Under the Border Force Act 2015 it is Unlawful to Reveal this X-ray: A Law that Australia’s Doctors Cannot Ethically Obey.
Why would I, a senior medical specialist, past AMA(NSW) State Vice-President, Board Member of Doctors for Refugees, a registered psychologist who also holds a law degree – part of the status quo, Mr Establishment – advocate this? If my parents’ experience as Holocaust survivors and that of the six million who were not has any lasting meaning it is this: laws that encourage evil must be opposed. Make no mistake, the Australian Border Force Act 2015 (the Act) (http://www5.austlii.edu.au/au/legis/cth/num_act/caolabfa2015597/) is evil in intent and in its likely, foreseeable effect.
In the post-war period, institutions and mechanisms that protect and enhance freedoms and ethics have flourished. For doctors one of the most important has been the Declaration of Geneva, the touchstone of modern medical ethics.
The Declaration of Geneva (Physician’s Oath) was adopted by the General Assembly of the World Medical Association in Geneva in 1948 (revised 2005 & 2006. It is a declaration of a doctor’s dedication to the humanitarian goals of medicine, a declaration that was especially important in view of the medical crimes that had been committed in Nazi Germany.
The most relevant points (to the current matter) are:
At the time of being admitted as a member of the medical profession:
- I solemnly pledge to consecrate my life to the service of humanity
- I will practice my profession with conscience and dignity.
- The health of my patient will be my first consideration.
- I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient.
- I will maintain the utmost respect for human life.
- I will not use my medical knowledge to violate human rights and civil liberties, even under threat.
Such ethical demands are alien to politicians but for Australian doctors, they are mandatory. They are reinforced by those enunciated by the specialist medical colleges and the Australian Health Professionals Regulation Authority (AHPRA) (http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx)
Among other provisions, the latter requires doctors to:
1.4: …protect and promote the health of individuals and the community.
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: Conflicts of interest: A conflict of interest in medical practice arises when a doctor, entrusted with acting in the interests of a patient, also has financial, professional or personal interests, or relationships with third parties, which may affect their care of the patient. When these interests compromise, or might reasonably be perceived by an independent observer to compromise, the doctor’s primary duty to the patient, doctors must 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, a requirement this Commonwealth Act undermines.
In 2005 I proposed a motion that was accepted by majority vote of delegates at the Federal Conference the Australian Medical Association. This required us to:
- Recognise that the indefinite detention of children is child abuse;
- Recognise that it is unethical to provide psychiatric services in a setting where the provider is under the direction, influence or control of the abuser;
- Release immediately all children detained in immigration detention facilities;
- Release immediately all immigration detainees suffering mental disorders into appropriate psychiatric facilities.
The medical profession’s ethical requirements in relation to children (and adults) in detention cannot be stated more clearly, yet under the Act (Part 6), it is a criminal offence, punishable by imprisonment of up to two years, for any person working directly or indirectly for the Department of Immigration and Border Protection to reveal to the media or any other person or organisation anything that happens in detention centres like Nauru and Manus Island.
Potentially then, the Act encourages criminal behavior by providing protection for abusers in the form of secrecy for their alleged crimes.
A spokeswoman for the Immigration Department said doctors may (my emphasis) be exempt from prosecution if their reporting was in the public interest but that: “Depending on the contractual arrangements existing between a healthcare worker and the [Department] … that healthcare worker may fall within the definition of an ‘entrusted person’, to whom Part 6 of the Act will apply.
Where a doctor or other healthcare worker is considered an entrusted person under the Act, there are appropriate mechanisms for reporting misconduct or maladministration.
For example, the Public Interest Disclosure Act 2013 provides protections for officials who wish to report maladministration through the PID Act. The ABF Act does not override the protections of the PID Act.” http://www.australiandoctor.com.au/News/Doctors-face-jail-for-reporting-asylum-seeker-abuse
This, as the Department’s PR flak must know, is rubbish. There is no way of knowing which Act will take precedence, until decided by the prosecution of a doctor before the Courts. Nor is a report made to the alleged perpetrator’s employer a satisfactory replacement for the ethical standards required of doctors, nor for the protections offered to children by reporting to independent outside organisations.
Former and current medical staff, teachers and social workers who signed and released a letter last month (http://www.theguardian.com/world/2015/apr/07/nauru-staff-call-for-closure-of-asylum-centre-and-royal-commission-into-abuse) that referred to abuse occurring at Nauru could now be charged and prosecuted under the Act, as the ‘responsible’ Ministers Peter Dutton & George Brandis are undoubtedly aware and arguably intend. The ethical and moral bankruptcy demonstrated is truly breathtaking.
Further, by blocking any transparency of their quality assurance procedures, the standard of care is unregulated until it becomes a crime or a death, as it did with Reza Barati.
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 details of their work, in direct contravention to registration requirements, ethical constraints and State child protection legislation.
No doctor should accept any work within the Immigration Department and especially in its detention facilities, if required to obey the provisions of this repellent Act. The AMA should declare its unequivocal support for any doctor in the employ of this Department who chooses to follow our ethical obligations in defiance of this offensive law.