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PASSED through both Houses of Parliament with the supine acquiescence of the Labor Opposition, the federal government’s Border Force Act 2015 is a law no doctor can ethically obey.
Its provisions represent a disturbing development in an already harsh system that incarcerates children, without recourse, for many years.
Ethical demands may be alien to Australia’s politicians but for Australian doctors, they are mandatory. Those enunciated in the Declaration of Geneva (Physician’s Oath) are reinforced by the specialist medical colleges and the Medical Board of Australia which, among other provisions, requires doctors to:
3.6.4: (Be) alert to children and young people who may be at risk, and notifying appropriate authorities, as required by law.
8.11 … recognise and resolve this conflict in the best interests of the patient (my emphasis).
This is additional to legislation in every state that requires mandatory reporting of a reasonable suspicion of child abuse.
Yet, under the provisions of the new Act, doctors working in asylum seeker detention facilities face 2-year jail terms if they reveal details of any abuse or substandard care they have witnessed.
This would include the case of an 11-year-old boy, the subject of this x-ray, who was denied surgery by the Immigration Department, despite unanimous opinions from several specialists, that expedited surgery is necessary. Last week, after an unconscionable delay that adversely affects the prognosis, the Immigration Department said the boy has finally had corrective surgery.
Whoever provided the x-ray and the information regarding refusal of treatment broke the provisions of the Act. Yet it was only after they did so that there was any suggestion that specialist treatment might be provided by the medical contractor International Health and Medical Services, or the department it serves.
Former and current medical staff, teachers and social workers who signed and released an open letter in April that referred to sexual abuse occurring at the Nauru detention centre could now be charged and prosecuted under the Act.
Arguably then, the Act encourages criminal behavior by providing protection for abusers by not reporting their alleged crimes. If it was the government’s intention to protect child abusers and the politicians responsible for them, this Act could not have been framed better.
Doctors working at detention facilities will be subject to a secrecy oath that requires them to seek permission from the Australian Border Force Commissioner to discuss any detail of their work, including incidents of child abuse, in direct contravention of registration requirements, ethical constraints and state child protection legislation.
A report made to the alleged perpetrators’ employers is not a satisfactory replacement for the ethical standards required of doctors, or for the protections offered to children by reporting to independent outside organisations. Condemnation of the Act is universal in the medical community, including overseas.
At its national conference last month, the AMA unanimously passed a motion calling for the government to amend the Act to exempt from prosecution medical practitioners who disclose failures in health care delivery in immigration detention centres.
Until this happens, no doctor should accept any work with the Immigration Department, especially in its detention facilities, if you are required to agree to the provisions of this abhorrent Act.
Dr Michael Gliksman is a past vice-president of the AMA (NSW) and is a committee member of Doctors for Refugees. Follow him on Twitter @MGliksmanMDPhD and at www.afairsoceity.com.au
The MJA this week includes two editorials on children in detention — one by Gillian Triggs, of the Australian Human Rights Commission, and the second from the Royal Australasian College of Physicians
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It would be great if the AMA could organise a legal opinion on what is and is not allowed under the Act. For example:
It may not be as bad as it is portrayed, but if clear guidance is not given the fear and confusion may still result in abuse not being reported.
Hello, I’ve had a look through the legislation, its pretty complicated, and I am not used to reading such legalistic material, but I not sure what section of the act is relevant to this concern. Is it section 41? The reason I ask, is that in Section 48 (disclosure to reduce threat to life or health) may allow an “entrusted” person such dislosure if it is necessary to prevent or lessen a serious threat to life or health, and the disclosure is for the purpose of lessening that threat. Would that not cover the concerns you have in regard to reporting abuse, poor treatment or failure to care? Thank you.
@Concerned – Exactly.
@Greg the physician – I find it hard to believe that you are a doctor. If the AMA and RACP you feel are alienating you then maybe you should reconsider your position. This is not about immigration – it is about patient care.
I agree with the author – if you call yourself a doctor, and swore the Hippocratic oath, your ethical duty is to the patient in front of you, not the immigration official looking over your shoulder. Anyone acting otherwise has stopped being a doctor and has become an over-qualified detention officer.
Unfortunately it seems that some of the media has gotten misinformation to even the most educated of our society.
There is nothing illegal about asylum seekers.
“The UN Refugee Convention recognises that refugees have a right to enter a country for the purposes of seeking asylum, regardless of how they arrive or whether they hold valid travel or identity document.” – http://www.sbs.com.au/goback/about/factsheets/4/are-asylum-seekers-who-arrive-by-boat-illegal-immigrants for more information.
What circular arguments! The federal government’s policies notwithstanding, the discovery of practices and systematic processes that result in harm to refugees and asylum seekers (or any other sub-population for that matter), should without question be reported. Whether the government’s “ban the boats” has had positive effects or whether there are “more important ethical issues” is not relevant here. A physician’s responsibility is to protect from harm those under their care, even if it means reporting about prevailing practices or conditions and even if it means speaking out against the current regime. To threaten imprisonment to any physician for following this tenet implies that the government is concerned about being “caught out”. What other explanation is there?
The whole issue of illegal arrivals raises numerous issues but is being used by the Greens and left wing members of various organisations for their own agendas.
There are many considerably more important ethical issues to consider within Australia.
Why single out detention centres for illegal refugees in this article? What about protection for health professionals who raise concerns regarding the care of children in, say, juvenile detention after being convicted of criminal offences? What about the efforts of Qld Health to silence internal criticism of problems in the new Lady Cilento Children’s Hospital in Brisbane? Clearly Gliksman’s article is part of the campaign being undertaken by medical bodies such as the AMA and RACP against detention per se of illegal immigrants. They overlook the key fact that the actions of the current Federal Government have prevented hundreds or thousands of deaths at sea from drowning. If children who enter Australia illegally are not placed in detention, many more will follow. This has been the experience in the USA since the Obama administration stoppod detaining children who illegally crossed the Mexican border into the USA, resulting in thousands more unaccompanied children also making the crossing. All the children (and adults) in detention had the options of returning to their home country, or going into an official refugee camp in one of the countries through which they transitted, if the conditions in Australian-run detention centres are not to their liking.The AMA and RACP are rapidly alienating a substantial proportion of their membership by their obvious left-wing bias on this issue. Gliksman has one point correct – if you disagree with the conditions of employment, don’t accept work for the Immigration Department.
I saw advertisements in the SMH at the weekend for a Chief Medical Officer for the Department of Immigration and Border Protection. Will Dr Mengele put up his hand?
Thanks for this article, Michael. This new law is disgraceful and as you say, it completely contravenes a doctor’s ethical obligations to act as a pateint advocate.