The Andrews government cannot identify any legislation it needed to override, but experts say that is the point.When Daniel Andrews signed a declaration for a state of disaster in Victoria at 1.43pm on Sunday, it was a part of a final salvo in a battle to control a resurgent and invisible enemy.
Failing children held on Nauru
In her time as a child protection worker on Nauru, she had grown close to her clients. Especially one young girl, thoughtful, sensitive and traumatised, who might as easily paint pictures of flowers as of her own image, covered in blood. This was common: children expressing their suicidal ideation with crayons.
Save the Children staff on Nauru worked rosters – individuals did three weeks on, three weeks off – and during a spell when the care worker with the closest relationship to her was back in Australia, the young girl attempted suicide by swallowing washing powder. She was flown to Australia, where she survived but suffered extreme chemical burns to her throat.
The girl had other carers, but the staff member partially blamed herself. Later, there were nightmares and intrusive memories. Before Save the Children’s contract ended on Nauru, before the Australian government wrongly accused staff of coaching asylum seekers to self-harm, staff were in a terrible bind. “It was a pretty absurd situation,” another former child protection worker told me this week. “The risks of harm to children are endemic to the environment, but you can’t remove them from it. Longer you stay there, the more demoralised you are. You’re the oval face of all this unmet need. Clients would say, ‘You can’t do anything for me.’ And they were right. This was the burnout point for me. Your hands are tied behind your back. It was all pretty futile.”
In late 2015, days before a challenge to the offshore detention centre’s legality in the High Court, the Nauru government announced that the camps would be opened – meaning the asylum seekers were free to move around the island without restriction. Advocates thought the timing suspicious – the camp could no longer be referred to as detention – but then immigration minister Peter Dutton said the move was inevitable and the timing coincidental. It was to this opening of the camps that Dutton referred this week in his public pitch for the prime ministership when he said he had removed children from detention.
In reality, most continued to live in the camps that were frequently referred to – in staff testimonies and the government’s own reports – as manifestly inadequate. Situated in the middle of Nauru, upon the moonscape of a heavily mined phosphate reef, the camps are hot, dirty, unsafe and lack privacy. But more, already traumatised children have suffered uncertainty and badly ailing parents. Children have attempted suicide and experienced psychotic episodes, and there are multiple allegations of sexual abuse.
None of this is new. It has been the subject of multiple reports. The last, a Senate inquiry report, in reference to the leaked “Nauru files” published by Guardian Australia, said: “Collectively, these reports paint the picture of a deeply troubled asylum seeker and refugee population, and an unsafe living environment – especially for children.”
Nothing has happened. Only days before Canberra’s leadership tumult, a large group of non-government organisations – including Oxfam and World Vision Australia – sought to revive the issue, calling for the children’s transfer by November 20, Universal Children’s Day. The federal shadow immigration minister, Shayne Neumann, wrote to Peter Dutton asking him to accept New Zealand’s offer to have the children and their families resettled there.
It followed professional claims of a health crisis among children on Nauru, including a stricken 12-year-old boy who had entered a near-catatonic state described as “traumatic withdrawal syndrome”. The boy had almost reached three weeks without eating – he was sustained intravenously – and doctors on the island said his condition was critical. It was day 19 of his acute withdrawal before the Australian Border Force permitted his whole family to join him in his medical transfer to Australia.
Many news reports referred to the boy’s “hunger strike”. Professor Louise Newman, a psychiatrist who has extensively consulted with children on Nauru, and whose reports have featured in multiple court judgements, told me this was wrong. The boy was experiencing traumatic withdrawal syndrome, otherwise known as resignation syndrome. “Hunger strike is not an appropriate description,” she said. “Hunger strikes are volitional. It’s not meant to do anything but to take a severe approach to achieve an outcome. Children don’t do this. We need to be clear that the motivation is unconscious, if you like – ‘I can’t deal with this situation’ – and then defensive mechanisms come into play, where literally they come unconscious. That’s when it’s life threatening.”
Other children are experiencing similar symptoms. On Wednesday, a 12-year-old girl set herself on fire – an act witnessed by other children. Adults intervened before her injuries were life threatening. The girl is being treated on Nauru.
“This is an indefinite emergency, and nothing should eclipse the evacuation of children,” refugee lawyer and advocate David Manne told me this week. “It’s urgent. It’s fundamental that the current political crisis does not in any way distract from this emergency. Children’s lives remain at risk, and their fate remains in the hands of the government.”
The Saturday Paper is aware of at least nine cases regarding the transfer of children alone where the government has denied medical transfers, choosing instead to legally contest injunctions.
In December last year, a young girl on Nauru – identifying details have been suppressed – attempted suicide by ingesting her mother’s prescription drugs. She was admitted to the local hospital complaining of respiratory distress, chest pain and abdominal pain. After her release, she was seen by a counsellor employed by International Health and Medical Services. In part, the counsellor’s clinical notes read: “When exploring her feelings about it she said, ‘the medication didn’t kill me, I will try something else.’ She stated, ‘I will kill myself with a knife or jump off the rocks.’ Explored it further and [she] also disclosed recurrent suicidal ideation. She reported that she knows how to kill herself, as she has seen in the movies people stabbing themselves with knives ... During consultation [she] disclosed that attempting suicide made her feel good.”
Lawyers and doctors appealed to the Australian government to have the girl transferred immediately to Australia for proper psychological care. The government refused. Lawyers then filed an interlocutory injunction in the Federal Court of Australia, where the legal test is twofold: one, that there is a serious question to be asked – in this case, of the urgency and appropriateness of medical treatment, and the government’s duty of care; and two, whether the “balance of convenience” favours the injunction being granted.
In February this year, the injunction was granted. In part, the judgement read: “The injury or damage the applicant may suffer if an injunction is refused – death or a further serious deterioration in her health – carries far more weight in the balance than the wasted expenditure the Commonwealth may suffer if an injunction is granted. Further, given the applicant’s extreme suicide risk, the relief sought in the proceeding may become nugatory unless the injunction is granted.”
“The truth is that the government has gone to extraordinary lengths to block children from being evacuated to Australia to get the emergency care they need,” Manne said. “The courts have been consistently satisfied that there’s a serious question to be asked of the welfare of these children – and that Nauru or PNG cannot provide either the proper environment or treatment for them.
“This is the sharp end and inevitable consequence of extreme deterrence policy. It becomes necessary to treat children as political pawns in this. Their health and lives become expendable. The mindset is that there cannot be a single act of compassion, not a crack of light or provision of care can be provided.”
The Australian government’s duty of care of those in offshore processing has never been definitively determined by a court – the successful injunctions merely uphold the fact that there are serious questions to be asked about medical welfare and duty of care. Last year, after repeated adjournments, the Australian government privately settled yet more litigation brought about by offshore detention. Majid Kamasaee v the Commonwealth of Australia would have been an enormous trial – there were more than 2000 plaintiffs who argued the government was negligent. Despite the government’s objections, the trial also would have been broadcast live, in recognition that most plaintiffs could not watch proceedings in person. Settled at the 11th hour, some lawyers saw a missed opportunity for the legal ventilation of these issues and a definitive ruling on the government’s duty of care.
The question of duty of care, however, was touched upon in two recent coronial inquest reports. Last month, Queensland coroner Terry Ryan ruled that the 2014 death of Hamid Khazaei – who was detained on Manus, and fatally succumbed to septic shock after a delayed medical transfer to Australia – was preventable and the result of “systemic failure”. He recommended that doctors – and not the Australian Border Force – have primacy over the decision to transfer patients, and that all offshore deaths, not merely those that occur on Australian soil, be subject to mandatory inquest. On the other side of the country, the West Australian coroner recently concluded an inquest into the death of Fazel Chegeni Nejad, a stateless refugee who committed suicide after having escaped detention on Christmas Island. The forthcoming report is expected to examine questions of negligence.
This week, Louise Newman wrote an explanatory piece for The Conversation on the syndrome she said was being exhibited on Nauru. “Resignation syndrome is a rare psychiatric condition that presents as a progressive social withdrawal and reluctance to engage in usual activities such as school and play,” she wrote. “Children may become isolated and appear depressed and irritable ... As the condition progresses, the child may stop talking and isolate themselves in bed, and may stop eating and drinking. The most serious stage of the disorder is when the child enters a state of profound withdrawal and is unconscious or in a comatose state.”
Sadly, it took a seemingly exotic syndrome to interest the media in the plight of these children. But the syndrome is not new, and neither are the conditions on Nauru that have given rise to it. “I’ve seen some media reports refer to it as ‘Sleeping Beauty disease’, which frankly I find offensive,” Newman told me. “Mute, incontinent children aren’t Sleeping Beauties.
“This is not new. And nor is it isolated to asylum seekers. One of the original terms was ‘pervasive refusal syndrome’. These children were hospitalised. They took to beds. There was a pattern of withdrawal and a common factor was various traumatising experiences when children had limited options.
“This is not surprising. And the political context this is occurring in is a government that is resistant to any expert advice. There is a systemic and cultural issue of victim blaming, minimising of risk, implications of children putting it on. The fact of the matter is that these children have been medivaced over because they’re in a dire situation. The likelihood is that we’ll see more of these cases, yet our professional judgements are called into question.”
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This article was first published in the print edition of The Saturday Paper on Aug 25, 2018 as "Failing duty of care".
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