Brown v Director-General of the Justice and Community
[2021] ACTSC 320
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Director-General of the Justice and Community Safety Directorate |
Citation: | [2021] ACTSC 320 |
Hearing Date(s): | 15-16 November 2021 |
DecisionDate: | 17 December 2021 |
Before: | Crowe AJ |
Decision: | [274] |
Catchwords: . | STATUTORY INTERPRETATION – HUMAN RIGHTS – application for declaratory relief – whether interpretation of sections 53, 67, and 68 of the Corrections Management Act 2007 (ACT) are compatible with sections 19(1) and 27(1) and (2) of the Human Rights Act 2004 (ACT) – whether Defendant breached Plaintiff’s human rights per section 40B of the Human Rights Act 2004 (ACT) – whether the Corrections Management Act 2007 (ACT) required the Defendant to provide Aboriginal Health Assessment to the Plaintiff |
Legislation Cited: | Corrections Act 1986 (Vic) s 47 Corrections Management Act 2007 (ACT) ss 9, 12, 21, 46, 53, 54, 55, 64, 66, 67, 68 Law Officer (Model Litigant) Guidelines 2010 (No 1) (ACT) |
Cases Cited: | Castles v Secretary, Department of Justice [2010] VSC 310; 28 VR 141 Certain Children v Minister for Families and Children (No 2) [2017] VSC 251; 52 VR 441 |
Texts Cited: | Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res 43/173, Un Doc A/RES/43/173 (1988, adopted 9 December 1988), Principle 12 Corrections Management (Access to Health Care) Policy 2019 |
Parties: | Keira Brown (Plaintiff) Director-General of the Justice and Community Safety Directorate (Defendant) |
Representation: | Counsel Mr T Jeffrie (Plaintiff) Ms J Dempster (Defendant) |
| Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number(s): | SC 266 of 2021 |
Crowe AJ
Introduction
Abbreviations and Acronyms
Having regard to the way in which various entities, public officials and organisations within Australian Capital Territory (ACT) Government departments are described in the relevant documents, and have been referred to by the parties, it is useful to provide a key to the references to those persons and organisations in these reasons for decision. I also propose to refer to the relevant legislation, and some key concepts and documents in an abbreviated fashion. The references are as follows:
ACTCS – ACT Corrective Services. This is the part of JACS which is responsible for the management of the AMC.
AHA – Aboriginal Health Assessment. This is a health assessment reflected by a specific item in the Medicare Benefits Schedule (MBS item 715).
AMC - Alexander Maconochie Centre is a correctional centre in the ACT.
ATSI – Aboriginal and Torres Strait Islander.
CHS – Canberra Health Services Directorate. This is the department of the ACT Government responsible for health matters in the ACT.
CMA – The Corrections Management Act 2007 (ACT). This Act governs the operation of the AMC.
CSAA - Crimes (Sentence Administration) Act 2005 (ACT). This Act set out the circumstances under which a person is placed in the custody of the defendant.
DS – Defendant’s Submissions. This refers to the written submissions dated 3 November 2021.
FMHS - Forensic Mental Health Service. This is a part of MHJHADS. Amongst other functions it provides mental health services to detainees in AMC.
GP – General Practitioner
HRA – The Human Rights Act 2004 (ACT).
JACS – The Justice and Community Safety Directorate. This is the department of the ACT Government which has a range of responsibilities corresponding to its name. These include the responsibility for the management of the AMC pursuant to the provisions of the CMA.
JH – Justice Health. This is a program area within a division of the CHS. It is the primary provider of health services within the AMC.
MBS – Medicare Benefits Schedule.
MHJHADS – Mental Health, Justice Health and Alcohol and Drug Services. This is a division of the CHS. JH is a part of this division.
MOU – Memorandum of Understanding. This refers to a document entered into between the ACT and Winnunga (see below) on 21 December 2018. The MOU complemented an agreement between these parties in 2017 whereby Winnunga would provide coordinated health care services to ATSI detainees in the AMC. Its stated purpose was to ensure that ATSI detainees receive health care at AMC in a holistic and culturally safe way.
POS – the Plaintiff’s Outline of Submissions. This refers to the plaintiff’s written outline dated 22 October 2021.
PSR - the Plaintiff’s Submissions in Reply. This refers to the reply submissions dated 5 November 2021.
RCAGP - Royal Australian College of GPs.
Winnunga – Winnunga Nimmityjah Aboriginal Health and Community Services Ltd. Winnunga is a community organisation which provides health and other services to ATSI people in the ACT and region.
Background
The plaintiff is an Aboriginal woman of the Wiradjuri people who is now aged 21 years. She has lived in the ACT region all of her life. She has been a client of the health service provided by Winnunga since she was 4 years old. She has undergone several AHAs with Winnunga over the years.
The defendant is the public official who is given the primary functions of managing and operating corrective services under the CMA. This includes the operation of the AMC.
Between 10 September 2019 and 28 July 2020, the plaintiff was detained at the AMC (there was some uncertainty in the evidence as to when the plaintiff was released – I have relied on the Winnunga clinical records). She underwent a further period of detention between 8 January 2021 and 26 May 2021.
During each period of detention, the plaintiff requested the transfer of her health care from JH to Winnunga. In each case, this transfer was effected, albeit after some delay.
No AHA was carried out while the plaintiff was detained. The plaintiff had an AHA at the Winnunga clinic in the community in September 2013, and another in June 2014. She also had one on 30 July 2020, just after her release from the AMC after the first detention.
The plaintiff’s claim
The plaintiff claims that the obligations placed on the defendant by the CMA, interpreted by reference to sections 19(1) and 27(1) and (2) of the HRA required that the plaintiff be offered an AHA during each period she was detained at the AMC. In failing to ensure that the plaintiff was offered an AHA, the defendant acted unlawfully pursuant to s 40B(1) of the HRA by failing to act in a way which was compatible with a human right and/or in deciding not to ensure that the plaintiff was offered an AHA, failing to give proper consideration to a human right in making that decision.
The defendant’s response
The defendant argues that the relevant sections of the CMA, properly interpreted, do not impose the obligation for which the plaintiff contends. It is submitted that the defendant has complied with the obligations imposed on him by those sections, and that as a consequence no question arises under s 40B of the HRA. If the Court should find otherwise, the defendant further submits that in circumstances where the plaintiff did not request an AHA, he was not in breach of either ss 19(1) or 27(1) and (2) in the ways specified in s 40B(1). The defendant did not deny, or decide to deny, the plaintiff access to an AHA. In any event, the defendant complied with ss 19(1) and 27(1) and (2) by taking the steps adopted in 2017-18 to give ATSI detainees access to the health services provided by Winnunga.
The pleading of the plaintiff’s claim
The plaintiff filed her Originating Application on 2 July 2021. That application was the subject of a number of amendments both before and during the hearing. The final form of the application is the Second Further Amended Originating Application. The plaintiff’s claim for relief in that document is:
1.A declaration pursuant to Section 40C of the Human Rights Act 2004 that the Defendant has breached the Plaintiff’s human rights under Sections 19(1) and 27(2) of the Human Rights Act 2004.
2.A declaration that the Defendant breached s 53 of the Corrections Management Act 2007 by failing to ensure an Aboriginal Health Assessment was carried out on the plaintiff during her two periods of detention.
3.A declaration that the Defendant breached ss 67 and 68 of the Corrections Management Act 2007 by failing to ensure an Aboriginal Health Assessment was carried out on the Plaintiff as part of the initial health assessment at the commencement of her two periods of detentions.
4. The Defendant pay the Plaintiff’s costs of and incidental to this Originating Application.
…
The grounds for the orders sought in the final form of the application set out a summary of the facts and then plead the claim as follows:
Corrections Management Legislation, Policies and Procedures
18.The Plaintiff was, during the first and second detention required to be held in detention by the Defendant pursuant to the CMA
19.The Plaintiff was, during the first and second detention, a detainee pursuant to Section 6 of the CMA
20.At all material times during the first and second detention, the following provisions of the CMA and policies applied to the Plaintiff:
(a) Sections 9(a), 9(e), 12(1)(j), 53, 67, 68 of the CMA;
(b) Corrections Management (Human Rights) Policy 2010;
(c) Alexander Machonochie Centre Detainee Handbook
(d) Corrections Management (Human Rights Principles for Act Correctional Centres) Direction 2019; and
(e) Corrections Management (Access to Health Care) Policy 2019.
(CM Provisions)
21.The Defendant was required, at all material times, to comply with the CM Provisions in respect of the first and second detentions.
Human Rights Obligations
22.At all material times, the Plaintiff had rights under the Human Rights Act 2004:
a. to be treated with humanity and with respect for the inherent dignity of the human person while deprived of liberty [Section 19(1)]; and
b. as an ATSI person, to not be denied the right to maintain, control, protect and develop their culture, heritage, languages, knowledge, and kinship ties [Section 27(2)].
(Plaintiff’s Human Rights)
23.The decision, which occurred during the first and second detention at the AMC, to
(a) deny the Plaintiff quality health care to a standard equivalent to that available in the ACT community
(b) deny the Plaintiff access to an Aboriginal Health Assessment on admission, or within 5-7 days of induction, whether by way of Justice Health, Winnunga AMC Clinic or at her own expense.
(c) deny the Plaintiff access to the equivalent of an Aboriginal Health Assessment as provided for by MBS-715; and
(d) deny the Plaintiff, as an ATSI person, the right to maintain and/or develop her cultural or kinship ties through the provision of an Aboriginal Health Assessment whether by way of Justice Health or Winnunga AMC Clinic or at her own expense.
were decisions made by or on behalf of the Defendant (the Decisions).
23A. The failure, which occurred during the first and second detention at the AMC, to:
(a) provide the Plaintiff with quality health care to a standard equivalent to that available in the ACT community;
(b) provide the Plaintiff access to an Aboriginal Health Assessment on admission, or within 5-7 days of induction, whether by way of Justice Health, Winnunga AMC Clinic or at her own expense;
(c) provide the Plaintiff access to the equivalent of an Aboriginal Health Assessment as provided for by MBS-715; and
(d) provide the Plaintiff, as an ATSI person, provide an Aboriginal Health Assessment whether by way of Justice Health or Winnunga AMC Clinic or at her own expense so as to allow the Plaintiff to maintain and/or develop her cultural kinship ties;
were acts done by or on behalf of the Defendant (the Acts).
24.The health assessment conducted by Justice Health at induction, and within 5-7 days after induction, is not a full health assessment as it omits to include the equivalent of an Aboriginal Health Assessment as provided by MBS-715.
25.By reason of the matters pleaded in paragraphs 3 and 23 above, the Defendant was required to give proper consideration to the Plaintiff’s Human Rights making the Decisions.
25A.By reason of the matters pleading in paragraphs 3 to 22 and 23A above, the Defendant was required to act in a way that was compatible with the Plaintiff’s Human Rights.
26.When performing its functions under the CMA, the Defendant was required by Section 9 of the CMA to make the Decisions in respect of the Plaintiff as a detainee in a way that would:
(a) respect and protect the detainee’s human rights;
(b) ensure the detainee’s decent, humane and just treatment;
(c) preclude torture or cruel, inhuman or degrading treatment;
(d) ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;
(e) ensure the detainee’s conditions in detention comply with Section 12 (Correctional centres–minimum living conditions); and
(f) if the detainee is an offender–promote, as far as practicable, the detainee’s rehabilitation and reintegration into society.
27. By reason of Sections 12(j) and 53 of the CMA, the Defendant was required to protect the human rights of the Plaintiff by ensuring that the Plaintiff, when undertaking an initial health assessment was provided with access to suitable health services and facilities, including that:
(a) detainees have a standard of health care equivalent to that available to other people in the ACT; and
(b) arrangements are made to ensure the provision of appropriate health services for detainees
(c) conditions in detention promote the health and wellbeing of detainees;
(d) as far as practicable, detainees are not exposed to infection;
(e) regular health checks;
(f) timely treatment where necessary, particularly in urgent circumstances;
(g) as far as practicable;
(i) specialist health services from health practitioners; and
(ii) necessary health care programs, including rehabilitation programs.
27A.By reason of Sections 67 and 68 of the CMA, the Defendant was required to protect the human rights of the Plaintiff by ensuring that the Plaintiff, when undertaking an initial health assessment was provided with access to suitable health services and facilities, including that:
(a) detainees have a standard of health care equivalent to that available to other people in the ACT; and
(b) arrangements are made to ensure the provision of appropriate health services for detainees.
28.The provisions of the CMA pleaded above did not require the Defendant to detain the Plaintiff in a way inconsistent with the Plaintiff’s Human Rights.
29.Detaining a person where the Defendant neglects, fails and/or refuses to facilitate and permit access to an Aboriginal Health Assessment has the effect of:
(a) treating a person without humanity or with respect for their inherent dignity whilst deprived of their liberty; and
(b) denying them the right to maintain, control, protect and develop their culture, heritage, languages, knowledge, and kinship ties.
30. By reason of the matters set out above:
(a) the Decisions by the Defendant were unlawful pursuant to s 40B of the Human Rights Act 2004.
(b) the Acts by the Defendant were unlawful pursuant to s 40B of the Human Rights Act 2004.
(c) the Acts and Decision by the Defendant were in breach of:
(i) section 53 of the CM Act;
(ii) sections 67 and 68 of the CM Act.
The evidence
The plaintiff relied on the following affidavits:
(a)The plaintiff dated 1 July 2021; and,
(b) Jonathan Stanhope dated 16 August 2021.
The plaintiff also relied on an expert report from Professor P O’Mara dated 26 August 2021.
A number of exhibits were tendered by the plaintiff. They were:
(a)Exhibit “P1” – Plaintiff’s tender bundle. This included the above affidavits and report, and also the plaintiff’s clinical records kept by ACT Health.
(b)Exhibit “P2” – Amended agreed statement of facts.
(c)Exhibit “P3” – Letter from ACT Human Rights Commission to the plaintiff’s solicitor advising of the Commission’s decision not to intervene in the proceedings.
(d)Exhibit “P4” – MBS Schedule item 715.
(e)Exhibit “P5” – Arrangement between the Defendant and Director General, ACT Health for the delivery of health services for detainees dated 14 August 2017.
The defendant relied on:
(a) The affidavit of Ms C Justason dated 30 September 2021 and referenced exhibits (which together became Exhibit “D1”). The affidavit was amended pursuant to the agreement of the parties to resolve disputes about admissibility.
(b) The affidavit of Mr R Maguire dated 5 October 2021 and referenced exhibits (which together became Exhibit “D2”). This affidavit was also amended pursuant to the agreement of the parties to resolve disputes about admissibility.
(c) Exhibit “D3” – Health Assessment form relating to the plaintiff dated 21 September 2019 – this was an ACT Health document.
The Amended agreed statement of facts contained the following:
1. The Plaintiff was born on 21 January 2000.
2.The Plaintiff is an Aboriginal person being of Aboriginal or Torres Strait Islander descent.
3.The Defendant is a public authority for the purposes of section 40 of the Human Rights Act 2004 (ACT).
4.An Aboriginal Health Assessment is a Medicare Benefits Schedule Assessment under Item 715 (“MBS 715”).
5. An Aboriginal Health Assessment may be provided once every nine months.
6.The Plaintiff, as a child, on or about 2 September 2013 and 17 June 2014, underwent an Aboriginal Health Assessment in the community in the Australian Capital Territory (“In the ACT community”).
7. The Plaintiff, as an adult, on or about 30 July 2020, underwent an Aboriginal Health Assessment in the ACT community.
8.The fee for MBS 715 as at 2 September 2013 was a cost of $247.30, as at 30 July 2020 was a cost of $215.65 and at 1 July 2021 was a cost of $220.85.
9.The Plaintiff’s Aboriginal Health Assessments referred to in paragraphs [6] and [7] above were performed by Winnunga Nimmityjah Aboriginal Health and Community Services (“Winnunga”).
10.The Plaintiff was first detained at the Alexander Maconochie Centre (“AMC”) from 10 September 2019 to 9 July 2020 (“the first detention”).
11.The Plaintiff was subsequently detained at the AMC from 8 January 2021 to 26 May 2021 (“second detention”).
12.During the first and second detention the Plaintiff did not have an Aboriginal Health Assessment.
13.Justice Health Services (Justice Health) is a program area of Mental Health, Justice Health and Alcohol and Drug Services (MHJHADS), which sits within Canberra Health Services Directorate.
14.On admission for the first detention and the second detention, the Plaintiff identified that she was an Aboriginal person.
15.The Plaintiff did not make a verbal or written request to Justice Health or ACT Corrective Services for an Aboriginal Health Assessment to be undertaken during the first detention or second detention.
16.The Plaintiff was aware of her ability to request that her health care be transferred from Justice Health to Winnunga during the first detention from 12 October 2019 and during the second detention.
17.The Plaintiff’s health care was transferred from Justice Health to Winnunga following a transfer request being made by her during the first detention and the second detention.
Evidence of the lay witnesses
The plaintiff recounted her family history and confirmed the matters summarised in paragraphs [2], [4], [5] and [6] above. She expressed the wish for AHAs to be carried out in the correctional centres conducted by ACTCS. She exhibited a copy of her Winnunga health records, her criminal record and copies of documents relating to her status since her release from AMC on an Intensive Correction Order on 26 May 2021. The plaintiff was not cross-examined.
Mr J Stanhope
Mr Stanhope provided some particulars of his background, including his period as Chief Minister of the ACT from 2001 to 2011. He now acts as a consultant with Winnunga, and in that capacity has particular familiarity with statistics relating to the relative rates of imprisonment of ATSI people, and also as to the relative health status of ATSI people in the ACT. In relation to the former of these, Mr Stanhope referred to statistics which demonstrate that the rate of incarceration of ATSI people is far higher than that for non-ATSI people.
In relation to health status, Mr Stanhope’s analysis of the statistics resulted in the following conclusions comparing ATSI people in the ACT with national averages for ATSI people:
a.81% of ATSI people in the ACT have one or more long term health condition(s), the highest rate across all States and Territories, compared to the national average of 67%;
b.57% of ATSI people in the ACT have one or more selected chronic condition(s), the second highest rate across all States and Territories compared to a national average of 46%;
c. 47% in the ACT have eye/sight problems compared to 38% of ATSI people nationally;
d.21% of ATSI people in the ACT have ear/hearing problems, the highest rate across all States and Territories, around 50% higher than the average of 14% nationally; and
e.40% of ATSI people in the ACT have mental health/behavioural problems, the highest rate across all States and Territories and around 66% higher than the national average of 24%.
Mr Stanhope also provided statistics suggesting that ATSI people in the ACT suffered from longer waiting times at Emergency Departments than ATSI people in other Australian jurisdictions. Moreover, ATSI people wait relatively longer for elective surgical treatment in the ACT than non-indigenous people. Mr Stanhope was not cross-examined.
Ms C Justason
Ms Justason is the Deputy Commissioner, Custodial Operations at the AMC, within ACTCS. She has been in that position since February 2019. Before that, from October 2018 to February 2019 she was the Deputy General Manager, Custodial Operations, at the AMC.
In her current role Ms Justason has responsibility for custodial operations at the AMC. She explained that the defendant has certain responsibilities under the CMA in relation to the provision of health services to detainees in the AMC. In March 2017, the ACT (represented by the ACT Health Directorate, as it was named then) entered into a services funding agreement with Winnunga for the provision of primary health care services to ATSI people in the ACT.
The funding agreement was subsequently varied by deed. One of the variations included, amongst other things, a new Schedule 2D, which added to the services to be provided by Winnunga the provision of coordinated health care services to ATSI detainees in the AMC. The funding agreement as varied commenced in 2018. A copy of the funding agreement and the variation is exhibited to Ms Justason’s affidavit. A copy of the MOU is also exhibited.
Ms Justason said that JH and Winnunga are the primary health care providers at the AMC. Each detainee receives an induction assessment conducted by JH on admission, and has access to doctors made available at the AMC by JH. Winnunga provides culturally appropriate health care to ATSI detainees.
It is standard practice for detainees who identify as ATSI to be notified of the availability of Winnunga as a healthcare provider at AMC. This occurs at admission. Ms Justason exhibited a copy of the AMC Detainee Handbook which is provided to all detainees upon admission. The section under “Healthcare” includes information about the option of transferring health care from JH to Winnunga.
Ms Justason stated that ACTCS is responsible for providing a safe and secure environment in which JH and Winnunga can provide appropriate health services to detainees. ACTCS consults with JH and Winnunga in relation to the type of healthcare to be provided to detainees, and to determine the operational support required for detainees to access health services.
There are monthly meetings of representatives of ACTCS, JH and Winnunga to discuss governance and the operational aspects of the provision of healthcare at the AMC.
ACTCS is responsible for the movement of detainees within AMC to attend medical appointments, and also for medical appointments outside the AMC. Appointments within the AMC (with JH staff and an external provider) are generally scheduled in advance by support staff based at the Hume Health Building. (That building is the building within the AMC where the JH staff are located.) These take into account operational constraints such as scheduled lock-ins and lunch breaks.
Ms Justason noted that ACTCS provides JH and Winnunga with access to corrections staff who can advise as to security classifications, any relevant restrictions on a detainees’ movement, and provide security as required. ACTCS does not have access to detainees’ medical records unless that person consents to the release of the information, or the information is otherwise released under a law.
Ms Justason was cross-examined. She confirmed that once a warrant had issued for the imprisonment of a person the defendant took over custody and control of that person. Thereafter, the liberty of the detainee was restricted.
Mr Jeffrie, counsel for the plaintiff, took Ms Justason to the obligations set out under s. 53(2) CMA. She was not aware of any directions having been given to JH in relation to those matters. Nor was she aware of any other directions to JH within the past six months. As to health matters generally, Ms Justason said that the directions she was aware of were those contained in the MOU and schedules. She was not aware of any additional arrangement between ACTCS and JH.
In relation to contact between ACTCS and JH, Ms Justason referred to staff from the latter being present at ACTCS daily briefings which are held at 8:30 AM Monday to Friday. There were also bi-monthly meetings between the staff of the two organisations. In addition, there were the meetings between staff of ACTCS, JH and Winnunga.
Mr Jeffrie referred Ms Justason to s 54 of the CMA. He suggested to her that while the defendant might have to take into consideration advice from a doctor appointed under s 21 of the CMA, ultimately, he had the power to make a decision about the transfer of a detainee to a health facility. By reference to the Corrections Management Access to Health Care Policy (paragraph 8.1), Ms Justason agreed that one of the reasons why a detainee might be escorted to a health facility would be for that person to have “routine health care”.
In relation to the induction health assessment required under ss 67 and 68 of the CMA, Ms Justason said that the initial assessment would be made in the admissions area of the AMC upon the detainee’s arrival, although the detainee might be moved to the Hume Health Building if that request was made by the person conducting the assessment. Ms Justason explained that the building where the admissions occur is next to the Hume Health Centre.
Ms Justason was not aware of what was involved in an AHA. After having been shown Exhibit “P4”, she said that she was not aware of that form of assessment having been discussed between ACTCS and JH.
Mr Jeffrie took Ms Justason to paragraph 5.2 of the Corrections Management Access to Health Care Policy, which refers to “an arrangement between the [defendant] and the Director-General (CHS) for the delivery of health services for detainees.” Ms Justason said that she had no knowledge of that document.
Ms Justason agreed that the defendant ultimately controlled the entry of JH staff into the AMC and provided an area within the centre for the provision of health services by JH. She also agreed that it was the responsibility of the defendant to facilitate the attendance of a detainee who has requested a health service appointment with JH. Ms Justason said that there was nothing, to her knowledge, preventing the defendant from directing that an AHA be carried out at AMC.
In relation to the disclosure of detainees’ medical information by JH or Winnunga to ACTCS, Ms Justason said that there were limited circumstances in which that might occur. There were health notification forms available where it has been determined that there was particular information which ACTCS needed to know.
As to the services which could be provided by Winnunga under the MOU, that did not include dental or mental health care, or initial health assessments (pursuant to ss 67 and 68 CMA). In relation to the latter, Ms Justason said that she did not believe that such assessments could be carried out by Winnunga. This was because under the arrangements under which the AMC operated, the default health care provider was JH. An application for transfer had to be made to change the provider to Winnunga. That application would then have to be accepted by Winnunga.
Ms Justason agreed that if the MOU was to be varied, and Winnunga was willing to provide the service, there was no reason why its staff could not carry out the initial assessment.
In re-examination, Ms Dempster, counsel for the defendant, asked Ms Justason if she was aware of any obligations placed on JH under the CMA. Ms Justason said there were, and she referred in particular to s 21 of that Act. She saw that as imposing an obligation on the Director General (of CHS) to appoint a doctor. The section then sets out certain functions which the doctor is required to perform.
In relation to the question as to why JH was the default health care provider at AMC, Ms Justason said that JH had been the provider at the centre since its inception. Also, it was not possible for Winnunga to be the default provider in circumstances where it had the ability to choose not to take on a detainee as a patient.
Mr R Maguire
Mr Maguire in his affidavit said that he has been the Acting Operational Director of JH since March this year. Before that he was the Assistant Director of Nursing, Custodial Health between September 2018 to November 2020. As Acting Operational Director he is responsible for the management of JH. This includes the provision by JH of primary and mental health services at AMC, and the oversight of the FMHS.
Mr Maguire described the organisational structure of the CHS and the MHJHADS of which JH is part. He noted that JH has primary responsibility for providing health services for all detainees at the AMC. It is also responsible for conducting the initial assessment of the physical and mental health needs and risks of each detainee admitted to the AMC. He exhibited to his affidavit a copy of the clinical procedure document relating to such assessments.
Mr Maguire referred to Winnunga and said that JH is independent from both that entity and ACTCS. Each of those organisations and JH had complementary roles in the provision of health care to detainees at the AMC. He referred to the MOU in that regard. JH consults with ACTCS in relation to operational matters such as hospital or medical facility transfers and the isolation of detainees for health reasons.
JH provides staff at the AMC as follows:
(a) GPs to attend and provide primary health services during business hours Monday to Friday each week;
(b) Nursing staff from 6:30 AM to 8:30 PM each day;
(c) Nurses to provide specialist drug and alcohol, and population health services during business hours on weekdays;
(d) An on-call GP to attend and provide emergency health care services after hours;
(e) A range of health professionals to provide mental health services; and,
(f) Psychiatrists to provide clinics at the AMC.
Mr Maguire said that MHJHADS also provides Aboriginal Liaison Officers at the AMC. By reference to the duty statement for such officers, the intention is that they will provide culturally appropriate support to assist ATSI detainees to obtain health care, including access to early intervention services to aid disease prevention and health promotion. However, these officers do not provide clinical services.
JH relies on ACTCS to provide safe and secure transfers of detainees both within and outside the AMC.
In relation to the initial induction assessment, Mr Maguire said that is carried out jointly by a primary health nurse and a mental health clinician employed or engaged by JH. It is to be undertaken within 24 hours of a detainee’s admission to the AMC. The length of the assessment differs for each detainee depending on their individual circumstances. The assessment involves verbal discussion between the nurse and the detainee about that person’s general health, and also a clinical assessment.
During the assessment the nurse makes a written record of the matters discussed and records observations as to the detainee’s general presentation. There are five separate forms to be completed during the course of the induction assessment. Those forms are described as:
(a)Induction Assessment Form;
(b)Health Assessment Form;
(c)Forensic Mental Health Induction Assessment Form;
(d)Custodial Mental Health Induction Screening Form; and,
(e) Suicide Vulnerability Assessment Tool.
Mr Maguire describes the assessment process as involving the nurse asking the detainee a series of questions to screen for any acute physical or mental health issues, such as diabetes, heart conditions, cancer or respiratory issues. The detainee is, at that time, able to advise of any health concerns such as injuries or particular medical issues.
The screening process also generally involves a detainee being questioned about his or her medications, who normally prescribes them, illicit drug use, alcohol use and mental health history. If the nurse is informed that health care has been provided by a particular provider in the community, he or she may make a request for information from that provider. However, such a request can only be made if the detainee provides written consent.
The nurse conducting the assessment will also weigh and record the weight of the detainee. He or she will check vital signs such as blood pressure, heart rate, temperature, oxygen saturation and respiratory rate. Female detainees are generally asked about the history of breast checks and Pap smears and may be referred for further examination or assessment. Questions will also be asked about a detainee’s sexual health. A pregnancy test will be offered to female detainees, if appropriate.
Depending on what is reported or observed by the nurse, a detainee may also be referred for further healthcare from a GP or a nurse specialising in an area such as population health, or drug and alcohol. An ear or eye examination may be conducted if the assessing nurse considers it appropriate.
The findings of the induction assessment are reported to a doctor. That may occur by face-to-face conversation or over the phone, or on a JH handover. JH also provides ACTCS with a Primary Health Notification Form and Forensic Mental Health Notification Form which outline any health issues or concerns identified during the assessment to assist with managing the detainee safely whilst in custody.
Mr Maguire described the general access to health services at AMC by reference to twice per day medication rounds by JH nursing staff each day of the week. Detainees can also request health services such as a GP consultation or mental health consultation. In the case of medical emergencies, a particular code can be called by any AMC staff member and JH staff will respond urgently.
Mr Maguire said that JH, as part of CHS, has the capacity to provide detainees with access to the same health services that are available to members of the general public. That includes services ranging from general health services to dental care, sexual health care, oncology treatment and wound care. If JH is unable to provide a detainee with a particular type of health service at the AMC, it may refer that person to an external health provider for specialist care. In those cases, JH works with ACTCS to facilitate the provision of the external care.
So far as Winnunga is concerned, Mr Maguire noted that it provides an independent healthcare clinic at the AMC. However, all detainees are clients of JH unless and until they are accepted as clients by Winnunga. Mr Maguire exhibited the Winnunga AMC Clinic Registration Request Form that detainees are required to complete to register as Winnunga clients. JH does not have any control over which detainees Winnunga decides to accept as clients, nor does it have access to a detainee’s clinical file held by Winnunga.
If a detainee is accepted as a Winnunga client that organisation takes over responsibility for most of his/her healthcare. However, JH maintains responsibility for providing healthcare services outlined under s 21 of the CMA. Also, if a detainee is assessed as having particular self-harm risk or mental health condition the care of that person will remain within JH until the condition is appropriately managed or resolved.
Mr Maguire noted that although there were some limitations on the types of services which can be provided by Winnunga pursuant to the MOU, ongoing negotiations have resulted in Winnunga being able to provide certain additional services. Winnunga provides its detainees clients with GP and nursing services. One of the GP services specifically referred to in Schedule 1 of the MOU is “comprehensive Aboriginal health checks”.
Mr Maguire did not recall having had any direct contact with the plaintiff during her periods of detention. He reviewed her clinical records and noted the following:
(a)The plaintiff requested transfer to the care of Winnunga on 10 September 2019;
(b)On 15 October 2019, a JH psychologist noted that Winnunga had assessed the plaintiff as suitable for transfer. However, the plaintiff self-referred to JH for treatment of mental health symptoms, and Winnunga requested that the plaintiff be reviewed before transfer. After review, the plaintiff decided to remain with the FMHS for the time being;
(c)From that time until 5 December 2019 the plaintiff remained under the care of the FMHS. She was transferred to Winnunga in February 2020.
In relation to her second detention, the plaintiff requested transfer to Winnunga on 15 January 2021. The transfer was effected in the following month.
Ms Dempster also asked Mr Maguire some questions about an issue which had arisen in relation to the Health Assessment Form dated 21 September 2019 in relation to the plaintiff. Mr Maguire explained that the Induction Assessment Form was completed at the time of the admission to AMC, whereas the Health Assessment Form was usually completed a week or so afterwards. The reason for that is that the admission process is very stressful. It is preferable to complete the health assessment after things have calmed down for the detainee.
Mr Maguire was cross-examined. He said that he had not been in clinical practice as a nurse since 2011. He had not personally performed either induction assessments or the health assessments carried out seven days later.
Mr Jeffrie took Mr Maguire to s 53 of the CMA. Mr Maguire said that he was not aware of any directions made by the defendant in relation to the matters referred to in ss 53(1) and (2). He was also not aware of the “Arrangement” document referred to in paragraph 5.2 of the Corrections Management Access to Health Care Policy 2019, or of any other deed or instrument which outlined the arrangements between JH and ACTCS.
Mr Maguire agreed that while ACTCS and JH provide complementary services in relation to health care at the AMC, the former controls the entry to the centre, and the movement of detainees. However, Mr Maguire did not agree with the proposition that JH effectively provided health care at the AMC “at the direction” of ACTCS. He maintained that JH operate as medical professionals. JH is not, as he put it, a “passive player”.
In relation to the health notification forms (whereby ACTCS might be put on notice of a detainee’s medical condition), Mr Maguire said that such forms were used as necessary from time to time during a period of detention. They were not just completed at induction.
Mr Maguire agreed that given the timing of the induction assessment, and the health assessment carried out a week or so later, only JH could perform those assessments. He was not aware of what was required in an AHA. Mr Jeffrie took him to Exhibit “P4” (the MBS item 715), and in particular the details of what was required in the health assessment of an ATSI person aged between 15 years and 54 years. Mr Maguire agreed that neither the induction assessment nor the one carried out around a week later included all of the items listed in the AHA.
Mr Maguire noted that the Medicare Scheme did not operate in prisons. He said that he could see nothing preventing JH from providing AHAs in the AMC. He agreed that they could be provided during the overall detention period. However, he did not think that an AHA should be done upon admission. It is a stressful process. Detainees might have been recently arrested and they might be suffering from withdrawal symptoms. He did not see it as an appropriate time for such an assessment. He did agree that notwithstanding his professional reservations, there was no specific factor which would prevent an AHA being carried out during the induction. He also agreed that an AHA could be carried out at the time of the health assessment to be made a week after induction.
Mr Jeffrie asked whether, having regard to the detail set out in Exhibit “P4”, it would be of assistance in the provision of health care at the AMC to carry out AHAs. Mr Maguire said, by reference to his professional judgment, that it could be useful. He agreed that it would be of assistance.
In relation to the Induction Assessment Form completed on 15 September 2019, Mr Maguire agreed that the questions set out in the form were designed to provide the highlights of a detainee’s health position. He also agreed that the recorded clinical observations were “relatively basic”. In relation to the Health Assessment Form dated 21 September 2019, Mr Maguire said that it required a greater depth of questioning. However, it was still essentially a screening assessment. It was not the same as an AHA.
Mr Maguire was taken to the clinical records relating to the plaintiff which indicated a delay in the transfer to Winnunga between 5 December 2019 and early February 2020. Mr Maguire agreed that the delay was far too long, given that the MOU refers to a transfer occurring within three days of request.
Mr Jeffrie asked whether there were formal health assessments carried out, apart from those reflected in the Induction and Health Assessment Forms. Mr Maguire said that there were not, at least in a formal way. He agreed that there was no direction from ACTCS for health checks to be carried out every three months.
In re-examination, Ms Dempster sought clarification of Mr Maguire’s evidence about health checks. Mr Maguire said that the nature of the assessment made would depend on the reason why the detainee wanted an appointment with JH, and the professional judgment of the nurse or doctor involved.
Ms Dempster asked as to the purpose of the induction and health assessments. Mr Maguire explained that the induction assessment was designed to allow JH to assess immediate health needs, and also the risks arising from the circumstances of admission to AMC such as acute injury, withdrawal, mental illness, etc. An assessment will also be made at that time as to chronic health problems and the need for ongoing medication. However, the admission is carried out in a busy and noisy environment. The assessment a week later can go into more detail and to follow up with the detainee’s clinical records in the community with a view to developing a plan of care.
In relation to the different roles of JH and ACTCS Mr Maguire pointed out that JH provides health professionals for the care of detainees while ACTCS manages the AMC so as to provide security and safety. ACTCS does not provide health care.
Mr Maguire elaborated on why he did not regard JH as having a passive role in providing health care at AMC. He described the provision of health care at the centre as arising from interactions between JH staff, detainees, lawyers representing detainees, oversight agencies as well as ACTCS staff.
The expert evidence
Professor P O’Mara
Professor O’Mara is a Wiradjuri man who completed his medical degree in 1999. He became a Fellow of the RACGP in 2003. In 2008, he was appointed to the position of Associate Professor of Indigenous Medical Education at University of Newcastle. He was promoted to Professor in 2020. Professor O’Mara was President of the Australian Indigenous Doctors Association from 2009-2013. Since 2016 he has been the Chair of the RACGP ATSI Health Faculty, and a member of the RACGP Board.
The Professor was asked to respond to a number of specific questions put by the plaintiff’s solicitor. I propose to set out the parts of the report which were particularly relied upon by the plaintiff’s counsel in the course of his opening and submissions. The first question, and the part of the answer relevant for current purposes were:
Please provide your observations of the nature of the MBS Item 715 including its history, purpose and requirements for the assessment.
Annual health assessments for (ATSI) people have been progressively introduced since 1999, in response to the burden of preventable chronic disease experienced by (ATSI) people. The MBS Item 715… Is one of the MBS item numbers available to support the delivery of annual comprehensive health assessments for (ATSI) people. These items represent a way of organising a range of health-promoting, disease-preventing activities that are usual practice in comprehensive primary health care.
The second question, and the response, as set out in the report were:
What are the benefits to Indigenous and Torres Strait Islander Peoples associated with a Medicare Benefits Schedule Item 715 being conducted as required?
I consider health assessments to have benefits for Aboriginal and Torres Strait Islander people at a population level and at the individual patient level. Broadly speaking, they can be considered as an important practice element of the national policy commitment to Closing the Gap and to achieving health equity. Consistent high-quality service delivery contributes to improved health outcomes and guarantees a sustained level of commitment/funding from Australian governments.
In my experience as a GP, reinforced through my participation in the RACGP/NACCHO project, I have found there are a multitude of benefits for patients: These include:
· Initial and ongoing engagement in healthcare, which enables the identification of health and social care needs, and patient goals and priorities
· chronic disease management and access to other primary care services, for example oral health, ear health and hearing. GP/primary care and access to allied health and other services (follow-up)
· enabling health risk assessment and early diagnosis and intervention
· supporting participation in population health programs, for example immunisation and cancer screening
· referrals to other health providers including non-GP medical specialists, allied health practitioners, and mental health/social and emotional wellbeing support and services.
The next question, together with the part of the answer to which particular attention was drawn, was:
Are there any barriers to conducting the equivalent of a Medicare Benefits Schedule Item 715 in detention?
Aboriginal and Torres Strait Islander people in prison settings have the right to access culturally safe healthcare, that is equivalent to the healthcare available in the community, promotes continuity of care between the prison and community and is patient centred.
…
The equivalent of an annual health assessment may be provided by any primary healthcare team that has appropriate clinical skills and an understanding of the purpose and content of high-quality health checks. The components of effective health checks are all healthcare activities that may be offered during comprehensive primary healthcare including physical and mental health, social and emotional health status, health risk assessment, immunisation status and the impact of social determinants of health, such as financial status, living conditions prior to incarceration and so on.
…
Factors that interrupt continuity of care
Prisoner health is most vulnerable at release and transition back into the community, particularly in cases where prisoners are house in an area where they will not be released. Continuity of care between the community and prison is commonly disrupted due to a range of factors, for example. Lack of consistent communications and handover from community-based (usual) healthcare provider(s), bail and parole applications, uncertainty of discharge dates.
The final question and answer referred to was in the following terms:
What is the cultural significance, if any, of a Medicare Benefits Schedule 715 (or its equivalent)?
In my experience as a GP, annual health assessments are widely accepted in the Aboriginal and Torres Strait Islander communities as an important part of health and wellbeing. As well as the material value in terms of healthcare accessed and received, they have a growing cultural value as a symbol of heal and wellbeing and of cultural and community connection. For example, Aboriginal Community Controlled Health Organisations (ACCHOs) regularly hold health promotion campaigns designed to encourage community members to attend the health service for a health assessment, which encourages connections between community members and with the health service.
Professor O’Mara was not cross-examined.
The documentary evidence
I propose to set out those parts of the documents forming part of the evidence that appear to be of particular relevance to the resolution of the issues raised by the plaintiff’s claim. Some, but not all, of these extracts were the subject of the oral testimony of Ms Justason and Mr Maguire.
Arrangement between the Defendant and Director General, ACT Health (dated 14 August 2017)
This document was tendered as Exhibit “P5”. Mr Jeffrie complained about the late production of the document. The plaintiff had, by notice to produce, sought a copy of any document having the title of the document which became Exhibit “P5” which was “applicable” at the times of the plaintiff’s detentions. The notice had been given to the defendant’s solicitor a few weeks before the hearing. However, the document was not provided to those advising the plaintiff until the morning of 16 November 2021, that is the second day of the hearing.
There were communications between the solicitors for the parties which initially indicated that the defendant (or perhaps more correctly, those within his Directorate who were handling this matter) were not able to find the document. The plaintiff’s solicitor was informed not to assume that the document did not exist and that the defendant would continue searching.
Ms Dempster explained that there was uncertainty on the part of her client as to whether this document was in force at the time of the plaintiff’s detentions. For this reason it had not been produced. It was not entirely clear when this document was identified within the defendant’s records. I should say that I have some concerns at the late production given the status of the defendant, and his obligations under the Law Officer (Model Litigant) Guidelines 2010 (No 1) (ACT). I appreciate that the process of finding and identifying all relevant documents in a complex bureaucratic setting can be very difficult and time consuming. I accept that those dealing with the notice to produce had real doubts as to the relevance of the document. However, it does seem to me, given its contents, that it would have been preferable for the document to have been produced together with the explanation for the doubt as to whether it was still in force by 2019 as soon as it was found. If it was only found at the time of the hearing, it is a matter of concern that it was not found sooner.
I should say, as can be seen from what it is in the document itself, that it very much appears that it was intended to remain in force on an ongoing basis, albeit subject to triennial review. It relevantly provided:
STATEMENT OF INTENT
The Directors-General of the Act Justice and Community Safety Directorate (DG JACS) and Health Directorate (DG Health) share certain responsibilities in the management of correctional centres in the ACT to promote public safety and the maintenance of a just society, particularly by ensuring the secure detention of detainees and ensuring that detainees are treated in a decent, humane, and just way.
The directors-general therefore intend this Arrangement to constitute an enduring shared commitment to ensuring as far as practicable, that:
· detainees have access to suitable health services and health facilities, and a standard of health care equivalent to that available to other people in the ACT, and
· conditions in detention promote the health and wellbeing of detainees, and detainees are not exposed to risks of infection.
The directors-general expect staff to work together and share information to ensure detainees have access to regular health checks and timely physical and mental health treatment (including hospital or specialist care) where necessary.
Guiding Principles
For all purposes under this Arrangement, the directors-general will be guided by the following principles:
· whether in custody, in the community or in health facilities–all detainees assess as having a health issue are patients, and all patients are detainees
· a custodial response to a behavioural or health-related issue without an appropriate clinical treatment response is unlikely to be in the best interests of the detainee; similarly, so is a clinical treatment response that does not have regard for the custodial setting
· a health care model should recognise the important role of corrections officers in the monitoring of detainees/patients to deliver positive health outcomes for them
· the capacity for custodial and health staff to intervene effectively and therapeutically depends on appropriate access to information, and
· staff collaboration is central to managing custodial and health risks, especially those associated with suicide and self-harm.
…
CONTEXT
1.Subject to any direction that may from time to time be given by the responsible portfolio Minister/s, the aim of this Arrangement is to provide agreement between DG JACS and DG Health as to the way in which health services are provided by their respective directorates to detainees, whether:
· in custody (for example at the Alexander Maconochie Centre (AMC))
· subject to community correction (for example if not detained, or if released from custody but still subject to court orders), or
· at a health facility (for example including Dhulwa or Canberra Hospital)
2.The principal legislation governing all correctional services is the Corrections Management Act 2007 (CMA). Under the Act, the DG JACS is ultimately responsible for correctional services and ensuring the protection of human rights of detainees and the provision of minimum standards as outlined in section 12. This includes ensuring respect for the humanity of everyone involved in correctional services, ensuring detainees’ decent, humane and just treatment, and meeting minimum living conditions including by ensuring as far as practicable, that detainees have access to suitable health services and health facilities.
3.It is the statutory duty of DG JACS to ensure that detainees have access to regular health checks, timely treatment and hospital care where necessary, particularly in urgent circumstances, as well as specialist health services from health practitioners and necessary health care programs, including rehabilitation programs.
4.Related to this it is the statutory duty of DG Health to appoint a doctor for each correctional facility to provide health services to detainees and to protect the health of detainees (including preventing the spread of diseases at the centre). The doctor must be available to provide health services at the centre at least once each week and may give written directions to DG JACS which are to be complied with unless DG JACS believes, on reasonable grounds, that compliance would undermine security or good order at the correctional centre.
5.The directors-general acknowledge that through close professional and cooperative collaboration between public servants–predominantly engaged in ACT Corrective Services (ACTCS) and Mental Health, Justice Heath, Alcohol & Drug Services (MHJHADS)–both agencies play complementary roles in the provision of treatment and support to detainees.
6.Together the staff of the respective directorates have mutual responsibilities for the health and wellbeing of detainees.
SERVICE ARRANGEMENTS AND RESPONSIBILITIES
…
Respect
9.The parties will implement the Arrangement in good faith and with mutual respect for each other’s professional judgment and best endeavours, even though it is not intended that the Arrangement will have legal or binding effect or create binding legal relations between the parties.
10. The parties acknowledge that:
· DG JACS may make notifiable corrections policies and operating procedures to facilitate the effective and efficient management of correctional services.
· ACTCS has over-arching responsibility for the provision of appropriate facilities and associated infrastructure for the provision of custodial health services at correctional centres, including the AMC.
· ACTCS staff have the primary responsibility for ensuring secure detention and the provision of minimum living conditions for detainees.
· ACT Health will provide health services for detainees at the AMC and at such other places in the ACT as may be clinically appropriate for detainees.
· ACT Health will manage equipment and treatment spaces associated with facilities inside the Hume Health Centre and other health facilities.
· MHJHADS staff have the primary responsibility for initial triage, assessment and appropriate health treatment of all detainees.
…
Collaboration
…
22.The parties will consult genuinely and openly with each other in the development, implementation and review of models of care and practices, policies and procedures that have a direct or indirect impact on each other’s operations in connection with detainees.
23.Without limiting the nature of their collaboration in any area, the parties recognise the critical importance of cooperating in:
· development of fundamental governance documentation for physical and mental health service provision at the AMC; and
· prompt and effective management of situations involving persons at risk of suicide or self-harm.
Innovation
…
26.For the purposes of this Arrangement the parties may jointly or separately establish arrangements with third parties for the provision of services directly or indirectly related to detainees’ health, for example in the areas of:
· detainee induction or discharge management
· health service delivery or medication management
· offender services, including therapeutic or rehabilitation program delivery
· case management.
27.The parties undertake to consult each other prior to engaging third party service providers and to collaborate with, and provide reasonable support and assistance for, each other and the third parties to deliver the relevant services.
RESOURCES AND GOVERNANCE
…
30.The allocation of resources affecting the provision of health services to detainees will not be altered by any party in any way which might materially affect the safe and efficient operation of the AMC without prior consultation and agreement.
…
Relationships and media
35.The parties will not by virtue of this Arrangement be, or for any purpose be deemed to be, employees or agents of each other, and will not represent themselves as such or as otherwise able to bind or represent the other party.…
Review
38.The parties agree to conduct a review of this Arrangement at least once every three years, or such other time as jointly agreed.
(citations omitted)
Services funding agreement
This agreement was made between the ACT, represented by the ACT Health Directorate (as it was then known) and Winnunga (although it appears to have been a slightly different entity from the current corporation). The copy before the Court is not dated, however it is stated to operate from 1 March 2017 (Schedule 1, item 3). The agreement required Winnunga to provide certain services in return for funding by the ACT during the period of the agreement. The service relevant to the case before the Court are set out in Schedule 2A. The obligation of Winnunga was, in broad terms, to provide “Primary Health Services” having regard to a number of documents setting out broad policy objectives. The particular outcomes sought to be achieved under the agreement are in the following terms (where “the Organisation” refers to Winnunga):
In delivering the services, the Organisation will aim to:
(1)Increase access to primary health service for Aboriginal and Torres Strait Islander peoples in the ACT;
(2)Facilitate access to specialist health services for Aboriginal and Torres Strait Islander peoples in the ACT, including through outreach models;
(3)Improve the health and wellbeing of pregnant women and their infants, including but not limited to:
(a) Reduced rates of smoking during pregnancy
(b) Reduced rates of alcohol and other drug use during pregnancy
(c) Reduce rates of low birth weight babies
(4) Improve hearing health for infants and children, including but not limited to:
(a) Early identification of hearing health issues
(b) Reduced rates of otitis media
(c) Increased treatment of hearing health issues including otitis media, where identified
(5)Improve dental health for Aboriginal and Torres Strait Islander children, youth and adults including but not limited to:
(a) Reduced rates of dental caries
(b) Increased community acceptance and lessening of stigma associated with people affected by mental illness.
Item 3 described the following under the heading “Outputs”:
The Organisation will provide the following culturally appropriate and comprehensive community based primary health services for Aboriginal and Torres Strait Islander peoples in the ACT:
…
(2)Hearing Health Program: for infants and children, providing a comprehensive school-based screening service and the development and provision of appropriate education and treatment, including referral for surgical interventions;
(3)Dental Health Program: providing dental assessment and treatment services for Aboriginal and Torres Strait Islander children, youth and adults;
(4)Correctional Outreach Services: providing outreach social health supports as required, to Aboriginal and Torres Strait Islander people in correctional facilities in the Alexander Maconochie Centre and Bimberi Youth Justice Centre
Schedule 2B to the agreement identified further services designed to address harm caused to the ATSI community by drug, tobacco and alcohol use. The following service was stated under item 1(3):
(3) The Organisation will deliver the following services:
The Organisation will work with Aboriginal and Torres Strait Islander people who are risk of and / or experiencing problematic alcohol, tobacco and other drug use; their families and the community to deliver an alcohol, tobacco and other drug treatment and support program delivered by alcohol and drug workers. Priority is to be given to ACT residents.
Item 3 contained the following reference under “Outputs”;
Output 3: Other alcohol and other drug services provided in the Alexander Maconochie Centre as agreed with Corrective Services
(1) For alcohol, tobacco and other drug treatment services delivered in detention facilities operated by the ACT Government, including where these services are not funded by ACT Health, begin reporting to ACT Health from the second six months of activity (July-Dec 2017) utilising the ACT Minimum Data Set for Alcohol and Other Drug Treatment Services Data Dictionary and Collection Guidelines. (That is, AOD services provided at either the Alexander Maconochie Centre or Bimberi Youth Detention Centre.
Deed of variation of services funding agreement
The deed carries the date 7 June 2018 on the front page. One of the variations in this document was the replacement of the earlier Winnunga entity with the current corporation. The deed also added Schedule 2D to the original agreement. It was stated to operate from 1 June 2018. The relevant parts of that Schedule are:
COORDINATED HEALTH CARE SERVICES TO ABORIGINAL AND TORRES STRAIT ISLANDER DETAINEES IN ALEXANDER MACONOCHIE CENTRE (AMC)
Item 1. THE SERVICES
Due to the significant proportion of Aboriginal and Torres Strait Islander detainees at AMC, there is a need to provide a holistic approach to health care for detainees. This was identified in the ACT Government Response to the Independent Inquiry into the Treatment in Custody of Mr Steven Freemen – Findings and Recommendations of the Moss Review.
(1) Name of Service:
Winnunga …
(2) The Organisation will deliver the following services:
An autonomous primary health care and wellbeing services to Aboriginal and Torres Strait Islander detainees at AMC
Item 2. OUTCOMES
In delivering this service the Organisation will provide health and wellbeing services to Aboriginal and Torres Strait Islander detainees in AMC in a coordinated and holistic manner.
Item 3. OUTPUTS
(1) In delivering the services, the Organisation will aim to:
(a)Provide Health Assessment for Aboriginal and Torres Strait Islander detainees accessing Winnunga AHCS services in AMC;
(b)Provide GP Mental Health Care Plans and focussed psychological strategies where required for detainees accessing Winnunga AHCS services in AMC
(c)Provide coordination and care planning for chronic conditions where required for detainees accessing Winnunga AHCS services in AMC;
(d)Provide standard GP consultations to detainees accessing Winnunga AHCS services in AMC
(e)Provide holistic, multidisciplinary and culturally appropriate care through case conferencing and,
(f)Conduct regular Governance Reference Group meetings with ACT Health and ACT Corrective Services.
Item 4.PERFORMANCE EXPECTATIONS
The Organisation will ensure:
(a)Health Check Assessments provided to all Aboriginal and Torres Strait Islander detainees accessing Winnunga AHCS services in AMC.
(b)Mental Health Care Plans are in place and implemented for all people assessed as required.
(c)Delivery of focussed psychological strategies for all people assessed as required.
(d)Chronic conditions care plans are in place and implemented for all people assessed as required
(e)Accessible GP consultations to all Aboriginal and Torres Strait Islander detainees registered with Winnunga AHCS services in AMC.
(emphasis added by underlining)
Schedule 4 contained the funding to be provided by the Territory to Winnunga for the various services to be provided. The funding to be provided for the Schedule 2D services was a single-line lump sum of just under half a million dollars.
Memorandum of understanding
The MOU was made on 21 December 2018. The “Statement of Intent” at the commencement of the document provides:
STATEMENT OF INTENT
In 2017 the parties, namely the Australian Capital Territory (the Territory) and Winnunga Nimmityjah Aboriginal Health and Community Services Ltd (Winnunga AHCS), entered into a Service Funding Agreement (Agreement) for Winnunga AHCS to provide Aboriginal and Torres Strait Islander Holistic Health Services in the A.C.T.
In 2015 Mr Steven Freeman suffered a severe assault in the Alexander Maconochie Centre (AMC). Mr Freeman tragically died in AMC in 2016. In an inquiry into the treatment and care of Mr Freeman in AMC (Moss Review) recommended the integration of Winnunga AHCS into the provision of health care at AMC.
In response to those events:
· The Agreement was varied in mid-2018 to incorporate Schedule 2D to provide for Winnunga AHCS to deliver coordinated health care services to Aboriginal and Torres Strait Islander detainees in AMC
· and now this MOI and the Schedules made under it are intended to ensure Aboriginal and Torres Strait Islander detainees receive health care at the AMC in a holistic and culturally safe way.
In the ACT the Director-General (DG) of the Justice and Community Safety Directorate (JACS) and the Chief Executive Officer (CEO) of Canberra Health Services (CHS) have certain responsibilities in the management of correctional centres to promote public safety and the maintenance of a just society, particularly by ensuring the secure detention of detainees and ensuring that detainees are treated in a decent, humane and just way.
To give effect to the Agreement DG JACS, CEO CHS and the CEO of Winnunga AHCS (collectively referred to as the Principals of their organisations) intend this Memorandum of Understanding (MOU) to constitute an enduring shared commitment to:
· recognising the paramount statutory obligations and powers of certain entities on behalf of the Territory to administer the AMC and provide for the health and wellbeing of detainees
· respecting the corporate duties and professional responsibilities of directors and clinicians of Winnunga AHCS
· adhering to the AMC human rights principles
· working together to ensure Aboriginal and Torres Strait Islander detainees have access to comprehensive Aboriginal health checks, chronic conditions care planning and coordination, mental health treatment and care planning capable of recognising trauma experienced by Indigenous people at the individual and collective level, and appropriate referrals to and collaboration with specialist and allied health professionals.
(emphasis added by underlining)
Guiding principles
Actions under this MOU will be guided by the following principles:
· all detainees in AMC assessed as having a health issue are clients of a health care service, and all health care service clients in AMC are detainees
· subject to the Corrections Management Act 2007 (CMA) and this MOU, CHS and Winnunga AHCS are autonomous providers of health care services to their clients
· a health care model should recognise the important role of corrections officers in the monitoring of detainees to deliver positive health outcomes for them
· the capacity for custodial and health staff to intervene effectively and therapeutically depends on appropriate access to information; and
· staff collaboration is central to managing custodial and health risks, especially those associate with suicide and self-harm.
There is a more detailed explanation of the circumstances in which the MOU was entered into set out under the heading “Context”. It is there stated (omitting footnotes):
1.The aim of this MOU is to provide agreement between the Principals as to the way in which health services are provided by their respective organisations to detainees at the AMC. The MOU does not apply to detainees while they are in-patients of a hospital or other health facility. Services under this MOU are not to be provided other than at the AMC.
2.The main legislation governing all correctional services is the CMA. Under that Act correctional services at the AMC and elsewhere must be managed by ensuring respect for the humanity of everyone involved in correctional services, ensuring detainees’ decent, humane and just treatment, and meeting minimum living conditions including by ensuring as far as practicable, that detainees have access to suitable health services and health facilities.
3.DG JACS makes corrections policies and operating procedures consistent with the Act to facilitate the effective and efficient management of correctional services.
4.It is the statutory duty of DG JACS to ensure that all detainees have access to regular health checks, timely treatment and hospital care where necessary, particularly in urgent circumstances, as well as specialist health services from health practitioners and necessary health care programs, including rehabilitation programs.
5.Related to this it is the statutory duty of DG Health (being the CEO, Canberra Health Services) to appoint a doctor for the AMC (the s.21 doctor) to provide health services to detainees and to protect the health of detainees (including preventing the spread or disease at the centre). The doctor must be available to provide health services at the centre at least once each week and may give written directions to DG JACS, which are to be complied with unless DG JACS believes, on reasonable grounds, that compliance would undermine security or good order at the correctional centre.
6.The duty under s.21 does not preclude other clinicians from providing services at AMC. To be clear, Winnunga AHCS doctors and other clinicians may provide health services at AMC as contractors but are not appointed as s.21 doctors.
7.The Principals acknowledge that through close professional and cooperative collaboration Corrections, the division of CHS providing Mental Health, Justice Health and Alcohol & Drug Services (Justice Health), and Winnunga AHCS play complementary roles in the provision of treatment and support to detainees.
8.Notwithstanding the provisions above, there may be occasions when the functions of the s.21 doctor require that person:
· to seek information from Winnunga AHCS about the nature or extent of health services provided to a detainee, or
· to provide a health service to or for a detainee, even if Winnunga AHCS is also providing a service to or for that detainee.
9.The s.21 doctor taking an action described in paragraph 8 must communicate on the basis for the intervention to Winnunga AHCS before taking the action if practicable, or otherwise as soon as practicable afterwards.
10.There may also be occasions when Corrections seeks a written report about the health of a detainee from Justice Health, and through them from Winnunga AHCS. Justice Health must comply with such a request as soon as practicable. Winnunga AHCS agrees to assist in this process for Winnunga AHCS clients.
The relative roles of ACTCS, CHS and Winnunga were addressed in paragraph 19:
19. The Principals acknowledge that:
· DG JACS may make binding notifiable corrections policies and operating procedures to facilitate the effective and efficient management of correctional services.
· Corrections has over-arching responsibility for the provision of safe and secure facilities and associated infrastructure for custodial and health services at correctional centres, including AMC.
· CHS has primary responsibility for providing health services for all detainees at the AMC and at such other places in the ACT as may be clinically appropriate for detainees.
· Winnunga AHCS will provide health and wellbeing services for detainees described as Winnunga AHCS clients in the Services schedule.
· Corrections will make treatment facilities (including physical space, Internet access for electronic record keeping, and escort arrangements) available so Justice Health and Winnunga AHCS can provide effective health and wellbeing services at AMC.
· CHS will manage equipment and treatment spaces associated with facilities from which Justice Health provides health services at AMC.
· Winnunga AHCS will manage equipment and treatment spaces associated with facilities from which Winnunga AHCS provides health services at AMC.
Schedule 1 to the MOU provides:
The MOU between the Director-General of the ACT Justice and Community Safety Directorate (DG JACS), CEO Canberra Health Services (CHS) and CEO Winnunga Nimmityjah Aboriginal Health and Community Services Ltd (Winnunga AHCS) about delivery of coordinated health care services to Aboriginal and Torres Strait Islander detainees in Alexander Maconochie Centre (AMC) is underpinned by a shared commitment to working together to ensure Aboriginal and Torres Strait Islander detainees:
· receive health care at the AMC in a holistic and culturally safe way, and
· have access to comprehensive Aboriginal health checks, chronic conditions care planning and coordination, mental health treatment and care planning capable of recognising trauma experiences by Indigenous people at the individual and collective level, and appropriate referrals to and collaboration with specialist and allied health professionals.
We make this Schedule to the MOU to describe the services to be provided by Winnunga AHCS.
(emphasis added by underlining)
In the provisions detailing the services to be provided by Winnunga, reference is made to Attachment “A” which is described as a “Winnunga AMC Clinic Registration Request Form.” This is the form pursuant to which a detainee might seek to become a patient, or client, of Winnunga. The form contains the following above the space for the detainee’s signature:
I request to be registered as a client of the Winnunga AMC Clinic.
I understand:
1.My records will be reviewed to assess my eligibility for the clinic, and I may not be accepted at this time.
2.If I am accepted Winnunga will provide me with GP and other primary health care services including medication prescription, managing my health and overall wellbeing as well as counselling.
3. Even if I am a Winnunga client, only Justice Health can provide:
· health assessment each time I am admitted to AMC
· dental care
· assessment after separate confinement, or if I am injured by the use of force, or following a self-harm incident
51.Section 32(1) does what Lord Hoffmann and the other Law Lords in Wilkinson said s 3 of the HRA does. It requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application. The Court of Appeal was essentially correct in its treatment of s 32(1).
(citations omitted)
I see his Honour’s approach as consistent with the comments of the other members of the High Court to which my attention was directed by Ms Dempster. It is also consistent with the requirements of s 139 of the Legislation Act 2001 (ACT).
In that context it is important to focus on the particular human rights which are relevant to the inquiry. Here, those rights are the right of a detainee to have been treated with humanity, and with respect for the inherent dignity of a human person, and in such a way as to avoid the denial of his/her cultural identity as an ATSI person. The defendants accept the latter right includes a need for protection of the right to cultural identity.
In relation to the right formulated by s 19(1) of the HRA I accept the statements of principle in the Castles decision relied on by the parties. The plaintiff’s status while she was in detention required that she be provided access to the health care which she would have access to in the community. It will be necessary for s 53 to be interpreted, so far as the text and statutory context allow, as to be compatible with that right.
In relation to s 27, I accept that s 53 must be interpreted (subject to the same qualifications) so as to be compatible with the protection of the plaintiff’s identity as an ATSI person.
As Mr Jeffrie points out s 53(1) operates by reference to an onerous level of obligation. The defendant “must ensure” that certain ends are achieved, and certain steps are taken to achieve those ends. I see paragraphs (a), (c) and (d) as falling into the former category, and (b) into the latter.
In relation to s 53(1)(a) the end to be achieved is that “detainees have a standard of health care equivalent to that available to other people in the ACT”. The word “standard” in the context refers to the meaning summarised as item 7 in the Macquarie Compact Dictionary as “a level of quality which is regarded as normal, adequate, or acceptable.” In the same dictionary, “available” is defined as “suitable or ready for use; at hand”.
There is force in the submission of the defendants that s 53 reflects the object stated in s 12(j) of the CMA. That is, that that “detainees must have access to suitable health services and health facilities”.
In that context s 53(1)(a) does require, as the defendants argue, that the defendant must ensure that detainees are provided with access to health care services of the same quality which they could access in the community. I accept, as the defendants submit, that the paragraph does not mean that in a specific case a detainee must be provided with a particular service identical in form or substance with a service which might be provided in the community. Rather, the paragraph requires that in a broad sense the detainee must have available to him/her the range of services which would be regarded as normal, adequate or acceptable in the ACT community. Such an interpretation is entirely compatible with the right stated by s 19(1).
In relation to s 27, such an interpretation is entirely compatible if the obligation is understood as being qualified by the requirement that, relevantly, an ATSI detainee is provided with access to the range of services which would be regarded as normal, adequate or acceptable for ATSI people in the ACT community.
I do not see the language used in s 53(1)(a), having regard to the context of the CMA as a whole, as consistent with achieving the purpose of requiring the provision of a specific medical service, such as an AHA, to an ATSI detainee. In so far as the plaintiff contended for such an interpretation, I reject that contention.
Section 53(1)(b) is, in my view, a mechanical provision which obliges the defendant to put in place “arrangements....to ensure the provision of appropriate health services for detainees.” The word “arrangements” is very broad. Having regard to the Macquarie Compact Dictionary, it comprehends the making of “preparations or agreements”. It is true that the requirement is for the defendant to take that step to “ensure” the provision of a particular quality of health service. “Appropriate”, as used here, in my view connotes “suitable or fitting for a particular purpose, person or occasion” (as defined in the Macquarie Compact Dictionary). Given the general scope of s 53(1), and the reference to “detainees” as opposed to a particular detainee, I see the obligation imposed under this paragraph as extending to the taking of steps to ensure that there are both medical staff and medical facilities available to detainees which are suitable, in the broad sense, having regard to their status as detainees. Again, I see such an interpretation as compatible with what Emerton J in Castles referred to as “the dignity right”.
As with s 53(1)(a), compatibility with s 27 is achieved if the obligation to make the specified arrangements is, relevantly, conditioned such that health services for ATSI people are those that are culturally suitable.
I should say that, again, I do not accept that the text of the provision, having regard to the CMA as a whole, can be read as requiring the provision by the defendant of a specific medical service as a matter of ordinary practise. The provisions of s 53(1) are stated at a far higher level of generality.
Mr Jeffrie, for the plaintiff, relied on s 53(2) to overcome the generality of s 53(1). It is true that the words “In particular” at the commencement of s 53(2) indicate the intention for this provision to be one of more specific application. Mr Jeffrie argued that s 53(1)(a) was of special importance. The reference to the requirement that the defendant must ensure access to “regular health checks” in the context of ss 19(1) and 27 of the HRA supported the plaintiff’s claim that she should have been provided with an AHA.
However, as pointed out by Ms Dempster for the defendants, the obligation is specifically stated to require the provision of “access” to regular health checks.
Having regard to s 19(1) of the HRA, and the context of s 53(1)(a) and (b) as discussed above, I conclude that s 53(2)(a) should be interpreted to impose the obligation upon the defendant to ensure each detainee is able to obtain health checks either within the relevant correctional centre, or if necessary, outside it, with the degree of regularity required having regard to all of the circumstances of that detainee. Compatibility with s 27 further requires that the access to such health checks should, for an ATSI person, when it is possible, be with a culturally appropriate medical service provider.
I do not see the remaining provisions of s 53(2) as altering my analysis of s 53(2)(a). It follows that I do not accept the argument of the plaintiff that s 53(2), in the context of the Act and the relevant sections of the HRA, mandated the provision to ATSI detainees of an AHA. However, it does seem to me that s 53(2)(a) did mandate the provision to such detainees of access to a culturally appropriate medical provider, such as Winnunga, for the purpose of health checks to be conducted with the regularity assessed as suitable by that provider for the particular detainee in question. Whether such a check should be an AHA would be a matter for the expertise of the relevant provider. I will return to this latter point below.
Interpretation of ss 67 and 68 of the CMA
Section 67 is clearly intended to impose a mandatory obligation on the defendant to have a reasonably comprehensive assessment made of each detainee “as soon as practicable” upon admission to a correctional centre. The assessment must include the detainee’s “...immediate physical or mental health...risks and needs”. Moreover, any such risks and needs must be addressed. Those which are ongoing must be addressed in the detainee’s case management plan.
Section 68 deals in greater detail with the assessment of the detainee’s immediate health risks and needs. Subsection (1) provides that the assessment must be made within 24 hours of the admission. Subsection (2) requires that the assessment is either carried out by a nurse, or by a doctor appointed under s 21 of the CMA. If the nurse performs the assessment, it must be reviewed by a s 21 doctor.
It is implicit in these sections that a detainee is obliged to participate in the assessment process. Clearly, the defendant would not be able to “ensure” that the assessment is made without that participation.
It is also clear from both the text of these sections, and the context, that the health assessment to be carried out is very much a preliminary one. This is suggested by the urgency (within 24 hours of admission), the fact that the assessment is directed towards “immediate” risks and needs and the provision for the assessment to be made by a nurse (albeit with review by a s 21 doctor).
Having regard to the view I have reached as to the human right formulated by s 19(1) of the HRA, it seems to me that the requirement of compatibility will be relevantly met if the obligation under ss 67 and 68 is for an assessment to be made by reference to the same standard of an equivalent assessment in the community. However, the very statement of that proposition highlights a difficulty. How does one compare a preliminary health assessment upon admission to a correctional centre with the types of health assessments which are made in a whole range of different circumstances in the community? Ultimately, that is a question of fact and degree which can only be addressed by reference to the evidence in each case.
In relation to s 27 of the HRA, it does seem to me that the obligation to respect and protect an ATSI person’s cultural identity requires that the assessment obligation under ss 67 and 68 be interpreted, in relation to the assessment of such a person, as requiring that that person have the opportunity to state whether he/she identifies as an ATSI person. In that context, the assessment should then take into account any particular health risks or needs associated with ATSI people. As I understand the submissions of the defendants, they concede such an interpretation; see DS paragraph 76.
However, I am not persuaded that the requirement for compatibility goes further. In particular, I do not see that the text of the sections, or the context of these provisions in the CMA, provide the basis for the implication of the requirement that the initial assessment consist of an AHA. Such an assessment must be carried out by a GP. It is a comprehensive and detailed assessment which, in my view, goes well beyond the preliminary assessment required by ss 67 and 68. I do not see the reasonable protection of a detainee’s ATSI identity requiring the implication for which the plaintiff contends.
In the circumstances of this case, did the defendant breach the obligations imposed by ss 53, and 67 and 68 of the CMA?
Section 53 of the CMA
Having regard to the evidence of Mr Stanhope and Professor O’Mara I have no hesitation in finding that the AHA is an important and useful component of the health care of ATSI people. I have found, at [226] above, that s 53 imposed an obligation on the defendant in relation to the detentions of the plaintiff to ensure that she had access to the range of medical services which would be normal, adequate or acceptable for ATSI people in the ACT community. It is reasonable to conclude that such medical services would include the availability of an AHA.
I accept the submission of the defendants that by reason of the arrangements which had been made with Winnunga, the plaintiff did have access to AHAs. Moreover, such assessments were available with what was clearly a culturally appropriate health care provider. These conclusions flow from the contents of the Services Funding Agreement (as varied) and the MOU. The relevant parts of those documents are extracted at some length above at [88]-[100]
This raises the question of why, given that the plaintiff had become the patient of Winnunga during each period of detention, an AHA was not carried out?
The evidence on this issue is not entirely clear. In relation to the first detention, it appears that the plaintiff’s transfer to the care of Winnunga was initially delayed until early December 2019 due to her engagement with the FMHS. Ordinarily, it would expected, that the transfer would occur three days after that engagement had ceased. Indeed, it appears a handover from FMHS to Winnunga was completed on 6 December 2019. The clinical notes of FMHS and JH seem to end at that point.
There is an entry in the Winnunga clinical notes on 6 January 2020 indicating that the plaintiff had been cleared from FMHS, and that the transfer could proceed to Winnunga. On 20 January 2020, the plaintiff consulted Dr Lord, a Winnunga GP. The clinical note refers to ongoing mental health issues with a review planned with FMHS. It also notes that the plaintiff had seen a Dr Fraser from JH in relation to low mood. (I could find no record of that consultation in the JH/FMHS notes.) Dr Lord then noted:
...check with FMH about her status and if all okay transfer to Winnunga on Friday as planned will need to perform health Check, physical examination etc then.
Dr Lord saw the plaintiff again on 3 February 2020. Her clinical note again records ongoing issues with depression, and treatment with FMHS, including specialist treatment. (It seems likely from this that there are notes missing from the JH/FMHS clinical record exhibited to the affidavit of Mr Maguire). Dr Lord recorded that she would follow up with FMHS in relation to the transfer to Winnunga, and as to the treatment plan for the plaintiff.
The plaintiff had a further consultation with Dr Lord a week later. The plaintiff’s mood had improved and Dr Lord noted that the transfer would occur “as planned” on 14 February 2020. Under the heading “Plan”, she recorded:
4.once transferred will need physical examination, Health Check, mental health plan and chronic disease care plan
The Winnunga notes thereafter record that the plaintiff’s treatment was taken over by Winnunga staff, with the plaintiff being seen almost on a daily basis by nursing staff, mainly in relation to medications. On 21 February 2020, the plaintiff saw Dr Lord, who appears to have carried out an examination including blood pressure, oxygen saturation, etc. The plaintiff is said to look “well”. There is no mention at that stage of a “health check” or “AHA”.
Thereafter, the next GP consultations in the Winnunga notes is that with a Dr Siddiqui on 15 April 2020 for a medication review. The plaintiff thereafter saw Dr Lord again on 11 June 2020. Dr Lord’s note suggests a long consultation which included a mental health assessment. A full blood examination was also ordered. Dr Lord apparently reviewed the blood results on 23 June 2020. There was an item of concern and the doctor noted that it would be necessary to have a review consultation with the plaintiff. Her note concludes:
4. needs GPMP and Care Plan, Mental Health Plan and Aboriginal Health Check
It appears from a note on 24 June 2020 that the plaintiff declined to attend Dr Lord for a review that day, however, she did see Dr Lord the following day. The consultation appears to have been focussed on the blood test issue.
Thereafter, the plaintiff was seen regularly by Winnunga nurses until her discharge from AMC on 28 July 2020. She then attended Dr Perera at the Winnunga clinic in the community on 30 July 2020 who conducted a full AHA.
In relation to the second period of detention, the plaintiff requested transfer to Winnunga in February 2021. Indeed, she saw a Dr Ochayi from Winnunga in consultation on 19 February 2021, although it appears as if the transfer was not formalised until 5 March 2021. From that time, the plaintiff was seeing Winnunga nurses for her medications on an almost daily basis. During this period of detention, the plaintiff saw Dr Ochayi again on 15 March 2021 and 30 April 2021. These consultations dealt with the particular concerns which the plaintiff had in relation to her health at those times.
There was some criticism of the delay in the transfer of the plaintiff’s care to Winnunga during each period of detention. Although the explanation is not as clear as it might be (possibly due to missing clinical notes from the JH/FMHS records), it appears to me that the delay in the first detention period probably related to ongoing mental health issues suffered by the plaintiff at that time. (As can be seen from the MOU the transfer would not be effected while the plaintiff was undergoing mental health treatment by FMHS.)
Once the transfer was effected, the plaintiff came under the care of Dr Lord, a Winnunga GP. While Dr Lord considered that an AHA would be appropriate for the plaintiff (I read the references to “Health Check” and “Aboriginal Health Check” in the notes as references to AHAs), it is apparent that she did not see any urgency in carrying out that assessment. During the various consultations which the plaintiff had with Dr Lord, it appears that the latter took and recorded appropriate histories and conducted appropriate examinations. She also ordered the tests which she saw as necessary.
Mr Jeffrie appeared to submit that the health care provided by Winnunga at this time fell below the standard that might have been expected in relation to an ATSI person in the community. I understood this to be the basis on which he suggested that the defendant was vicariously liable for the “failure” of Winnunga to provide an AHA, relevantly, during the first detention.
While, as noted above, the evidence of Professor O’Mara provides strong support for the use of AHAs in the health care of ATSI people, that evidence is pitched at a reasonably high level of abstraction. The Professor was not asked to review the specific care provided to the plaintiff, and I do not read his report as being critical of the standard of that care.
In my view, the evidence does not support the proposition that the health service provided by Winnunga during the first period of detention fell below the appropriate standard. Nor do I accept the submission that s 53 required the defendant (through Winnunga or JH) to have offered the plaintiff an AHA. The reality is that the plaintiff must have known from past experience that Winnunga had the capacity to perform an AHA. She had the option of requesting such an assessment, and she made no such request. More importantly however, it seems to me that the timing of an AHA was a matter for the exercise of the treating GP’s professional judgment. Dr Lord considered the issue and saw no need for the assessment to be performed during the time she was consulting the plaintiff. She noted her view that an AHA was appropriate, and that view was acted upon by Dr Perera just after the plaintiff’s release from the AMC. I am not prepared to find that Winnunga’s care of the plaintiff while she was in detention at that time fell below the standard of care which the plaintiff, as an ATSI person, would have received in the community.
I have come to a similar conclusion in relation to the second period of detention. I can see nothing in the notations made by Dr Ochayi to suggest that that doctor failed to provide adequate or appropriate care to the plaintiff on the occasions of the consultations in the period of February to April 2021. I do not consider that the desirability of an AHA, in the abstract, provides a sufficient basis for concluding that the care provided by Winnunga fell below the standard I have referred to in the preceding paragraph.
I do not see the obligation under s 53(2)(a) as assisting the plaintiff’s case. As is apparent from the clinical record relating to the plaintiff it is apparent that she was provided with ample access to medical care, including the availability of regular health checks, and with a culturally appropriate health provider.
In light of this analysis, it is not necessary for me to determine whether the defendant would be vicariously liable for a breach of the s 53 duty constituted by a failure by Winnunga to provide health care of the relevant standard, and/or which was appropriate in the circumstances. I conclude that the defendant did not breach the obligations imposed by s 53 of the CMA.
Sections 67 and 68 of the CMA
I have not accepted the plaintiff’s claim that the initial health assessment required by these sections was mandated to be an AHA. In that context, the question of whether the assessments actually carried out at or shortly after the plaintiff’s admission to the AMC complied with the obligations imposed be these sections must be answered by reference to my conclusions set out at paragraphs [236] and [237] above.
In relation to what Mr Maguire referred to as the “induction assessment”, I am satisfied that the particular circumstances of the admission process which he described must be taken into account in considering whether the assessments of the plaintiff at the commencement of each detention complied with the duty as I have formulated it in paragraph [236]. I accept that there is a degree of artificiality in attempting to compare the availability of a health care assessment in the community with what is a mandatory assessment of immediate health risks and needs at the commencement of a term of imprisonment. Nevertheless, it seems to me that s 19(1) of the HRA requires that the assessment required by ss 67 and 68 must be scrutinised in that light.
The difficulty here is that there is no expert medical evidence which specifically addresses the adequacy of the initial induction assessments, by reference to the standards of health assessments generally available in the ACT community. While Professor O’Mara provides strong support for the general importance of annual AHAs for the management of the health and wellbeing of ATSI people, he does not address the adequacy of the inductions assessments of the plaintiff having regard to the circumstances in which they had to be carried out.
Exhibit “RM5” to the affidavit of Mr Maguire contained copies of the blank forms to be used for the initial assessment of a detainee at the AMC. They are the forms identified at paragraph [50] above.
The forms actually completed in relation to the plaintiff’s first admission are contained between pages 587-611 of Exhibit “P1”. (A separate copy of the Health Assessment Form became Exhibit “D3”). Mr Maguire said in cross examination that the clinical observations recorded by these forms were “relatively basic”, and that a full AHA would be of assistance in managing the health of a detainee, I did not understand him to concede that the various assessments carried out of the plaintiff were in some way inadequate having regard to the requirements of ss 67 and 68.
Indeed, it is apparent from the clinical note of the induction assessment (at p pages. 463-469 of Exhibit “D1”) and the contents of the Induction Assessment Form, the Forensic Mental Health Induction Assessment Form, the Custodial Mental Health Induction Screening Form and the Suicide Vulnerability Assessment Tool that the assessment on 10 September 2019 was carried out by both a Registered Nurse and a psychologist. On the face of the records, the history-taking and scope of inquiry appears to be detailed and comprehensive, given that it was in the nature of a preliminary, screening assessment. In the absence of expert evidence pointing to some inadequacy in the process, I am not prepared to find that the assessment fell below the standard of what might be expected in a similar exercise in the community.
I note that the Health Assessment Form was completed by the psychologist on 21 September 2019. The explanation for that given by Mr Maguire is summarised at [63] above. That explanation was not challenged, and it appears to me that the process of conducting a more detailed health screening a week or so after the initial induction assessment is entirely consistent with the requirements of ss 53, 67 and 68 of the CMA.
While I accept that an AHA carried out at the time of admission, or more practically, at the time of the Health Assessment a week or so later, would represent an improvement in the process it does not seem to me that is the test. Sections 67 and 68, in the context of s 19(1) of the HRA do require that the initial health assessment be the best possible assessment which can be made in the community. I am satisfied that the assessment of the plaintiff’s health conducted on 10 September 2019 complied with the requirements of ss 67 and 68 of the CMA.
The evidence as to the initial assessment carried out at the commencement of the second detention is less clear. Item 4 of Exhibit “P1” is said to contain a copy of the records of ACT Health in relation to the plaintiff. The clinical progress notes at pages 535-542 appear to reflect the same process as was carried out at the time of the first induction assessment. However, only copies of the Forensic Mental Health Induction and Assessment Form Custodial Mental Health Induction Screening Forms are contained in the collection of forms at the end of the exhibit (at pages 660-663). Indeed, the latter appears to be incomplete. There are, however, extra copies of the 2019 Induction Assessment Form, and the Suicide Vulnerability Assessment Tool at pages 664-667 and 653-657 respectively. There is also another copy of the 2019 Health Assessment Form at pages 668-673. It seems likely that these documents have been incorrectly duplicated, and the 2021 equivalents omitted.
In any event, having regard to the contents of the 2021 records which are present, I am satisfied that the same process was carried out by appropriately qualified staff of JH and FMHS at the commencement of the 2021 detention as was carried out on 10 and 19 September 2019. For the same reasons for my conclusion in relation to the 2019 initial assessment, I am satisfied that the 2021 assessment complied with the requirements of ss 67 and 68 having regard to s 19(1) of the HRA.
In relation to the additional element of the initial assessment imported by s 27 of the HRA, it is apparent that the plaintiff was given the opportunity to express her identity as an ATSI person, and indeed to exercise her option of transferring her care to Winnunga at an appropriate time during her detentions. Having regard to the width of the screening process, it does seem to me that that any health vulnerabilities associated with being an ATSI person were identified as part of that process. Having regard to the way in which I have concluded that ss 67 and 68 should be interpreted by reference to s 27 of the HRA, I find that there was no breach of ss 67 and 68 in the initial assessments conducted at the beginning of the plaintiff’s detentions at AMC in September 2019 and January 2021 respectively.
Has the defendant acted consistently with ss 19(1) and 27 of the HRA?
Ms Dempster, for the defendant, submitted that if I should conclude that the defendant met his obligations under ss 53, 67 and 68 of the CMA, construed in the light of ss 19(1) and 27 of the HRA, then it would follow that he has acted consistently with the requirements of the HRA. There would thus be no need for further inquiry under ss 40B or 40C of the HRA.
I accept the logic underlying that submission. It seems to me, having regard to my conclusions as to the content of the rights under ss 19(1) and 27, and my findings on the question of whether the defendant breached his duties under the relevant sections of the CMA, that the answer to the fourth question to be addressed pursuant to the Hakimi decision (see [128] above) must be adverse to the plaintiff’s claim.
Conclusion
The plaintiff’s claim for relief in the Second Further Amended Statement of Claim ultimately turned on the proposition that by reason of ss 53, 67 and 68 of the CMA interpreted in the light of ss 19(1) and 27 of the HRA, or by reason of the HRA sections alone, the defendant was obliged to ensure that the plaintiff was offered an AHA during each of her periods of detention at the AMC. I have found against that proposition. It must follow that the plaintiff’s claim against the defendant fails.
Orders
The orders of the Court are:
(1) Judgment for the defendant.
(2) Subject to order (3), the plaintiff is to pay the defendant’s costs of the proceeding.
(3) In the event that either party notifies my Associate in writing that he or she seeks an order different from that in (2) by 4:00 pm on 24 December 2021 order (2) shall be suspended until further order.
| I certify that the preceding two-hundred and seventy-four [274] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: A Arnott Date: 17 December 2021 |
14
0