S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs
[2005] FCA 549
•5 MAY 2005
FEDERAL COURT OF AUSTRALIA
S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs [2005] FCA 549
TORT – Commonwealth’s duty to provide mental health care services to indefinite detainees in immigration detention – non-delegable duty – scope and content of duty – relevant services provided by contractor and sub-contractors – alleged systemic defects in provision of mental health services – whether Commonwealth in breach of its duty
MIGRATION – immigration detention – special relationship of Commonwealth and detainees – duty of Commonwealth to ensure a level of health care is made available which is reasonably designed to meet detainees’ needs
MIGRATION – “immigration detention” – s 5(1) of the Migration Act 1958 (Cth) – relationship between Commonwealth and detainees – whether detention and holding by and on behalf of the Commonwealth
MIGRATION – “officer” – s 5(1) of the Migration Act 1958 (Cth) – whether Secretary relevant officer who owes duty of care to detainees – whether s 57 of Public Service Act 1999 (Cth) creates such a relationship
CONTRACT – outsourcing arrangements for provision of health care services – inadequate auditing and monitoring of service providers – Commonwealth’s failure to take reasonable care in provision of services
JURISDICTION – federal jurisdiction – injunctive relief sought unsuccessfully against an officer of the Commonwealth – cause of action in negligence against the Commonwealth within associated jurisdiction – Federal Court of Australia Act 1976 (Cth) s 32
Federal Court of Australia Act 1976 (Cth) s 32
Judiciary Act 1903 (Cth) s 39B
Mental Health Act 1993 (SA) s 12
Migration Act 1958 (Cth) ss 5, 13, 14, 48B, 189, 273
Public Service Act 1999 (Cth) s 57Al-Kateb v Godwin (2004) 208 ALR 124 discussed
Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 271 discussed
Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Mastipour (2004) 207 ALR 83 cited
Kondis v State Transport Authority (1984) 154 CLR 672 cited
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 cited
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 cited
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 cited
Wellesley Hospital v Lawson (1977) 76 DLR (3d) 688 cited
Howard v Jarvis (1958) 98 CLR 177 cited
Morgan v Attorney-General [1965] NZLR 134 cited
R v Deputy Governor of Parkhurst Prison; ex parte Hague [1992] 1 AC 58 cited
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 cited
Spicer v Williamson 132 SE 291 (1926) cited
Brooks v Home Office (1999) 48 BMLR 109 cited
Bowring v Goodwin 551 F 2d 44 (1977) cited
Knight v Home Office [1990] 3 All ER 237 citedAllsop, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aus Bar Rev 29
Balkan & Davis, Law of Torts (3rd ed, 2004)
Trindade & Cain, The Law of Torts in Australia (3rd ed, 1999)
Todd (ed), The Law of Torts in New Zealand (3rd ed, 2004)S v SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & COMMONWEALTH OF AUSTRALIA
File No SAD 21 of 2005
M v SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & COMMONWEALTH OF AUSTRALIA
File No SAD 22 of 2005
FINN J
ADELAIDE
5 MAY 2005
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
BETWEEN:
SAD 21 of 2005
S
APPLICANTAND:
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
5 MAY 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.the application against the first respondent be dismissed; and
2.the second respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
BETWEEN:
SAD 22 of 2005
M
APPLICANTAND:
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGE:
FINN J
DATE OF ORDER:
5 MAY 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.the application against the first respondent be dismissed; and
2.the second respondent pay the applicant’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
BETWEEN:
S 21 of 2005
S
APPLICANTS 22 of 2005
M
APPLICANTAND:
SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT
JUDGE:
FINN J
DATE:
5 MAY 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Paragraph Numbers
INTRODUCTION 1-3
A MATTER OF FEDERAL JURISDICTION 4
THE CLAIMS MADE 5-6
GENERAL BACKGROUND 7
(i)Baxter 8-10
(ii)Management Unit 11-17
(iii)Red 1 18-24
(iv)SASH watch 25-29
THE OUTSOURCING ARRANGEMENTS 30-36
GENERAL SERVICE PROVISION: GSL AND DIMIA 37-39
HEALTH SERVICE PROVISION: IHMS AND PSS 40
(i)The General Practitioners 41-44
(ii)The Psychiatrist, Dr Frukacz 45-49
(iii)The Psychologists and Counsellors 50-56
(iv)Accessing South Australian mental health services 57-58
AUDITING/MONITORING THE PROVISION OF PSYCHIATRIC AND PSYCHOLOGICAL SERVICES 59-64
THE SOUTH AUSTRALIAN MENTAL HEALTH ACT 65-66
BAXTER CRITICISMS 67-69
WITNESS ISSUES 70-74
THE SETTINGS OF THE CLAIMS 75
(i)S’s chronology 76-86
(ii)M’s chronology 87-95
THE APPLICANTS’ MENTAL HEALTH AND TREATMENT 96-98
(i)Applicant S 99-117
(ii)Applicant M 118-145
MATTERS OF CONTROVERSY 146
(i)The service providers’ loyalties and good faith 147-148
(ii)Detainee access to outside medical practitioners 149-153
(iii)Self-harm/hunger strikes, the IDS, and the provision
of psychiatric services 154-163
(iv)The Commonwealth’s treatment of adverse/conflicting
medical opinion 164-175
(v)Baxter v Glenside 176-184
(vi)The treatment opinions 185-194
THE STRUCTURE OF THE MIGRATION ACT AND “IMMIGRATION DETENTION” 195-203
THE APPLICANTS’ CASES AS PLEADED 204-206
THE COMMONWEALTH’S DUTY OF CARE 207-213
THE PARTIES’ CONTENTIONS 214-216
CONSIDERATION 217
General considerations 217-225
Matters of Detail 226
(i)The period to 12 February 2005 227
S 228-232
M 233-234
(ii)The period after 12 February 2005 235-240
S 241-244
M 245-256
CONCLUSIONS 257-264
- - -
INTRODUCTION
These two applications are a predictable consequence of the decisions of the High Court in Al-Kateb v Godwin (2004) 208 ALR 124 and Behrooz v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2004) 208 ALR 271. A majority of the Court in Al-Kateb held that the Migration Act 1958 (Cth) (“Migration Act”) on its proper construction authorised the indefinite detention of an unlawful non-citizen in circumstances where there is no reasonable prospect of removing that person from Australia. In Behrooz it was held that the conditions of immigration detention do not affect the legality of that detention. Nonetheless a clear majority of the Court accepted, to use the words of Gleeson CJ (at [21]), that:
“Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.”
See also McHugh, Gummow and Heydon JJ at [51]-[53]; Kirby J at [82].
The applicants, S and M, have each been in immigration detention in various parts of Australia for about five years. They are now in Baxter detention centre in South Australia (“Baxter”). Both have been diagnosed by psychiatrists as suffering major depression. The object of their respective applications is to compel their assessment for admission to a mental health facility under the Mental Health Act 1993 (SA) (“Mental Health Act”). In the event both S and M are now in such a facility. After S had given evidence during the hearing of his application, a medical practitioner made a detaining order under that Act. Shortly prior to my delivery of this judgment, the Commonwealth’s legal advisers communicated to the Court that M as well has been transferred from Baxter to a mental health facility.
In consequence there is no occasion for me now to grant relief on their applications. Nonetheless, as the following reasons indicate, I am satisfied not only that the applications were properly brought and maintained but also that, save for the transfers referred to above, the applicants had made out a case for appropriate relief. My reasons are stated in summary form in “Conclusions” below. The applicants are entitled to their costs.
A MATTER OF FEDERAL JURISDICTION
Of recurrent concern since their filing has been whether, in their various amended mutations, the two applications have attracted or have continued to attract federal jurisdiction: on which see generally, Allsop, “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Rev 29. Suffice it to say now that the Court’s jurisdiction to entertain these applications is no longer in doubt. While the causes of action relied upon by each applicant are founded on negligence, the relief sought is by way of injunction against either the Secretary, Department of Immigration & Multicultural & Indigenous Affairs (“DIMIA”) or the Commonwealth. The former claim clearly invokes federal jurisdiction, the injunction being “sought against an officer … of the Commonwealth”: Judiciary Act 1903 (Cth), s 39B(1). The latter claim, being associated with the claim against the Secretary, equally clearly falls within the associated jurisdiction conferred by s 32(1) of the Federal Court of Australia Act 1976 (Cth).
THE CLAIMS MADE
It will be necessary to outline in some detail later in these reasons the actual bases on which the claims of S and M in negligence are made against the Secretary or the Commonwealth. Suffice it to say for present purposes that it is claimed that the Commonwealth has breached its duty to ensure that reasonable care is taken of S and M in detention in relation to the treatment of their respective psychiatric conditions. That breach (or breaches) is not attributed to any specific acts of negligence on the part of their treating medical practitioners. Rather it is ascribed to systemic defects in the manner in which mental health services are provided in Baxter, which defects are responsible for the deterioration in the medical conditions of S and M with resultant increase in risk of self-harm or suicide. The breach alleged was said to be a continuing one.
The actual injunctions sought went through a number of mutations. During the course of the hearing I indicated to counsel for the applicants that the forms of order which had been sought and which were mandatory in character could well be found to be inappropriate in the circumstances: cf Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [3], [138]-[144]. In its last iteration what was sought in essence is an order restraining the respondents from so detaining the applicants as would prevent or inhibit their immediate presentation for assessment for admission to a mental health facility under the Mental Health Act.
GENERAL BACKGROUND
It is necessary to describe in some detail aspects (a) of the operations of Baxter; (b) of the Commonwealth outsourcing of the management of, and service provision at, Baxter; and (c) of the manner in which mental health services are provided. These provide the context in which the circumstances giving rise to these two proceedings have occurred.
(i) Baxter
Baxter, a purpose built immigration detention facility, is located 10 kilometres from the city of Port Augusta in South Australia on land previously used as a “bare-base” training camp for the Army. It is set in what a witness, Dr Malcolm Richards, described as “a very arid landscape” and commenced operations in September 2002. It contains nine separate, self-contained and secure residential compounds for detainees, these being differentiated by reference to colour and number (i.e. Red 1, 2 and 3; White 1, 2 and 3 and Blue 1, 2 and 3). The operations of the Red 1 compound (“Red 1”) are outlined below. Red 1 is used for what the General Manager of Baxter described as “behavioural modification purposes”. The evidence is that from most of the residential compounds while a detainee can see the sky he or she cannot see beyond the compound to the horizon.
Outside the detainees’ compounds are amongst other things a visitor compound; a double-peaked roof gymnasium (the site of a protest referred to later in these reasons); a management compound in which is located what is known as the “Management Unit” (a purpose built facility allowing for 24 hour observation of detainees and the operations of which are described below); and a medical compound. About 70 video monitoring cameras are located in the facility (including in the detention areas of the Management Unit). The perimeter is bounded by a wire fence that holds razor-wire.
At the time of the hearing, the nominal roll for Baxter recorded 326 detainees. It is the evidence of Ms Kannis, a DIMIA official and Manager of Baxter, that about one third of this number is made up of long-term detainee asylum seekers; that probably most of the detainees receiving psychiatric treatment and medication for depression come from that group; and that DIMIA has a significant mental health problem amongst that group. The causes and the significance of that problem are discussed later in these reasons.
(ii) Management Unit
The following is drawn, primarily from an extract of operational procedures formulated in October 2003 by DIMIA in consultation with its detention services providing contractor (“GSL”) and from the evidence of Mr James Williams, a DIMIA officer.
The Management Unit is a purpose built, self-contained, video monitored compound comprising (inter alia) 10 “accommodation rooms” that house detainees. An accommodation room is approximately three metres square. It is air-conditioned and heated and contains a window which admits light but has no view as it faces a wall. A mattress sits on the floor and bedding is provided to a detainee on arrival. There are no other furnishings and, apart from a change of clothes, detainees are unable to bring their personal belongings. An open doorway leads to a small bathroom containing a shower, hand basin and toilet. Detainees can have access to reading and writing material in their rooms if the Management Unit Review Team deem that appropriate.
Detainees in the Management Unit are subject to constant surveillance, both in their rooms and in the rest of the compound. In each room a closed circuit television camera oversees and records a detainee’s movements both inside the room and, via an aluminium mirror, partially inside the bathroom. Low level light allows observation at night.
Transfer to the Management Unit occurs at the direction of the General Manager, Mr Peter Saxon, after consultation with Ms Kannis and, where practicable, the Management Unit Review Team (“MURT”). This team is established by the General Manager and is responsible for managing, monitoring and reviewing on a daily basis individual cases of detainees housed in the Management Unit. It includes the Operational Manager, the Programs Manager, the DIMIA Manager, a Medical Representative and a Specialist Advisor such as a mental health professional. I would note that consultation prior to transfer is not necessary in an emergency situation where the health and safety of people are at serious risk, but reasons for not consulting must be documented within 24 hours of the transfer.
The stated general purpose of the transfer is to place a detainee in a regime of closer supervision when this is necessary to maintain the good order and security of the facility and the safety of other detainees. A transfer may result first, if a detainee is an immediate threat to the security and good order of the facility or a threat to their own or another’s safety, or second, as part of an ongoing case management strategy where other behaviour management strategies have been unsuccessful (for example where a detainee wilfully damages property or repeatedly refuses an order to cease violent and/or unlawful behaviour). The operating procedures specify that “under no circumstances will there be any element of punishment applied to the detainee” and that the special needs of the detainee must be identified and, if the behaviour has medical or psychiatric roots, appropriate medical treatment must be given. Ordinarily, a transfer to the Management Unit is on a short term basis only and alternative measures must be considered after 48 hours. Mr Saxon gave evidence that since November 2004 the longest period of time that a detainee had spent in the Management Unit was two weeks.
Detainees are allowed outside their room for a minimum of four hours a day. During this period they may access other parts of the Management Unit compound, which also comprises a recreation room, mess area, officers’ station and two enclosed exercise yards. The recreation room contains a television and board games. Officers who run educational programs deliver educational packs on request every two to three days. The mess area contains a sink, fridge, microwave, and fixed tables and chairs. Meals are delivered to the unit at each meal time. The officers’ station is equipped with a cordless phone and detainees may take personal telephone calls in their rooms or in the exercise yards. In the exercise yards detainees can also access sporting equipment such as balls and are allowed to smoke.
Communication with and visits from relatives, friends, community contacts or diplomatic, consular or legal representatives are provided for in the operational procedures, but are subject to restrictions for (inter alia) management reasons. Mr Williams gave evidence that it was “quite common” for detainees to have one-off, supervised visits from other detainees, but external visits other than those from the Red Cross, the Human Rights and Equal Opportunities Commission or the Ombudsman were “not normal”.
(iii) Red 1
Unlike the Management Unit, there are no written operating procedures specific to Red 1. The following is, as a result, drawn primarily from the evidence of Mr Williams and Mr Saxon.
DIMIA built Red 1 (also referred to as Redgum) in its current form following major fires in December 2002 but it was not put into active use until early in 2004 following GSL’s take over of services at Baxter.
As noted earlier, it is used primarily for behaviour modification purposes. Most transfers to Red 1 are from the Management Unit and occur with the support of the MURT as part of an individual management plan for transition back to a detainee’s usual compound. The level of surveillance is higher than that offered in the general compounds but is not as intensive as that in the Management Unit. Unless an emergency situation exists, transfer to Red 1 is made in consultation with Ms Kannis or her deputy. Mr Saxon makes the final decision.
Each accommodation room in Red 1 is air-conditioned and heated. A window overlooks a lawned area with shaded outdoor seating areas. A small bathroom has hot and cold running water. The compound also comprises a dining room with kitchenette and secured tables and chairs; recreation room with cable television, table tennis tables and pool tables; public telephones; laundry facilities; first aid station and an officers’ observation area that is staffed 24 hours a day.
Once transferred to Red 1 detainees move through up to four stages of a progressively less restrictive behaviour management regime. The compound is divided into “A” side and “B” side – generally “A” side is used for detainees in stages 1 and 2, while “B” side is used for detainees in stages 3 and 4. The stages are applied flexibly: it may not be necessary for a detainee to move through each stage. It is detainees’ compliant behaviour that allows them to short-cut or circumvent the process. Furthermore, the conditions outlined below are only minimum conditions.
An individual behaviour plan for stages 1 to 4 has been formulated for Red 1 and generally describes the stages of this form of detention. A detainee is held in stage 1 for seven days before a review by the MURT determines whether he or she has successfully completed the stage such that the detainee can progress to stage 2. During this period a small amount of personal property – personal clothing, reading and writing materials, religious articles and personal hygiene items – is allowed in rooms. Educational packs are supplied on request. Detainees are permitted outside their rooms during a “time out” period of four hours per day, which is divided into two parts. Incoming phone calls and one outgoing call during the time out period not exceeding 30 minutes in duration are allowed. Meals are taken in the recreation room. Personal and inter-compound visits are prohibited, while visits from DIMIA, the Red Cross, and religious, legal and consulate representatives are facilitated. The plan sets out a number of behavioural objectives that detainees are expected to meet – no assaults or threats to staff or other detainees, no use of abusive language, no major outburst or disruptive behaviour, compliance with all lawful staff instructions and no deliberate property damage. I would note that the plan provides for the detainee, detainee case management coordinator and Operations Manager to sign that the detainee has “reached a standard of behaviour which is acceptable to move on to stage 2”.
A detainee is held to stage 2 for seven days in the first instance. In this stage detainees are also permitted a transistor radio or stereo unit and other personal effects authorised by the Operations Manager. The “time out” period increases to six hours per day in three parts. During time out detainees can make two outgoing phone calls not exceeding 30 minutes in duration. They may also have two pre-approved visits per week, but cannot visit detainees in other compounds. After seven days their case is reviewed by the MURT and detainees may progress to the 14-day stage 3. In this stage detainees are permitted time out between 8am and 11pm, three pre-approved visits, attendance at church services, one visit to another detainee residing in Red 1, unlimited phone calls, one canteen purchase per week, access to recreational equipment and more personal property such as compact discs, and one electrical item such as a computer or television. Upon progression to stage 4, which extends for 31 days, detainees are permitted five approved visits per week and may make inter-compound visits.
(iv) SASH watch
The following is drawn from the evidence of Ms Kannis and of Ms Liz Hinton, the Clinical Director of Professional Support Services, the subcontracted supplier of psychological services.
On detainees’ initial inception into Baxter, their physical and mental health is assessed and staff are briefed as to any history of self-harm/suicide attempts or any physical or emotional abuse. All Baxter staff are said to be trained to recognise and respond to behaviours or state of mind that might suggest negativity or risk, such as apparent withdrawal, depression, agitation/aggression, projected hopelessness or helplessness, anxiety, restlessness, unfavourable detention decisions, and interaction with family and friends.
If a staff member has a concern about the possibility of risk they are instructed to cause the detainee to be placed on a suicide and self-harm watch (SASH watch”) plan. The management of the detainee then becomes the responsibility of the SASH watch team, which comprises a psychologist, a GSL case officer, a DIMIA officer and nursing staff.
Once a detainee is placed on SASH watch, GSL staff carry out observations at regular intervals and also engage in what is said to be “meaningful contact”. Specific observation plans are tailored to the assessed risk of a detainee self-harming. There are six levels of “watch observations”:
(i)Constant, which requires the detainee to be transferred to the Management Unit where staff maintain constant one-on-one supervision and submit an assessment report at least every 30 minutes;
(ii)Intensive, which requires the detainee to be transferred to the Management Unit where staff maintain observations at least every four minutes and submit an assessment report at least every 60 minutes;
(iii)Random, which requires staff to observe the detainee randomly six times per hour at least every 15 minutes;
(iv)Alert, which requires staff to carry out three meaningful interactions with the detainee each day;
(v)60 minute (also referred to as “60/60”), which requires detention staff to observe the detainee once every 60 minutes at random times; and
(vi)30 minutes (also referred to as “30/60”), which requires detention staff observe the detainee once every 30 minutes at random times.
The SASH watch team holds regular meetings concerning the management of the particular detainee. This is said to provide an opportunity to assess the need for a psychological, psychiatric or other specialist assessment. I should interpolate that there is only slender evidence before me of a SASH watch team actually considering the need for such an assessment of either of the applicants in these proceedings. The regularity of SASH watch team meetings is determined by the circumstances of each case, but is at least twice a week and in critical or life threatening situations ordinarily occurs once a day.
THE OUTSOURCING ARRANGEMENTS
Baxter was established and is maintained by the Commonwealth: see s 273(1) of the Migration Act. The Commonwealth has contracted for the provision of “detention services” (being the services described in Schedule 2 to the current Detention Services Contract) with GSL (Australia) Pty Ltd (“GSL”). Those services relate, essentially, to the day-to-day operations of Baxter as a detention facility. They do not extend to advising, deciding, etc about the immigration status of a detainee, or of a detainee’s removal from Australia.
GSL is required to meet specified Immigration Detention Standards (“IDS”) in its contract performance. Schedule 3 of the contract specifies in respect of services specified in Schedule 2 the relevant standard and its performance measures. These two schedules run to 160 pages.
For present purposes it is unnecessary to refer to the terms of the contract itself, although reference needs to be made to some of the provisions of the two schedules noted.
The Commonwealth acknowledged in Schedule 2 that it retains ultimate responsibility for detainees in Baxter: cl 4.1.3; that it owes a duty of care for each and every person in immigration detention and to ensure the safety and welfare of all detainees: cl 4.1.2. Part 16 of Schedule 2 deals with the information gathering, record keeping and reporting obligations of GSL and the monitoring to be engaged in by DIMIA. The “context” for these functions is set out in cl 16.1.1 in these terms:
“The Department’s duty of care in the detention environment is underpinned by the availability of timely, comprehensive and accurate information from the Services Provider about day to day activities. This duty of care extends not only to detainees, but also to staff, visitors and others who may have dealings with detention activities. Timely provision of information is required to enable the Department to assess whether this duty of care is being maintained by the actions of the Services Provider, and to facilitate monitoring and performance assessment of the Services Provider.”
Part 7 of Schedule 2 describes the context for the “Health care”, IDS and performance measures. Clauses 7.1.1 to 7.1.3 include the following:
“7.1.1The Department expects that detainees should be able to access either in a facility or externally, a level and standard and timeliness of health services, including optical and dental services, broadly consistent with that available in the Australian community, taking into account the special needs of the detainee population: emphasis added.
…
7.1.2The level of primary health care services available to detainees in detention facilities should sit broadly within the norms of primary health care available to members of the Australian community through a General Practitioner or a community health centre. In some instances treatment may not be able to be provided within the facility and detainees will require referral to specialists or to use hospital outpatient services. Detainees may also at times require admission to hospitals or residence in facilities other than detention facilities. It is the responsibility of the Services Provider to ensure that while detainees are undergoing treatment or using medical facilities outside the detention facility, they remain lawfully detained.
7.1.3The Services Provider will be responsible for costs associated with medical treatment within a detention facility, at a day care facility, at hospital outpatients and for referral to specialists. Where a detainee is admitted to a hospital, the Department will be responsible for the costs. However, this will be considered on a case-by-case basis, having regard to protocols that are being developed, and in some circumstances the Services Provider may be responsible for the costs of hospitalisation. The Services Provider must protect Commonwealth interests by ensuring that detainees get proper preventative and remedial primary health care to the extent possible and that hospitalisation only occurs in appropriate cases”: emphasis added.
Three of the standards set out in Schedule 3 require particular note in light of the cases advanced by the applicants. I should indicate that in the following quotations the relevant standard is to the left, the performance measure to the right. Under the headings “Care needs” and “Health” is a detailed listing of standards and measures which includes the following:
“2.2.1.1 General
2.2.1.1.1
Detainees are able to access timely and effective primary health care, including psychological/psychiatric services (including counselling):
· in a culturally responsive framework; and
· where a condition cannot be managed within the facility, by referral to external advice and/or treatment.
(a) No substantiated instance of a detainee not having access to health care of this nature.
2.2.1.1.2
In establishing the health care service, the Services Provider:
· ensures services are delivered by qualified, registered and appropriately trained health care professionals;
· develops and implements a health care plan for each facility; and
· draws on the advice, knowledge and experience of a health advisory panel.
(a) The Department is provided with evidence on a monthly basis that the health care service is available and accessible.
(b) No substantiated instance of health care staff not being qualified, registered and appropriately trained.
(c) No substantiated instance of the centre health plans not being implemented, effective or reviewed periodically.
(d) No substantiated instance of advice of the health advisory panel not being drawn on.
…
2.2.3.4 Self-harm
2.2.3.4.1
The potential for detainees to self-harm is minimised, to the fullest extent possible.
(a) Evidence is provided to the Department that strategies are in place and implemented to minimise the potential for detainees to self-harm.
2.2.3.4.2
Detainees who self-harm or attempt self-harm are provided with medical assistance as soon as possible and, post-incident, with ongoing appropriate treatment including but not limited to psychological/psychiatric assessment and counselling.
(a) No substantiated instance of any such detainee not being provided with appropriate and timely treatment.
…
2.2.3.5Hunger strikes
2.2.3.5.1
Hunger-striking detainees are provided with health care consistent with the law and standard medical and psychiatric practices, and commensurate with their needs, including, where required, medical treatment.
(a) The Department is provided with evidence that a strategy is in place and implemented for identifying whether detainees are taking adequate sustenance.
(b) No substantiated instance of a hunger-striking detainee not being provided with health care in an appropriate, lawful, and timely way.
2.2.3.5.2
Post-incident and as required, detainees who have been on a hunger-strike have access to ongoing medical treatment, including but not limited to psychological/psychiatric assessment and counselling.
(a) No substantiated instance of a detainee who has been on a hunger strike not having access to ongoing medical treatment.”
GSL discharged its contractual obligation to provide the required health care services to the Commonwealth by, in turn, contracting out the provision of those services to two companies, Professional Support Services (“PSS”) which provides psychological care services, and International Medical Health Services (“IHMS”) which provides general medical services. The actual sub-contractual arrangements between these various parties are not in evidence. What is clear is that at all relevant times IHMS in turn contracted with others to provide medical services at Baxter: a Port Augusta medical practice, Carlton Medical Practice, was engaged to provide general practitioner services; and a psychiatrist, Dr Andrew Frukacz, a private practitioner from Bathurst in New South Wales, was engaged to provide psychiatric services.
GENERAL SERVICE PROVISION: GSL AND DIMIA
The Commonwealth’s contract with GSL contemplated that DIMIA would maintain its own staff onsite at Baxter. Ms Kannis (the DIMIA Manager at Baxter) has given evidence that she has 12 DIMIA staff members under her of whom 8 perform administrative functions which include monitoring GSL’s compliance with its contractual obligations and standards while the remaining 4 are responsible for the case coordination of all detainees residing at Baxter. These case coordinators have not been a significant presence in the evidence given in these applications notwithstanding that Ms Kannis describes their “aim” as being to see their respective case detainees regularly (i.e. every four to six weeks) “to ensure their needs are being met”. However, Ms Kannis did go on to observe that detainees are not obliged to meet with case coordinators.
Additionally, DIMIA officers both from Canberra and onsite conduct scheduled formal audits of the facilities and services provided by GSL. It is Ms Kannis’ evidence to which I will return below that this formal audit program has not as yet been extended to the psychiatric and psychological services provided at Baxter.
Mr Saxon has held the position of General Manager since November 2004. GSL maintains under Mr Saxon, variously, a night shift staff of 24 persons and a day shift staff of 53. The evidence is that, consistent with the Detention Services Contract, GSL staff patrol the centre; are the persons most seen by detainees in their residential compounds; maintain order and security in the centre; and man the Management Unit and Red 1 when either is in use. It would appear that much that is done by the GSL staff must comply with DIMIA prescribed “Operating Procedures” some number of which have been referred to, or actually put, in evidence. As noted earlier the use of, and the transfer of detainees to, the Management Unit but not Red 1 are governed by such procedures.
HEALTH SERVICE PROVISION: IHMS AND PSS
IHMS provides Baxter’s medical centre with a health services manager, six registered nurses with a varying range of work experience (which in the case of two includes mental health and psychiatric nursing) and one enrolled nurse. The general practitioner services provided through its sub-contractor, Carlton Medical Practice, consists of one general practitioner (“GP”) on site at Baxter from 1 pm to about 4 pm on week days. Additionally a GP is on call and available for telephone consultations and to attend Baxter or the Port Augusta hospital as necessary outside business hours. No officer or employee of IHMS gave evidence in these proceedings. Psychological and counselling services are provided by PSS. No “on the ground” psychologist or counsellor gave evidence.
(i) The General Practitioners
Dr Bezhad Schroff, who is a principal of the Carlton Medical Practice, gave evidence of the GP services provided at Baxter. He indicated that as various GPs from the practice attended Baxter for detainee consultations, each’s consultation notes were kept in a common electronic file that was accessible to the other GPs. That file is not kept by the Carlton Medical Practice but by IHMS at Baxter (“the IHMS notes”). The notes kept by PSS psychologists and counsellors on the PSS electronic file (see below) are sometimes provided to the GPs for a consultation, and sometimes not.
The detainees to be seen by a GP at a particular consultation are not determined by the medical practitioner in question. Dr Schroff said this was a matter of concern for him “but that is not for me to decide”. While he makes recommendations about who needs care, whom he sees “is a different scenario”. Each day the visiting GP is provided with a list of patients prepared, it would seem, by the IHMS nurses and the PSS staff: “they will bring us the patients that they want us to see”. Asked whether, if a particular patient needed to see a GP because his condition has got worse or his depression was not responding to treatment, that person’s name would be on the consultation list, Dr Schroff replied:
“I would say as confident as I could have the necessary – I would say faith in the staff that is working with me.
…
My confidence is directly proportional.”
He went on to indicate that:
“… there are times where we have asked a patient to be seen and they may or may not be on the list.”
Dr Schroff’s understanding of how patients were referred to the GPs is supported in the following passage of Mr Saxon’s cross-examination in the context of mental health service provision to a detainee threatening self-harm:
“Do you know that the Mental Health Act in South Australia allows only a general practitioner or a psychiatrist to detain someone under the mental health legislation in this state?---I’m aware of that, yes.
So you know that if someone is threatening to harm themselves, it is only a doctor – whether it be a psychiatrist or a general practitioner, but only a doctor – who can detain someone? You know that?---I’m aware of that, yes.
Do you say it’s not standard operational procedure for someone who has threatened to harm themselves, or take their lives, to be referred to a doctor or a psychiatrist? Where does that standard procedure come from? Is that written down somewhere in relation to how you operate?---Not that I’m aware of. The referrals are made by the psychologist, IHMS and our case manager. Now, more often than not the doctor becomes involved somewhere down the track. I’m not aware of any document that says they will not go and see the doctor. I mean, you’ve got health professionals who are employed. If they are concerned then they will refer to the doctor.”
The GPs provided general practice mental health treatment. Dr Schroff indicated that he never spoke to the visiting psychiatrist, Dr Frukacz, and was never at Baxter when he was there. He acknowledged that the GPs were seeing a “lot of patients who were under psychiatric medication” and that they would review that medication in light of their assessments. They participated in the psychiatric treatment of detainees. He considered that about 10 to 15 per cent of the detainees were on major anti-depressant medications. He also acknowledged that the GPs were the only medical practitioners who were regularly at Baxter and who were able to make an order for the detention of a mentally ill person under s 12(1) of the Mental Health Act.
(ii) The Psychiatrist, Dr Frukacz
Dr Andrew Frukacz, who resides in Bathurst New South Wales, has a contract with IHMS to provide psychiatric services to Baxter detainees. He is the only medical practitioner contracted to provide such services and he was not aware of any contingency plan for another psychiatrist to visit in his absence. He has been asked by DIMIA and IHMS to visit more often but is unable to do so. While it is his evidence that he visits every six to eight weeks on Saturdays, his actual visits in the periods of present relevance were in August 2004, November 2004, 12 February 2005, 19 February 2005 (described as “not normal”) and 29 March 2005 (for the purposes of this litigation). His next visit was booked for 16 April. IHMS staff arrange who he is to see prior to his arrival at Baxter and sometimes an appointment to review a particular patient is arranged at his request. He sees 10 to 15 patients per visit.
He considered that the service he could provide Baxter at the moment was “not ideal” but was the best he could provide in a remote community. In terms of regularity of follow-up consultations a detainee would not get the same standard of care as would private patients in his home town. He considered that:
“… the distinction has to be made between what is available in particular areas because, certainly where I work – and it is predominantly rural remote areas – that is sufficient and we do have to rely on other staff to carry through in the intervening period. I don’t think we can compare realistically the care that people get in a remote area with the resources that are available in a major metropolitan area.”
Dr Frukacz accepted in relation to long-term detainees at Baxter that a large percentage of them have psychiatric illness and that this was greater than in the general community. He had between 20 and 30 patients at Baxter at the time of these proceedings and they were mostly long-term detainees.
It would seem that Dr Frukacz has not personally made an order under s 12 of the Mental Health Act for the detention in Glenside of a mentally ill person. He has, though, made recommendations in his reports that a person may be assessed and treated in a hospital environment if they do not improve. He would expect that the PSS people would act on his instructions but he accepted that he was aware in relation to a detainee not a party to these proceedings that a recommendation he had made in November had not been carried out by February. He accepted that he relies all the time on the opinions of the professional staff who work at Baxter.
Dr Frukacz indicated he was aware of criticism in the psychiatric community at large about the level of psychiatric care in Baxter. He would like it to be better but he would equally like such care to be better in rural and remote towns. He indicated he had never been consulted by DIMIA or by GSL about how the conditions of detention or the condition of the health service might be changed to improve the mental health of detainees.
(iii) The Psychologists and Counsellors
PSS employs a full-time psychologist, Ms Margaret Cowper, at Baxter. She was formerly employed in the same capacity by Baxter’s previous detention services provider, Australasian Correctional Management Pty Ltd. She is on duty week days from 9am to 5pm. She conducts or else attempts to conduct individual consultations with detainees and is available for appointment by detainees.
Though Ms Cowper figures significantly in the documentary records that have been tendered (many being her own notes of consultations and attempted consultations with S and M), she was not called to give evidence. I will refer again to this matter.
The evidence, such as it is, of the psychological services provided at Baxter was given by Ms Hinton, the clinical director of PSS who is based in Melbourne and visits Baxter every six to eight weeks. She was the direct supervisor of Ms Cowper. She described Ms Cowper’s role as including the following:
“9.1conducting individual psychological assessments, preparing psychological reports and offering treatment to detainees as required. Referrals to Ms Cowper can be made by the counsellor, IHMS, the General Practitioner, GSL case officer or DIMIA officer. Detainees wishing to see Ms Cowper can make a direct appointment/self-referral;
9.2attending team meetings and liaising with PSS management, detention staff and the health services team at meetings to discuss detainees with special needs, including meeting with the Suicide and Self Harm (“SASH”) watch team and special needs case management meetings are held once to twice per week for detention centre and medical staff to discuss special categories of cases involving children, women, detainees with notable medical and/or psychological conditions, elderly detainees, detainees at risk of self harm, long term detainees and the like;
9.3case management including planning, referral and liaison with other health care specialists; …”
Between April 2004 and January 2005, PSS employed Mr Adam Micallef as a full-time psychologist at Baxter. PSS also employs a full-time counsellor, Ms Robyn Walker, at Baxter. Among her responsibilities is the making of daily visits to the detainees’ compounds. She is thus able to observe detainees on a daily basis.
PSS maintains an electronic file in relation to each detainee which records all case notes created by the psychologists and the counsellor (“the PSS notes”). These notes do not record all contact between PSS staff and detainees.
It is Ms Hinton’s evidence that PSS records are not accessible by other staff at the detention centre, though information held by PSS is exchanged with detention staff at regular special needs case management meetings and through other informal discussions, Ms Kannis’ evidence on this matter is somewhat different:
“Do you have access to the PSS notes?---Yes, I do.
Are you sure about that? You can actually see the PSS notes, you and DIMIA? You can see them?---Well, I can go across to the PSS office and have a look at them on the system or – I haven’t got direct access to the system, but if I request I can be shown them and if I request printouts I receive those.
Is that a matter of course? Is that something you normally do?---In cases that come to my attention, I do.
And there’s no problem with handing those notes over? The PSS are quite – they’re quite open with handing over the notes to you?---Well, PSS want to know what use will be made of them, because they’re very careful about confidentiality of the reports, but they have no problem handing them over to DIMIA.”
I should indicate in passing that I have not found Ms Hinton’s evidence to be of assistance in resolving the issues that arise in these proceedings. She was not a treating psychologist in either matter. Her evidence was general in character and lacked familiarity with detail.
(iv) Accessing South Australian mental health services
Ms Kannis’ first affidavit sets out in some detail the options available to the health services at Baxter in the event of “an emergency psychiatric situation”. These included the possible accessing by the GPs or a psychologist of psychiatric assessment for a detainee on the recommendation of the on-call psychiatric registrar of the State’s Rural and Remote Psychiatric Health Service. I will later note the general significance Ms Kannis appears to have attributed to the availability of this option.
For her part Ms Hinton made several quite general references to the psychologists being able to arrange a psychiatric assessment in the absence of Dr Frukacz: “[w]e’ve got a relationship with the South Australian Mental Health Services”. She did not enlarge upon or illuminate the nature of that relationship.
AUDITING/MONITORING THE PROVISION OF PSYCHIATRIC AND PSYCHOLOGICAL SERVICES
As I have already indicated, the Detention Services Contract envisages that there be auditing and monitoring of the detention services GSL has contracted to supply. There has been general evidence given concerning the “oversight”, “monitoring” and “investigation” that occurs. Save in relation to electronic monitoring and visual observation by Baxter staff, the processes that have been described are for the most part ad hoc involving responses to, or investigations of, particular incidents etc., or else compliance with specified procedures, for example, record maintenance.
The evidence of DIMIA’s actual auditing of services by a process of formal examination and verification of performance goes no further than that DIMIA instituted a formal audit of services only from January 2005. A Health Care Audit was completed in February 2005. That audit did not deal with the provision of psychiatric or psychological services at Baxter. While Ms Kannis has said that DIMIA makes frequent inquiries about the treatment of individual detainees and that matters of concern are brought to the attention of GSL at weekly monitoring meetings, there is no evidence at all of any critical evaluation having been made by DIMIA of the adequacy and effectiveness of the medical, psychiatric and psychological services provided to detainees. In these matters, Ms Kannis has said she has to go on the opinion of the experts who provide the services.
Insofar as concerns GSL’s auditing of its sub-contractors, it is Ms Hinton’s evidence, supported by Mr Saxon for the period that he has been General Manager at Baxter, that there has been no audit of PSS’s services. Ms Hinton said that PSS has monthly sub-contractor meetings where any contract issues are discussed: “[t]hat’s the main way that they, I guess, monitor our service”.
Mr Saxon’s evidence is that there had been no “physical audit” conducted of IHMS’s psychiatric services though GSL did audit compliance with operating procedures “that are set down and agreed to by DIMIA and GSL” but that, “at this point in time, the health and PSS procedures have not yet come to be [sic]”.
As earlier indicated, Dr Frukacz has at no stage been consulted by DIMIA or by GSL about how the conditions of detention or the condition of the health services might be changed to improve the mental health of detainees.
Equally it is Dr Schroff’s evidence that he has never been consulted by DIMIA or the health service staff about the provision of psychiatrists to Baxter when Dr Frukacz was not available or about the availability of a psychiatrist to come and assess people.
THE SOUTH AUSTRALIAN MENTAL HEALTH ACT
Section 12 of the Mental Health Act provides the backdrop to these proceedings, the premise of which is that a detention order made under it will result in the psychiatric assessment of the applicants at Glenside which is an approved treatment centre under the Act. The section provides (insofar as presently relevant) that:
“Orders for admission and detention
12.(1) If, after examining a person, a medical practitioner is satisfied –
(a)that the person has a mental illness that requires immediate treatment; and
(b)that such treatment is available in an approved treatment centre; and
(c)that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons,
the medical practitioner may make an order for the immediate admission and detention of the person in an approved treatment centre.
(2)An order under subsection (1), unless earlier revoked, expires three days after the day on which it is made.
(3)A person admitted and detained in an approved treatment centre pursuant to an order under subsection (1) must be examined by a psychiatrist -
(a)if it is practicable for the examination to take place within 24 hours of admission – within that period; or
(b)if it is not practicable for an examination to take place within 24 hours of admission – as soon as practicable after admission.
(4)When the psychiatrist has completed the examination –
(a)he or she must, if not satisfied that the continued detention of the patient is justified, revoke the order; or
(b)he or she may, if satisfied that the continued detention of the patient is justified, confirm the order.
(5)If an order for detention has been confirmed under subsection (4), a psychiatrist may, before the order expires and after examination of the patent (which should be carried out during the 24 hours prior to that expiry), make an order for the further detention of the patient for a period not exceeding 21 days commencing on that expiry.”
The Act makes further provision for continuing detention of a patient.
BAXTER CRITICISMS
Adverse comment about the Baxter mental health care system has emerged in a variety of ways in this matter. First, reference has been made on a number of occasions to the situation of Ms Cornelia Rau while she was detained in Baxter. I simply note that I have taken no account of evidence concerning Ms Rau. It is no assistance to me. Secondly, I have taken no account of alleged media criticism of the mental health services at Baxter by former Baxter employees. Those ex-employees have not given evidence and the substance of their criticisms has not been revealed. Thirdly, in seeking to impugn the impartiality of two psychiatrists called by the applicants, Dr Jon Jureidini and Dr Michael Dudley, the respondents have tendered an article, an interview and a letter to the editor for which one or other or both is responsible which are highly critical of, amongst other things, the mental health care provided at immigration detention centres in Australia. I refer below to my view of the impartiality of these witnesses. Here I merely wish to note the fact of them and to note two of these publications which, I infer, were known to the Commonwealth within a reasonable time of their publication.
The first of these was a letter by a group of psychiatrists (including Drs Jureidini and Dudley) published in the Australian and New Zealand Journal of Psychiatry in November 2004 which amongst other things noted with endorsement that the College of Psychiatrists (i) have had a sustained and outspoken stance criticising current immigration detention policies; (ii) has called repeatedly for an independent review of the conditions in detention centres and their impact on detainees’ mental health. It notes that the latter appeal has been ignored and that there has been no indication that the Australian Government has listened to the advice of any College member about their concerns regarding immigration detention.
On 11 February 2005 the “Australian” newspaper published an interview with Dr Jureidini under the heading “Baxter ‘failing mentally ill’” in which Dr Jureidini is reported as having said, amongst other things, that Baxter detention centre staff were unable or unwilling to diagnose acute mental illness and to request suspected cases be removed to a South Australian mental health facility.
WITNESS ISSUES
The independence and/or impartiality of various witnesses have been called into question in each of the proceedings.
As I have noted above, the respondents have impugned the impartiality of the medical practitioners called by the applicants on the basis that they appear to be advocates for a cause. In particular it is said of Drs Jureidini and Dudley that they hold and have publicised the view that indefinite immigration detention jeopardises mental health. Their respective reports in these proceedings recommending the assessment of the applicants at Glenside must, it is said, be discounted because of this.
For my own part, having listened to the evidence of these two specialists, to the reasons for their view, but particularly to the bases for their diagnoses of, in Dr Jureidini’s case, both S and M and in Dr Dudley’s case, of S, I am well satisfied that the challenge made to their impartiality is without foundation. As many professionals recognise on a daily basis, they are called upon to, and do, make professional and impartial judgments in relation to their area of expertise notwithstanding that they entertain strong, even passionate views about the subject matter of their judgment or of the context in which it is to be made. I consider that the actual professional impartiality of the two doctors has not been compromised by their publication of their views.
The independence of the respondents’ professional witnesses has likewise been challenged in large measure because of the contractual and employment arrangements that are said to underpin their service provision. On the material before me, this imputation cannot fairly be made against either of the respondents’ medical experts who were called (Dr Frukacz and Dr Schroff) or against Ms Hinton.
I have already indicated that I have found Ms Hinton’s evidence of limited assistance for other reasons. I should add I have taken a like view of aspects of Ms Kannis’ evidence. Her evidence is affected markedly, as I will indicate, by rationalisation and reconstruction, by unwarranted or inappropriate faith and hope in others and by inconsistency.
TH SETTINGS OF THE CLAIMSE
There are both similarities and differences in the circumstances giving rise to the claims of each applicant. As the respective medical conditions of the applicants and the psychiatric diagnoses made and treatments provided them are central to their cases, it is not necessary to give a particularly detailed factual account of the events and circumstances of their detention.
(i) S’s chronology
As earlier indicated S has been in immigration detention for nearly five years in various locations in Western Australia before being sent to Baxter.
S had committed acts of self-harm on a number of occasions prior to December 2004. These involved him variously in cutting his arms and chest, apparently with a razor while detained in Perth and cutting his head by putting it into a window while in Baxter. The latter incident was a consequence of his damaging a shower out of frustration (“I just lost it”) and then being taken by GSL guards whom he said beat him with batons.
As a result of that incident he was taken to the Management Unit for what he described as “punishment” in what he also described as “solitary confinement”. He thinks he was there for over a week.
In April 2004 S was involved in a further incident concerning the proposed conduct of his brother’s wedding. There is a conflict in the evidence between S and the Commonwealth and GSL over the genesis of this incident and of the steps that were taken to quell it. It is unnecessary to resolve that conflict. Its consequence was that he was again placed in the Management Unit for a week after which he was put in Red 1 where he was kept for about two months. In his oral evidence he described Red 1 as “terrifying”. He indicated he was frightened of going either to Red 1 or to the Management Unit.
Towards the end of 2004 S’s own marriage plans fell through. He became very distressed and sought assistance from the psychologist, Mr Micallef. He was put into the Management Unit for one day and then on SASH watch.
In early December 2004 he says he again engaged in an act of self-harm this time involving cutting his neck following alleged ill-treatment of a friend by GSL guards. The following day (i.e. 7 December 2004) S together with M and P (who also instituted similar proceedings to the present) commenced a hunger strike on the roof of the gymnasium. The roof top “protest” lasted until the night of 16 December 2004. A number of detainees on the ground also participated in the hunger strike. There is again a conflict between S’s and the respondents’ evidence as to alleged harassment of the roof top protesters during the strike. It is unnecessary to resolve that conflict.
S denied he engaged in the protest to advance his prospects of obtaining a visa. The roof top protesters came down in circumstances outlined in M’s case. All three participants were adversely affected physically by their experience, this involving at least dehydration and severe sunburn. They were taken to Port Augusta hospital for treatment for about two days before returning to Baxter where S was again on SASH watch.
I will order in both proceedings (SAD 21 of 2005 and SAD 22 of 2005) that the application against the first respondent be dismissed and that the second respondent pay the applicants’ costs of the application.
I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate:
Dated: 5 May 2005
Counsel for the Applicant: Ms C O’Connor with Mr M Manetta Solicitor for the Applicant: Legal Services Commission Counsel for the Respondent: Ms S Maharaj with Mr R Prince Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 April 2005, 4-5 April 2005, 7-8 April 2005,
11-12 April 2005Date of Judgment: 5 May 2005
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