & P Ruddock, HREOC Inquiry into Children in Immigration Report 2004; retrieved 28 May, 2007 from http://www.minister.immi. gov.au/media_releases/media04/v04068.htm

29 AVanstone, All families with Children Out of Detention, 2005; retrieved 28 May, 2007 from http://www.minister.immi.gov.au/media_releases/ media05/v05098.htm

30 Shayan Badraie by his Tutor Mohammad Badraie v The Commonwealth of Australia (by the Department of Immigration and Multicultural and Indigenous Affairs) and 2 ors, NSWSC Common Law Division, (29 August 2005) at [28] per Johnson J.

31 Ibid, at [101]. 32 Ibid, at [104]. 33 M Goudkamp, quoted in L Millner, ‘Refugee

advocates expect more legal action’ PM, ABC Radio, 2 March, 2006; transcript retrieved 28 May, 2007 from http://www.abc.net.au/pm/content /2006/s1583660.htm

34 Blackburn Cashman, Refugee Sues Federal Government and Detention Centre Operators Over Treatment in Detention, 2005; retrieved 28 May,

2007 from http://www.mauriceblackburncash- man.com.au/news/press_releases/refugee.asp

35 A Horin, ‘Broken Man Sues Over Years Behind wire’ Sydney Morning Herald 13 August, 2005; retrieved 28 May, 2007 from http://www.smh. com.au/news/national/broken-man-sues-over- years-behind-wire/2005/08/12/1123353505726. html

36 Blackburn Cashman, above n 34. 37 M Crock, B Saul, & A Dastyari, Future Seekers II,

Sydney: Federation Press, 2006. 38 See, e.g. Z Steel, S Momartin, C Bateman, A

Hafshejani, D Silove, N Everson, et al., ‘Psychiatric Status of Aslyum-Seeker Families Held for a Protracted Period in a Remote Detention Centre in Australia’ (2004) 28(6) Australian and New Zealand Journal of Public Health at 527. A Sultan & K O’Sullivan, ‘Psychological Disturbances in Asylum-Seekers Held in Long Term Detention: A Participant Observer Account’ (2001) 175 Medical Journal of Australia at 593.

39 See, P Flood, Report of Inquiry into Immigration Detention Procedures (presented to Parliament on 27 February, 2001); Joint Standing Committee on Foreign Affairs, Visits to Detention Centres, Canberra: Commonwealth of Australia, 2001; Human Rights and Equal Opportunity Commission above n 25; Human Rights Commissioner, Report on Visits to Immigration Detention Facilities by the Human Rights Commissioner, 2002; Catholic Commission for Justice, Development and Peace, above n 4; Joint Standing Committee on Migration, Not the Hilton: Immigration Detention Centres: Inspection Report, Canberra: Commonwealth of Australia, 2000; Joint Standing Committee on Foreign Affairs, Report No 113: Statement to the Parliament on the Joint Standing Committee on Foreign Affairs, Defence and Trade, Human Rights Sub-Committees Recent Activities concerning the conditions within Immigration Centres and the treatment of Detainees, Canberra: Commonwealth of Australia, 2003; Human Rights and Equal Opportunity Commission, above n 14.

40 M Crock, B Saul, & A Dastyari, above n 37. 41 M Palmer, above n 21, at p 164. 42 I Freckelton, above n 8. 43 A Jackson, ‘Mystery woman may be very ill’ The

Age (Melbourne), 28 May, 2007. 44 M Palmer above n 21. 45 Ibid, at p 193. 46 Ildd. 47 A Vanstone, Minister Announces Action Plan for

Baxter, 2005; retrieved 28 May 2007 from

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http://www.minister.immi.gov.au/media_releases/ media05/v05114.htm

48 A Vanstone, Palmer Implementation Plan and Comrie Report, 2005; retrieved 28 May, 2007 from h t t p : / / w w w . m i n i s t e r . i m m . g o v . a u / m e d i a 0 5 /v05119.htm

49 Hatton v Sutherland [2002] 2 All ER 1 at 4 per Hale LJ.

50 D Ipp, Review of the Law of Negligence Final Report. Canberra: Commonwealth of Australia, 2001 p 26.

51 See, ibid, p 136; Jaensch v Coffey (1984) 155 CLR 549 at 549.

52 Ipp, above n 50, at p 137. 53 Ibid, p 138. 54 Tame v New South Wales; Annetts v Australian

Stations Pty Ltd (2002) 211 CLR 317 at 449. !