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Price, Rohan --- "Who Has Jurisdiction Over the Mind? an Individual Rights Approach to Forced Medication in Australia" [2004] AUJlHRights 10; (2004) 10(1) Australian Journal of Human Rights 10


Who has jurisdiction over the mind? An individual rights approach to forced medication in Australia

Rohan Price*

This article discusses the legal and ethical dimensions of involuntary medication, most notably in relation to Australian immigration detention detainees. In the article, an individual’s right to self-determination in relation to medical intervention is balanced against the risk of harm to the self and to others if that individual is not compelled to take medication. The article also offers analysis of the therapeutic value and health risks associated with a range of psychotropic medications, documenting their use in Australian detention centres. It concludes that the abuse by authorities of involuntary medication needs to be checked immediately and permanently through the implementation of a federally legislated code of practice.

Introduction

In general terms, it can be called ‘involuntary medical treatment’. It can, in some circumstances, also be described as a ‘non-therapeutic medical procedure’ (La Forest J in Re Eve, at 1, 32). More specifically, this article addresses aspects of the administration of a psychotropic medication that is ‘unwanted, over objection, [or] compelled’ (Riggins v Nevada, at 132), which is sometimes simply called ‘chemical restraint’ (DIMIA 2000) or in other cases, ‘non-consensual sedation’ (HREOC 1998: 126). Word choice is critical in this debate. For those with a concern for individual rights, the administration of medication is likely to be ‘forced’, or even ‘invasive’. Those who view such medication as protecting the life of the medicated person, as well as other persons and property, refer to it as ‘non-consensual’ or ‘medically appropriate’ (Riggins, at 132). This article uses the least emotive term, namely ‘involuntary’ medication, and evaluates Australian cases involving supervised and involuntary administration of psychotropic drugs on immigration detainees in detention and deportation contexts.

As sources of further reference, the article also inquires into the treatment of those people in the wider community with a mental illness who are required by mental health facilities to take a course of medication against their will. The article assesses the human rights issues associated with compelling any individual to take a medication that has grave side effects.

The concerns being raised in this paper are not novel to the United States, or even to Australian case law. However, other than a generally comparable literature on cases in the wake of Re Marion concerning the sterilisation of women with intellectual disabilities, which appeared in the early to mid-1990s (see, for example, Tait, Carney and Deane 1992; Ford 1996), little has been said in academic circles about involuntary medication in Australia, either on people in immigration detention or, for that matter, on those in the wider community who live with a mental health condition.

Parens patriae

One of the key human rights issues raised by involuntary medication is the responsibility that is owed by the courts and tribunals to an individual under the parens patriae jurisdiction. This concerns whether those working for a state instrumentality ought to be able to force people in a corrections, guardianship or internment context to take anti-psychotic drugs and when, if at all, such interference with a person is warranted. This prompts the question: should staff in detainment facilities presume to know the best interests of a detainee, and if they do so presume, and on erroneous grounds, does this constitute a form of mental control that no humane society ought tolerate?

Do asylum seekers qualify for the special protection of the courts?

There is little doubt that the courts have a parens patriae responsibility for citizens, most notably including infants, idiots (natural fools) and lunatics (see Re C (Adult: Refusal of Treatment), at 240), and that such instrumentalities are required to be actively guarding the welfare of those most vulnerable to their rights being transgressed (ALRC and HREOC 1993: 1; Seymour 1993: 10; Carney and Tait 1994: 28). The problem with this line of argument, however, is that the parens patriae jurisdiction of the courts is thought to extend only to detainees who are mentally incompetent to give consent (Stewart 2001: 6). While many asylum seekers in Australia are distressed and have mental disturbances, their condition may not be of a kind that invokes judicial review of their medication.

The cases disclose many asylum seekers who are medicated involuntarily because their behaviour is not compliant with the rules or procedures of the detaining authorities. Such people, as parens patriae is currently conceived, fall outside the protection of the courts in cases of involuntary medication because they maintain mental competence. Against this, we can note the argument that the categories of cases in which parens patriae jurisdiction can be invoked, while not infinite, are not closed either. In the Canadian Supreme court, La Forest J said of the jurisdiction in Re Eve: ‘[i]ts limits (or scope) have not, and cannot, be defined’ (at 1, 3).

Self-determination

There has been academic discussion of the rights of prisoners in Canada (Sommerville 1985) and the US to refuse medical treatment (Hankin 1997), but little debate of this in Australia, whether in criminal corrections, immigration detention or psychiatric contexts. The exception to the academic silence on this issue is Cameron Stewart who, in a vigorously argued discussion of euthanasia, regards the right of self-determination in the receipt of medical treatment as a major concern, but one qualified in cases where the patient is mentally incompetent (Stewart 2001: 2). While I seek not to question this position, there is an unmet need to focus on the question of a right of self-determination in the context of involuntary medication of a person who is, to relevant intents and purposes, mentally competent, but who is given an involuntary course of medication that can have profound, health risking and irreversible consequences.

Participants in this debate are entitled to take a position for or against involuntary medication on a range of grounds, but also need to respond to the intermediate ethical position to be found in Riggins, which concerned withdrawal of permission to continue to administer a psychotropic medication. The US Supreme Court found that once the inmate’s motion to terminate the use of the psychotropic drug was denied, its administration became involuntary, but nonetheless ‘medically appropriate’ (Riggins, at 127, 132). While we need to take care with the constitutional and mental health particularities of the United States, this position says that the deprivation of an individual’s right to self-determination is justifiable when the medical reasons for administration of a drug are sound, and that such deprivation does not necessarily make the treatment ‘wrong’. There is much here to support Stewart’s view, namely that the use of public interest criteria in ‘right to die’ cases — termed ‘the state interests approach’ — helps judges to weight their judgments better (Stewart 2001: 10–11).

In the US, the issue of involuntary medication of people awaiting trial or sentencing has been shown to involve a great many issues, and a rather intricate rights debate, but much of it returns to a single consideration: whether an individual’s right to refuse psychotropic drugs should prevail over the state’s parens patriae concern for the wellbeing of those deemed unable to make a rational choice.

The issue is somewhat clouded by whether or not medication is given to make someone competent to stand trial, or if indeed the medication affects thought processes to an extent that an individual cannot participate meaningfully in his or her own defence. In such cases, including Harper v Washington State and Riggins, the courts had to make judgments about the capacity of an individual to make his or her own decisions in relation to medication. While these matters are not strictly relevant to the discussion here, such cases reference the advanced state of the debate about involuntary medication in other Western countries.

Canadian writers Gordon and Verdun-Jones (1992: 28) noted that ‘[b]ecause of their assumed state of incapacity, adults under guardianship are denied or lose most of the powers and fundamental rights and freedoms enjoyed by others’. This point seems a natural one to make in the current Australian debate about asylum seekers, but also seems little discussed. Open and accountable decision-making, with explicit reference to a right of self-determination, is very important in cases concerning immigration detainees. This significant duty is owed to them as a result of their vulnerability and dislocation, not to speak of their rights under international law.

By reason of age, illness or other cause, some individuals are deemed to need the benevolent care of the state. In history, the sovereign was responsible for the care and custody of mental incompetents and their possessions. They were ‘wards’ of the Crown, and the Crown, as their ‘parent’, extended its protection to them. Bartol described the nature of the power by noting that: ‘[i]t authorizes the state to substitute and enforce decisions about what is believed to be in the best interests of persons who presumably cannot or will not take proper care of themselves’ (Bartol 1981: 193). The advent of powerful psychotropic medications has raised the question of when such medication is in the ‘best interests’ of the patient. To answer this, we need to consider both the therapeutic and the deleterious effects of psychotropic medications.

Adverse effects of psychotropic medications

The issue of therapeutic benefit to a person involuntarily medicated is a major concern, as many psychotropic medications have extreme side effects that can, in some circumstances, seriously endanger the health and even the life of the person medicated with them.

The first step in professional mental health care is observation and diagnosis. The decision to administer such psychotropic medication involves careful clinical judgments that need to be made by doctors and qualified staff as to whether a patient’s behaviour is simply erratic or whether it is indeed dangerous. Of course, acting unusually or being loud or even argumentative are not of themselves mental health conditions; were it so, many academics might find themselves sectioned. But when such behaviours are interpreted as symptoms of a condition potentially giving rise to aggressive or violent behaviour, the imperative to medicate the individual can arise. Complicating this as an ethical issue is a concern about the health of the patient and whether, in the context of severe side effects often experienced by patients, this concern should be given primacy. This issue concerns whether the risk of a medication regime to the patient is outweighed by the risk a patient or detainee poses to himself or herself or to others.

The Australian cases of Rowlands v Guardianship Board and Bet Khoshabeh v Minister of Immigration and Multicutural Affairs and the US cases of Harper and Riggins have each identified significant adverse side effects that are inherent in taking a course of psychotropic medications. There are complex clinical, legal and ethical issues here, and they relate to whether an individual’s right not to have medically damaging treatment ought, in most circumstances, be outweighed by the public interest factors in that individual having medication, including most notably the prevention of harm. We need then to survey the benefits and risks of the prominent anti-psychotic medications and make some assessment as to how much their qualities are being factored into the decision-making process of whether or not to administer them.

Clozapine

In the South Australian case of Rowlands, the facts disclose that Rowlands, a sufferer of paranoid schizophrenia, appealed against his detention for up to six months under an order of a Guardianship Board. It was deemed necessary by the Board to so treat the appellant, who responded by arguing that, inter alia, it did not give proper regard to the Guardianship and Administration Act 1993 (SA) s 5, in that it failed to give any consideration to the wishes of the protected person and, in particular, the wish of the protected person that he not be administered the drug Clozapine for which purpose the treatment order had been sought had been ignored.

In this case, there is a schizophrenic who refuses to take his medication under supervision and who complains that the Board failed to take into account that his consumption of alcohol was the reason for his failure, on one occasion, to take the prescribed dose of Clozapine, but that he was otherwise generally compliant. Clozapine is a drug with serious side effects. Rowlands related to the Board the side effects of Clozapine, describing that on taking it (usually between 9.30 and 11 pm), he had to go straight to bed because it had a disorientating effect if he was up and walking around and it caused him to feel like he ‘had taken an overdose’. However, he also said that with the medication he is more tolerant, his relationships with his family and girlfriend are better and he doesn’t ‘get so stressed out’. He claimed that he was willing to be cooperative in taking Clozapine, ‘even though I one hundred percent don’t like it’.

The Board also clearly understood the potentially very serious life threatening consequences for some patients who take Clozapine: the risk of agranular cytosis — that is, the loss of white corpuscles. A patient must have weekly blood tests for 18 weeks and monthly tests thereafter, so that, if such an adverse consequence occurs, the medication can be stopped. For many schizophrenics, the benefits of anti-psychotic drugs come at the cost of debilitating side effects, including stiff muscles, restlessness, a dry mouth and blurred vision (Nichols and Driedger 1995: 70). Nichols and Driedger further cite a Canadian elementary school teacher who says that the drugs cause ‘terrible’ side effects in her 34 year old schizophrenic son. ‘He says that his head buzzes, and because of his restlessness, he has to walk miles and miles every day,’ she says. As a result of such symptoms, schizophrenics often stop taking their medication — and suffer relapses (Nichols and Driedger 1995: 72).

In Rowlands, the District Court of South Australia found that the case worker and Rowlands himself both affirmed in their evidence that Rowlands would not be compliant in taking his course of Clozapine and that, on this ground, the Board was correct in its decision and there was no substance to the appeal.

The provision at issue here, the Mental Health Act 1993 (SA) s 5, is quite constitutional in its tone. Under s 5, those involved with the administration of the Act are to:

... minimise restrictions upon the liberty of patients and interference with their rights, dignity and self respect, so far as it is consistent with the proper protection and care of the patients themselves and with the protection of the public.

It remains to be seen to what extent Australian courts and tribunals will recognise the potentially fatal side effects of medication as having a bearing on the ‘proper protection and care of patients’. This is to say, it is problematic to say simply that the only rationale for involuntary medication is that it will protect an individual against himself or herself, and also protect others, when the medication itself may harm the health of the patient.

Schizophrenia medications and therapeutic value

The treatment of schizophrenia, in particular, has changed as a result of the advent of drugs including Clozapine and Risperidone. Until 20 years ago, schizophrenics were confined to hospitals and treated with wet sheets and insulin in the case of an episode. Nichols and Driedger (1995: 74) note a patient who reports beneficial aspects to involuntary medication. They cite the case of Charles Nabors, a 41-year-old Calgarian, who was diagnosed as schizophrenic in 1986. After he stopped taking his drugs, he was committed to a mental hospital and given medication against his will. ‘It is an infringement of civil liberties,’ said Nabors, ‘but in my case, it was beneficial to be locked up and put on medication. You can’t tell when you’re getting sick. It’s a disease of the brain and it’s very subtle.’

The question here is whether or not involuntary medication can be justified purely on grounds of therapeutic value, which is something that a patient is not always best placed to judge. One small study suggests that there are some defensible outcomes in cases of involuntary medication (Cournos et al 1991). The records of 51 involuntarily medicated inpatients from six state hospitals in New York City (1985) were examined and compared with those of 51 patients from the same wards who voluntarily took their prescribed medication. The clinical course for all 102 patients was then followed up for a full year. The state hospital system in New York City reserves the use of involuntary medication for patients who persistently refuse medication and who are considered to be dangerous either to themselves or to others.

During the year the study was conducted, the average length of stay for state hospital patients was 52 days. However, the average patient medicated involuntarily had already been hospitalised for approximately one and a half years. The involuntarily medicated patients were found to be significantly less delusional than patients who voluntarily took medication at the end of the follow up period.

The available evidence suggests that involuntary medication has a positive impact on the mental health of a patient. This further complicates the human rights equation. If medication is imposed on an individual, safe in the knowledge that there will be demonstrable improvement in that person’s condition, can this in itself be a valid rationale for violating their civil liberties in the first place?

Clozaril

In the case of Bet Khoshabeh, the applicant was a refugee in Australia who committed serious crimes and whose risk of re-offending was linked to his risk of failing to continue treatment. The choice for the AAT was between allowing him to stay in Australia and be a risk to the community by not taking his medication, and deporting him back to Iran. Deputy President Forgie SA commented:

... I would conclude that the danger that would come to the Australian community would be serious if Mr Bet Khoshabeh were to fail to take Clozaril and I consider that this would outweigh the grave risk to him as an individual should he return to Iran. The risk of his not taking the Clozaril is real. It is not minimal but even if it were minimal, the consequences are so serious that even that degree of risk is not outweighed by the hardship that Mr Bet Khoshabeh and his family will undergo. The degree of risk is unacceptable (at 132).

The issue of involuntary medication was not directly addressed in this case. We do, however, have the expert testimony of a psychologist who said that Vilperit Bet Khoshabeh was genuine in his intentions to care for his sick mother and to keep away from Ms Aghajani (the victim of a previous attack). The psychologist did not consider that Bet Khoshabeh was a risk so far as Aghajani was concerned, but did consider it essential that he continue his treatment. The reason for Bet Khoshabeh failing to maintain his previous treatment had been that it was not as effective as Clozaril, a drug in the same class as Clozapine. Unlike a psychiatric hospital, where coercion is used either directly or subtly, she did not think that the prison environment would be an environment that is generally conducive to a person’s taking medication. In prison, prisoners are aware of their rights not to take medication and therefore doing so becomes a matter of individual choice (Bet Khoshabeh, at 64–65).

Clozaril was prescribed to control the delusional preoccupations that Bet Khoshabeh had developed after 18 months in a detention centre. In the case of Bet Khoshabeh, it is also relevant that his brother, Victor, agreed to ‘accompany Vilperit to appointments, assist in supervision of medication compliance, and so forth’ (Bet Khoshabeh, Exhibit A2, at pp 7–8). This was to no avail, and Bet Khoshabeh was to be deported after completing his prison sentence.

The point of this is not to suggest that the AAT or any other Australian tribunal or court is making errors of judgment in cases concerning mentally ill people. In Bet Khoshabeh, the position appears to be that a person will most likely be adjudged a person to be a risk to the community if the tribunal cannot feel completely assured that the person will dutifully take his or her medication.

Prolixin

Prolixin is a widely used psychotropic medication and the subject of the US Supreme Court’s ruling in the leading case of Harper v Washington State, which found that prisoners do have a right ‘to avoid the unwanted administration of anti-psychotic drugs’, though this right must yield if the state can demonstrate that forcing treatment is ‘reasonably related to legitimate penological interests’ (at 210, 225). Such interests do not include the use of drugs as punishment, but do include the use of drugs for treatment and to maintain order in the prison environment. This latter interest in ‘prison safety and security’, the Court noted, is especially important because prisons are ‘by definition’ made up of ‘persons with a demonstrated proclivity for antisocial criminal, and often violent conduct’ (at 210, 226).

In deciding whether an involuntary drug treatment regulation passes the ‘reasonably related to a legitimate penological interest’ test, Harper established that a reviewing court need be mindful of at least three factors: (1) the connection between the regulation and the state interest it is meant to foster; (2) the impact that accommodating the asserted right will have on other prisoners, on the guards ‘and on the allocation of prison resources generally’; and (3) the absence of ready alternatives (at 210, 225).

Using these factors, the Court concluded that the mental facility’s involuntary medication regulation is constitutional as a matter of substantive due process. That policy included the directives that a prisoner may be subjected to involuntary drug treatment by a psychiatrist in a non-emergency situation only if the prisoner (1) suffers from a ‘mental disorder’ and (2) is ‘gravely disabled’ or poses a likelihood of serious harm ‘to himself, others, or their property’ (at 210).

As we noted above, the drug involuntarily administered to Harper was Prolixin. It acts ‘on all levels of the central nervous system as well as on multiple organ systems’ (at 210, 241). The Court noted that Prolixin can induce catatonic-like states, alter electroencephalographic tracings, and cause swelling of the brain. Adverse reactions include drowsiness, excitement, restlessness, bizarre dreams, hypertension, nausea, vomiting, loss of appetite, salivation, dry mouth, perspiration, headache, constipation, blurred vision, impotency, eczema, jaundice, tremors, and muscle spasms. The drug may also cause tardive dyskinesia, an often irreversible syndrome of uncontrollable movements, and neuroleptic malignant syndrome, which is 30 per cent fatal (at 210, 242; also note Annas 1990). Harper had his case finally decided in 1990, but had experienced dystonia (acute muscle spasms) and akathesia (physical-emotional agitation) since 1982. Stevens J concluded that because of these potential adverse side effects, the Supreme Court of Washington properly equated such drug treatment with ECT, which could be refused in Washington by a competent prisoner.

In his minority US Supreme Court judgment, Justice Stevens characterised an individual’s liberty interest in avoiding the involuntary administration of anti-psychotic drugs as having both physical and intellectual dimensions, and found involuntary treatment to be ‘degrading’ when ‘it overrides a competent person’s choice to reject a specific form of medical treatment’ (at 210, 237). Forcibly using drugs ‘to alter the will and the mind of the subject,’ he argued, constitutes a ‘deprivation of liberty in the most literal and fundamental sense’ (at 210, 238).

Stelazine

The drug Stelazine was at issue in Holmes v Northern Territory, a case in which a psychiatric nurse threatened to section the applicant, a paranoiac, and induced him to believe that if a court order were sought, any court would take notice of the police and the psychiatrists rather than him, and that such an order would be granted. Accordingly, he asked the nurse if he could admit himself to hospital for ‘observation’ and, if he did so, if that meant that he had more rights than if he were ‘sectioned’.

In response to the pressure, Holmes did admit himself to hospital. He said that he stayed in the psychiatric ward of the Alice Springs Hospital for about three and a half weeks in February 1992. Holmes said that while he was in hospital, ‘nothing happened’, except that he ‘was filled with drugs’. In his case, he was treated with a Trifluoperazine (Stelazine or Trifluoperazine). He said he ‘felt terrible’ and was ‘walking round like a zombie’. He was told that he could discharge himself after two weeks but, after further discussions, stayed on longer in the hospital.

That Holmes felt terrible is no surprise. Many people experience side effects with Trifluoperazine, and at the mild end of reactions are drowsiness, dizziness, skin reactions, dry mouth, stimulation, insomnia, fatigue, weakness and anorexia. Examples of reactions at the severe end include Parkinsonian-type symptoms and tardive dyskinesia (indicated by involuntary protrusion of the tongue, puffing of the cheeks, puckering of the mouth and chewing movements), which in some people is irreversible (Internet Mental Health 2004). As we’ve seen, this is a risk if taking Prolixin. The same is also true of many first generation anti-psychotic agents (such as haloperidol and phenothiazine).

Holmes said that he told the doctors of the constant harassment he had experienced (by police and Telstra workers). The doctors tried to tell him that it was not real, that it was only in his mind, and that he was imagining things. He agreed that the doctors listened to him, but he said that they did not understand him. He said that at the first interview, the psychiatrist told him that the harassment was ‘all in his mind’ and in his presence phoned the police and spoke to them for about five minutes. Holmes said that he believed that in this conversation the police told the doctor that he was mad and was to be kept in hospital. He has never agreed that the harassment was only in his mind.

According to Holmes, he was provided with medication and was told that if he regularly took the medication it would help. However, he said that the medication made him ‘feel terrible’ and he felt that it would not do him any good, as he did not agree that the problem was in his mind. He did take the medication for three and a half weeks, but it left him feeling confused and threatened. He said that his psychologist, Dr Abusah, had encouraged him to continue with treatment including the medication, but he decided against continuing with it. He said that this was because he feels that he does not need the treatment, and also because he has ‘seen what it does to patients’. Holmes said that after he was discharged from the hospital, he did return to collect the medication, but he always threw it away because he felt that he did not need it. He said that since then he has been readmitted to the psychiatric ward once: this was when he was suffering depression after a broken relationship.

The case of Holmes raises questions about coercive pressure, stigmatisation and respect of patient wishes. On the facts, Holmes certainly had delusions and eccentricities of behaviour, although he constituted no risk of harming anyone in the community. Why he was coerced into psychotropic medication and institutionalisation against his wishes is not clear. The Human Rights and Equal Opportunity Commission (HREOC) found in favour of his discrimination complaint.

Documented cases of involuntary medication of immigration detainees in Australia

Background

The Australian public has, on an almost daily basis, been acquainted by the news media with the plight of those in immigration detention in this country. Many immigration detainees come to these shores after a harrowing boat trip from Indonesia. They commonly hail from war zones and countries that have slid into political despotism. Many have been brutalised and tortured in their former home country and have a fear of returning there. Our immigration detainees come from countries including, but not limited to, Somalia, Iran, Burma, Pakistan, a number of Central Asian former Soviet republics, China and Afghanistan. These people are desperate, fragile and in a state of shock and intense grief as a result of the loss of loved ones or separation from them.

Their prime legal problem once they have reached Australia is that they are illegal immigrants who are claiming refugee status. That is to say, they are perceived to be ‘queue jumpers’ who ought to have applied for consideration as refugees in their countries of origin or from recognised UN refugee camps. It should, however, be noted that whether or not a person is a detainee of an immigration detention centre, and whether or not a detainee has entered the country lawfully, involuntary medication will in many circumstances be an abuse of that individual’s rights under international law.

Mass suicide attempt (1995)

In 1995 there was a mass suicide attempt at Port Hedland. This was resolved by the removal of detainees to isolation and ‘chemical restraint’ through intra-muscular injection (McDonald 1998). Chemical restraint also occurred on an occasion in 1996 involving a mass suicide attempt by 22 detainees, including 4 children (HREOC 1998: 125). At least five suicides or undetermined deaths due to external causes occurred in the detainee population in the 18 months preceding September 2003 (HREOC 2003).

At 23 March 2000, there were 3622 people held in immigration detention facilities, of whom 315 were in Villawood, 82 in Maribyrnong, 27 in Perth, 805 in Port Hedland, 1105 in Curtin and 1288 in Woomera (DIMIA 2001). The process for assessing such people’s claims is very slow and the conditions in which they are held are basic. Three Somali men who were claiming refugee status waited in Port Hedland for over 3 years between 1997 and 2000. They stated, in a letter released to the media by the Uniting Church, that: ‘We have lost more than 10 percent of our age in a terrifying, traumatising, prison-like environment’ (Africa News Service 1994).

The orange case (1997)

A documented 1997 incident at Port Hedland is a good example of sedation as a ‘knee-jerk’ response to disruptive behaviour, as well as medication as an abuse of power. In May of that year, a woman detainee at Port Hedland complained of being attacked by five guards after taking an extra orange from the dining hall. Despite the woman’s attempts to explain that she was given the fruit by a kitchen worker, and her repeated requests for an interpreter, she was taken to an observation room where, according to the guards, she removed her clothes and attempted to hang herself with them. The onsite mental health nurse was then called to inject her with an anti-psychotic drug. The nurse did so after talking at length with the detainee.

The Commission found that:

[t]he inflexibility of the APS officers [Australasian Protection Service, the private contractor controlling security at the detention centres] in not allowing the detainee to leave with the extra fruit and the insistence that she move from the dining area before an interpreter arrived turned a minor event into a major security incident (HREOC 2000: 94). The Commission is very concerned by the use of anti-psychotic medication by intra-muscular injection to control this woman’s behaviour and questions whether this was justified in the circumstances. The reports prepared by the APS and the Department on this incident do not record important facts such as the use of handcuffs and intra-muscular injection to control the detainee (HREOC 1998: 94).

Child sedated (1999)

Back in 1999, the then Minister for Immigration, Philip Ruddock, had an exchange with a journalist, Matt Peacock, over an allegation raised of a child being tranquillised at Port Hedland. In this context, Peacock put to the Minister Amnesty’s assertion that in cases of deportation, sedating detainees is not uncommon in Australia. The Minister responded that it was a ‘rare event’ (ABC Transcript of Interview 1999). This denial, combined with previous and subsequent utterances by the Minister on the issue, indicated that there was still much to find out about the frequency and circumstances of involuntary medication in this country.

The HREOC report ‘Those Who’ve Come Across the Seas’ (1998) is a valuable contribution to the debate. It found that Australia’s policy of detaining all but a tiny minority of unauthorised arrivals violates Australia’s international obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

The report also found that in the Port Hedland Centre, there had been, inter alia, assaults by staff on internees, denial of medical treatment, inadequate mental health services and sedation of disturbed people. The report details that under the ‘Port Hedland Protocol for Management of a Disturbed Resident’, there are circumstances that warrant involuntary medication. A mental health nurse who had worked there for a year said that she had only used intra-muscular injection in the context of an ‘extraction setting’ — that is, in preparation for the deportation of a detainee, usually in the early hours of the morning (HREOC 1998: 126). The report found, however, that chemical restraint is not confined to the deportation process and that one woman’s medical records indicated that anti-psychotic medication had been administered to her four times while she was in Port Hedland (HREOC 1998: 126).

Regulating involuntary medication in Australian detention centres

The first point to make is that involuntary medication as a use of force on detainees in immigration detention centres is contrary to international law. In its Guidelines for Immigrant Detention, the HREOC has stated that:

[t]he use of force in an immigration detention centre is only permitted in exceptional cases to prevent the detainee inflicting self-injury, injuries to others or serious destruction of property, where all other control methods have failed or have been assessed as inadequate on reasonable grounds, only to the extent strictly necessary in the individual case and for the shortest possible period of time (HREOC 2000: 19).

The use of reasonable force in some circumstances, such as a revolt of detainees, might well be justifiable, although those who saw TV footage of the use of the water canon (the air strip’s fire truck) on detainees attempting to escape from the detention centre at Woomera might well have felt disquiet (World Today Archive 2000).

Prima facie, the restraint of distressed individuals through the use of intra-muscular injection is unacceptable — except when strictly necessary — as it is a very particular and intrusive kind of force. If the medication is involuntarily administered for no reason other than a detainee being perceived as a disruption or a ‘trouble maker’, then the authority administering the drug engages in an undeniable breach of human rights. If a detainee’s agitation is alleviated by the granting of a reasonable request or the offering of other medical and/or psychological treatment, then these always are to be preferred to involuntary medication. Undoubtedly, any measure to increase the social integration of detainees would likely have an effect on the number of them presenting behaviour that is deemed by centre guards to require ‘chemical restraint’. Some Australian humanitarian agencies in fact advocate that detainees be released into the general community while their applications for residency are finalised (Australian Council of Churches 1992), and much of this push is justified by the substandard conditions in which detainees have been detained.

Detention standards

The Immigration Detention Standards of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) note that ‘Instruments of restraint such as handcuffs, chains, irons, straight-jackets and chemicals (such as sedatives) are never applied as punishment’ (DIMIA 2000: para 7.10.12). In order to adequately protect human rights, it can be noted that merely protecting individuals against ‘sedation as punishment’ does not go far enough. While in detention, detainees ought to be afforded full mental health services and/or community visits and, it has been found in A v Australia (at 9.6), under international law they should also be granted access to legal services.

DIMIA’s Immigration Detention Standards, last updated in June 2000, include guidelines on the supervised use of sedatives on uncooperative or disruptive detainees (DIMIA 2000: paras 7.10.1–7.10.3). Besides the above claim that a child was tranquillised, there were also claims raised by Senator John Quirke that a pregnant Chinese woman who was being transferred from Port Hedland was sedated for the purpose of a deportation flight back to China (Ruddock 1999). This prompted an investigation, a Preliminary Report by A J Ayers and a finding that the claims were without substance (Ayers 1999).

The medications used in Australian immigration detention centres

As we have noted above, involuntary medication has long been reported to be happening in Australian detention centres, most notably at the Port Hedland facility. In 1998, it was confirmed by the centre to the HREOC that a sedative in the Valium family was in use (Wilky 2001). This raises a major question. Valium and other drugs in its family (benzodiazepines) — including those under the trade names of Xanax, Librium and Dalmane (flurazepam), Serax (oxazepam), Ativan (lorazepam), Restoril (temazepam) and Halcion (triazolam) — are referred to as ‘minor’ sedatives or ‘sedative hypnotics’ and are commonly used to treat symptoms such as anxiety and sleeplessness (Doctors’ Answers to Frequently Asked Questions 2003).

This indicates that if Valium-family sedatives are being used in Australian detention centres, then they are quite possibly being injected in a high dose in order to have the desired fast acting sedative effect. Otherwise, it is conceivable that ‘major’ anti-psychotic medications, such as Risperdal, are in fact being used. It is possible that no-one knows, but it is more likely that no-one is saying. The lack of information on this topic that is freely available in the public domain highlights the need for conditions of detention to be open to greater scrutiny rather than being hidden and denied, as appears to be the current trend. One might wonder how an appropriate regulatory regime for detention centres could ever be developed while key information about the medications currently used in them is withheld from public debate.

Conclusion

Australia’s human rights record is tarnished further by the involuntary medication of immigration detainees. Permanent and thorough changes to the policies governing involuntary medication need to occur as a matter of urgency.

The evidence canvassed here more than suggests a need for closer judicial scrutiny of the practice of involuntary medication in Australian immigration detention centres. The evidence also warrants the immediate development of a new and comprehensive set of guidelines for detention centre staff that places a complete ban on involuntary medication in all but strictly necessary circumstances.

The circumstances in which involuntary medication is appropriate must be decided as the result of a summit of the key stakeholders, including government agencies, health care professionals and non-government organisations charged with responsibility for human rights standards. Part of such a code would be an explicit recognition of the pharmacological properties and side effects of psychotropic medications and the role such information has in any decision to administer such drugs on an involuntary basis. l

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Endnote

[*] Rohan Price is a Senior Lecturer in the School of Law and Justice, Edith Cowan University.

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