Providing Mental Health Services and Psychiatric Care to Immigration Detainees: What Tort Law Requires
McSherry, Bernadette, Dastyari, Azadeh, Psychiatry, Psychology and Law
There is increasing evidence that the provision of mental health services is inadequate for immigration detainees. In S v Secretary, Department of Immigration end Multicultural and Indigenous Affairs  FCA 549, Justice Paul Finn 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 depression (1) 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) 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 & Ors (9) that if detention centres 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 Affairs (10) 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 jurisdictions 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 Ran. The article will explore how recent tort law reform may have an impact on the liability of the Commonwealth government. …