Responding to mandatory immigration detention: lessons for the health care community

After 25 years of advocacy, what can the health care community learn from recent reforms of Australian immigration detention?

In February 2019, the Australian Government announced that it had removed all refugee and asylum seeker children from offshore detention in Nauru.1 Soon after, the Australian Parliament passed the Migration Amendment (Urgent Medical Treatment) Bill 2018.2 This legislation strengthens the position of doctors to recommend a transfer of an ill person to Australia for treatment from offshore detention centres in Manus Island (Papua New Guinea) and Nauru. While this has been welcome news, these developments are tempered by the fact that the government is seeking to repeal this legislation and has maintained an increasingly combative stance on these issues.

For over a quarter of a century, immigration detention has been one of the most contentious contemporary political issues in Australia. Onshore detention was introduced in 1992. Offshore processing on Manus Island and Nauru was introduced in 2001 with bipartisan political support. Offshore detention ceased in 2007 but was reinstated in 2012, again with bipartisan support.3 These policies have resulted in the detention of tens of thousands of men, women and children both onshore and offshore. Conditions within detention centres have been unsafe and violent. Multiple inquiries have provided details on widespread physical and sexual abuse, violence, riots, self‐harm and suicidal behaviour.4 However, despite these facts and widespread criticism, the Australian Government has persevered with offshore processing, explicitly as a deterrent to further asylum seeker boat arrivals.5 The harm created and perpetuated by these policies is deliberate, and arguably fulfils the United Nations definition of torture.6

The Australian health care community has been closely engaged with these policies, calling for their reform and working within detention centres to provide health care. While there have been a number of more cooperative efforts made by the health care community to improve the delivery of health care in detention centres, such as the formation of the Immigration Health Advisory Group (IHAG), these have more generally been resisted, short‐lived or disbanded by the government, as was the case with IHAG.7 More generally, the Australian Government has not been supportive of the health care community's calls for broader systemic reform and at times has been combative towards those seeking change. This has led many clinicians to pursue unconventional action, outside of their more traditional clinical roles. Clinicians have played a central role in bringing to light the conditions in which people are detained through both testimonies to inquiries and whistleblowing.8 Professional bodies have long called for reform.9 Clinicians have lobbied, marched and protested against these policies.10,11 Almost 6000 Australian doctors signed an open letter calling for the evacuation of all children from detention on Nauru before they were eventually evacuated.12 Action has also been more adversarial. After the introduction of the Australian Border Force Act 2015,13 many clinicians saw civil disobedience as their only option, publicly challenging the government to prosecute, while continuing to speak out.14 Clinicians have also defied the government in refusing to discharge children from hospital if they will be returned to Nauru.15 Others have taken action to address the well documented failings of health care offshore by reviewing medical records and advocating for treatment. In many cases, clinicians have acted in partnership with the media to amplify their message.

As a whole and over a number of years, this action has had a substantial impact on broader protest and in shaping public discourse. While it is difficult to pinpoint its precise contribution to recent shifts in policy, it is no understatement to say that the health care community has played an influential role in this debate. However, we cannot assume we are at the end of the road or that this recent progress will be maintained. While this article was being written, the Nauruan government passed legislation threatening the Migration Amendment (Urgent Medical Treatment) Bill,2 banning medical transfers based on telehealth assessments.16 The Australian Government is also seeking to repeal the Bill2 and remains resistant to approving medical transfers. Many people also remain in detention both offshore and onshore. It is worth reflecting on how we have reached this point. If we are to take some lessons from progress thus far, what should they be?

Research

If we can do nothing else, we should continue to speak of the harms of these policies, and research provides a powerful platform to do this. There is an existing body of evidence that has detailed the harms of detention4,17,18 and also outlined the ethical and practical issues faced in the delivery of health care.19,20 There are other opportunities for further investigation, particularly when exploring how the health care community should respond to these policies. Beyond clinical ethics, research and reflection are needed to assess how the health care community should position itself in the face of power and politics. There is fortunately a growing literature that can inform us on this.21 In addition, research will also be important in any future legal proceedings, providing evidence of the harm these policies have created and perpetuated.

Working with lawyers

Partnerships with lawyers and other legal professionals have proven to be essential. Before the Migration Amendment (Urgent Medical Treatment) Bill2 came into force and children were removed from Nauru, every transfer to Australia for treatment was done by court order.22 Ongoing collaboration between clinicians and lawyers should be nurtured to allow future legal action, advocacy and research. This will require cooperation, dialogue and a mutual respect for the expertise of each profession.

Working with the media

The media has also played an important role in uncovering the secrecy the government has tried to place around detention centres and conditions on Nauru and Manus Island. Much of what we know today about immigration detention has come from clinicians speaking out about their experiences working in detention centres. Others have turned to the media to highlight specific cases of substandard care. While care is needed in obtaining consent, there are a number of examples where the media has been effectively used to prompt the government to take action.23

Advocacy and systemic reform

We should continue to advocate for our patients and, more importantly, for systemic reform24 in line with the international human rights commitments the Australian Government has made. While advocacy within the constraints of current policy is necessary and may result in small immediate gains, human rights will continue to be violated and health will suffer as a result. Arguably, the biggest achievements in relation to the health and wellbeing of people detained offshore — evacuating children from detention and the Migration Amendment (Urgent Medical Treatment) Bill2 — have not come about though care as usual, but through years of political pressure and advocacy.

Civil disobedience and activism

Advocating for systemic reform is often not straightforward. The Australian Government's response to evidence and calls for reform has created a unique challenge for the health care community. What we have been trained to do — that is, advocate and act on evidence — has been rendered largely ineffective.25 This has led many clinicians to take increasingly adversarial action, such as whistleblowing, protesting and civil disobedience. There is substantial scholarship in this area which highlights the effectiveness of non‐violent direct action;21,26 we should not shy away from it given the circumstances.

Conclusion

We have discussed only a few of the lessons that can be taken away from the health care community's response to mandatory immigration detention. Equally important is the broader conversation related to the role of the health care community in social and political change. There will be disagreement, not just with our statements, but more generally. How can we be most effective in pursuing social and political change? What forms of action might be acceptable in this pursuit? Should we simply stick to clinical work? We can learn from policies, such as mandatory immigration detention, and we can also learn from history to help answer these questions. However, one point is clear: this will not be the last time the health care community finds itself advocating for a marginalised group of people. It is also, unfortunately, not the last time we will be faced with the question of what to do in response to major human rights abuses.

Update

This article was written shortly after the Migration Amendment (Urgent Medical Treatment) Bill was passed, with some optimism that Australia was starting to demand better for individuals seeking asylum. While developments so far in 2019 may temper some of the optimism, we do not feel these shifts in policy detract from the major points we have outlined above. We hope those in the health care community who are concerned about these issues consider carefully what they can do to contribute to change and ensure Australia honours its human rights commitments.