First do no harm: Children in detention and duty of care
Are doctors ethically obliged to keep at-risk children out of detention?
David Hunter, Flinders University
Doctors and other medical staff at Melbourne’s Royal Children’s Hospital are refusing to discharge refugee children back into detention. They feel it is an unsafe environment that would be detrimental to their health.
This follows a case earlier in the year where staff refused to discharge an asylum seeker and her child who had been flown in for treatment from Nauru in late 2014. The mother was suffering post-traumatic stress and post-natal depression.
While she initially recovered well, she deteriorated again when discharged into community detention care. The health professionals involved felt they could not condone her being discharged into detention again given the impacts on her health and the risks for her child.
The health-care professionals are claiming they are ethically obliged to not discharge the children due to their duty of care. But which should be a priority for medical professionals – their duty of care to their patient, or the law?
What does the law say?
In 1992 Australia modified the Migration Act to require all unlawful non-citizens to be detained, regardless of circumstances, until they are given a visa or leave the country. In 2001, the Howard government introduced the Pacific Solution which meant those trying to reach Australia without a visa would be detained and processed offshore.
In 2013, then-prime minister Kevin Rudd introduced the Regional Resettlement Arrangement between Australia and Papua New Guinea. Those determined to be genuine refugees would be resettled in Papua New Guinea rather than Australia.
There has been ongoing concern about conditions in offshore detention centres and the psychological impacts of prolonged detention, particularly on children. A Human Rights Commission inquiry found children detained for long periods of time were at high risk of mental illness.
Doctors' refusal to discharge patients to these conditions could be seen as actionable under the Border Force Act. But whether the government would go down this path, or whether a judge would uphold a ruling, is highly questionable.
What is right?
While doctors probably wouldn’t be prosecuted for their actions, there is an interesting moral question of whether they should break the law in order to protect their patient. There are legitimate boundaries to the duty of care, such as protecting the interests of other patients by allocating scarce resources fairly.
It’s common practice for medical professionals to consider the environment that a patient will be discharged into as part of the discharge process. For example, if a patient was so elderly and frail that they would be unable to care for themselves, the doctor would not discharge the patient until appropriate care was arranged.
This is in part because there is no point expending medical resources for someone to come back in with the same issues because of an inappropriate living environment. But it is primarily because a medical professional has a fiduciary duty to their patient – where they must put their patient’s interests above all else.
While the roots of this obligation are complex, most consider it fundamental to the practice of medicine. Some derive it from the “do no harm” component of the ancient Hippocratic oath. More fundamentally it’s an important protection for both practitioners and patients from what would happen in a normal market relationship given the unequal knowledge and power between them.
This same fiduciary relationship holds for the same reasons between other professionals like lawyers and their clients.
A doctor’s duty of care
While in general we ought to obey the law, sometimes moral duties trump our obligation to obey the law. Consider as an unrelated example those who helped hide Jews in Nazi Germany – we would consider their law-breaking praiseworthy.
Knowing the impact of detention on children, it’s difficult to see how returning a child to this environment would be in their best interests. There is at least a minimal professional obligation to protest against present governmental practices, as the Australian Medical Association among others have done. If medical professionals feel compelled to break the law it is entirely in keeping with their duty of care to their patients.
Perhaps a middle ground should be found here, where we minimise harm once potential refugees arrive. Community care programs have been proven to be effective at protecting both the community and the children while avoiding the harms of long-term detention.
Until such a time, it’s fair to say while the Border Force Act may frown upon doctors refusing to release children into detention, few others will.
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