Recently Dr David Isaacs, a courageous Australian paediatrician, returned from a working visit to one of Australia’s offshore immigration centres with distressing reports of the suffering and what he considered to be torture of the detained asylum seekers. He called publicly for doctors and nurses to question whether it is ethically permissible for them to accept employment in such settings. Since Dr Isaacs spoke out doctiors and nurses at Melbourne’s Royal Children’s Hospital have refused to discharge asylum seeker p[atients to island detention where they believe the children would be unsafe.
Dr Isaacs risked imprisonment for speaking out and he donated his earnings to asylum seeker relief. He then published an essay in The Journal of Medical Ethics, whose editor – an Australian medical graduate – asked me to respond. This is what I wrote. It is published here with the kind consent of the editor of the Journal of Medical Ethics, British Medical Journal.
ABSTRACT: An examination of ethical issues encountered in the author’s clinical work with detained patients. The author seeks to clarify in which ways, if any, the detained patient might differ from the generality of patients, and hence to identify any distinct ethical duty of the clinician. Also addressed is the broader question: how – if at all – do medical ethics vary from universal ethics? The author reflects on the distinctive duties of a free human towards a detained one. And finally addresses the topical suggestion that a doctor or a nurse should positively refuse to serve in an immigration detention facility on the grounds that to do so would be to condone or facilitate torture.
BY WAY OF INTRODUCTION
The author is a general practitioner of wide experience, having worked in Australian urban, suburban and country practices over greater than four decades; and having spent about eight weeks a year for the past twenty years working in remote clinics. These ‘outback’ postings have been predominantly in Aboriginal communities, while (in 2009) the writer worked for a time In Alice Springs Correctional Centre, and (in 2010) in an Australian Government Immigration Detention Centre offshore.
DECLARATION OF INTEREST
1. I worked in Alice Gaol for lower than average wages; I worked offshore for inflated wages; I banked all proceeds and I paid tax on them.
2. I tutored the editor of this journal in general practice. Our conversations ran particularly to ethics. I became your editor’s friend, his referee, his failed marathon running mentor.
3. As a result of the foregoing I must accept partial responsibility for any ethical errors in your editor’s writing and in his clinical work.
4. I have written and published elsewhere on these themes and continue to do so. They constitute a substantial element in my forthcoming book, ‘Burned Man’ (in press, Hybrid Publishers, for release in August 2016), to be marketed with mercenary intent (and with the opposite expectation).
5. I signed a confidentiality agreement with my employer prior to working in the island Detention Centre.
6. I worked in Torres Strait (2008) on behalf of the Department of Customs, charged with medical assessment and initial treatment of illegal fisherman captured in Australian waters.
MEDICAL ETHICS VS ‘UNIVERSAL ETHICS’
I read with interest and admiration ‘Are health professionals working in Australia’s immigration detention centres condoning torture?’ The paper addresses a number of important issues explicitly as well as raising equally significant questions implicitly. As I read that valuable paper I found myself wondering whether any distinction actually exists between medical ethics and human ethics generally. An alternative way of formulating my question runs something like this: Why, and in what ways, should a nurse or a doctor – or any clinician – be answerable differently from any other moral agent?
At first blush there would seem to be no difference: in the encounter between any two humans who find themselves respectively in need of help and in a position to help, their inequality mandates a response. That one is sick and the other is skilled in healing is an accident, a detail. This is the bedrock ethic of the Good Samaritan.
However, if among a number of willing passers-by there be one who is a nurse or a doctor, the twin facts of clinical training and of vocation, demand that person in particular step forward and help.
Similarly, the training of the Surf Life Saver selects her to rescue one washed out to sea; and the paramedic is the one who should commence CPR in case of roadside cardiac arrest; and the infectious diseases physician respond to the Ebola outbreak.
Common to all these is a degree of risk to the rescuer; the life saver risks drowning, the paramedic risks injury from passing vehicles or hostile lawyers, the physician risks contracting infection and the asylum-seeker’s clinician risks criminal penalties should she reveal official wrongdoing. Traditionally society expects its ‘rescuer class’ to accept those personal risks. In entering our professions we who are clinicians have implicitly accepted – indeed embraced – those risks. So much so that it was with shock that I first heard the suggestion – made in 1969 – that a doctor should not stop to help a road victim, lest the doctor be sued for an adverse outcome. (That advice was given to doctors in litigious America. The advice was ethically wrong, and in many jurisdictions laws have been passed that protect a clinician who responds ethically.)
ARE DETAINED PATIENTS DIFFERENT?
My detained refuge-seeking patients resembled all patients in that they were variously unhappy and anxious; their understanding of their condition was inadequate; and they were sometimes unwell, although not in the way they understood themselves to be.
These were patients (although my employers insisted they were ‘clients’); their complaint, their pathos, was the detained condition, to which more familiar clinical entities were superadded.
To a man – and the great majority in my care happened to be adult and male – patients in immigration detention suffered from a spiritual malaise, an affliction I have not seen described and which I struggle to categorise. Its features include an inversion of belief such that the detained person replaced trust in fellow humans with mistrust, an expectation of mendacity and malignity of purpose. Thus the clinician, ostensibly present to help, was felt to be the adversary, present only to frustrate and harm the detained one. Our method of harm was supposed to destroy sanity, literally to drive mad the supplicant for our help. The two protagonists became respectively the anti-patient and the anti-doctor. The inversion of belief was pervasive. Hope, the constitutional belief in life and its goodness, were alien, felt to be elements of the fabulous, not congruent with life as it was now known. In a community of almost one thousand believers the mosque was largely unattended.
This inversion of the spiritual substrata of life reminded me of Primo Levi’s descriptions of that distinctive moral universe, the Nazi concentration camp, where the SS intentionally destroyed a world of hope, faith, kindness. I do not suspect any such intent on my island. But the outcomes here are as certain as they are unintended.
An unanticipated hazard was experienced by carers, both among the guards and the clinicians. The hazard was moral in nature. Quickly many came to sense wrongness in the system. The wrongs included treating as criminals persons who had broken no law; imprisoning persons who had shown every desperation to be free; humiliating our patients with a dehumanizing system of identification by boat number rather than by name. All who worked in the Centre understood we were functioning parts of an unkind system: while we were to do no harm we were to delimit our own capacity to do good.
Evidence of the moral hazard, the sense of our violence against our own values, emerged in the behavior of the captors. Doctors drank every night, smoked heavily, suffered nightmares. More than one guard attempted suicide, one successfully.
In one more than one instance my medical superior refused my referrals for imaging, apparently on the unspoken grounds such would have to take place outside the Detention Centre. In one case, evidence of acute lumbar disc herniation indicated urgent CT scanning. This would require transfer to the mainland. My boss said: ’No. That can’t be done.’ Knowing that it could be done and it should be done, I asked, ‘Why can’t it be done?’
Displeased by my insubordination she stepped forward, stopped half a pace from me and shouted, ‘You can’t ask that question!’
For months following my return to the mainland, my reunion with friends and family, my resumption of normal medical work, I experienced nightmares. In those dreams I was a member of a tribunal, sitting in judgement on refugees’ pleas for asylum. In those dreams no voice was heard; supplicants argued mutely; mutely, we judges refused their pleas. The whole was an accusation against my implicated self, against my silent self.
CRIMINAL DETENTION VS IMMIGRATION DETENTION VS CUSTOMS DETENTION
The author of ‘Condoning Torture?’ refers to both criminal detention and immigration detention. I have worked in both categories as well as in compulsory detention for Customs. In all three cases detained persons are held inside locked areas behind high fencing in locations beyond view of the public. These arrangements serve to ensure ‘security’, an idea with more than one understanding: ‘security’ has evolved from the safety of the detained person and of the community to security of secrets. Briefly put, locked behind a series of heavy steel doors, detained persons remain invisible to outsiders and hence vulnerable to abuse. These are the settings which some refer to as Black Sites.
In the case of my island Detention Centre, the detained resided in their quarters, out of reach and sight of clinicians, who saw and treated them only when they were admitted to the Clinic located in a second secured area. The communicating door between the broader compound and the clinic was manned by the bulkiest of the male guards, charged with selecting and admitting our patients according to acuity of need. In practice these selections were opaque; we clinicians could never know who was excluded from our view and on what basis.
Offshore detainees manifest a critical and unique pattern of behaviour which distinguishes them from the great majority of patients of my clinical experience in other settings: they see it in their interest to achieve, demonstrate and maintain the worst health possible. The purpose – or the function – of this ‘poor health’ is to qualify for urgent transfer to ‘the mainland’, a location endowed with a mythic access to liberty in Australia proper. Thus the asylum seeker will exaggerate or fabulate to save himself. The clinician is mistrusted (like all in authority, for all have ‘lied’, and lied maliciously to drive the poor patient mad); in turn the clinician is unable to take symptoms at face value. Trust, the substrate of every decent clinical encounter, is shattered. For the clinician and the imprisoned person have opposite objectives.
Quite different are the assumptions in Alice Springs Correction Centre where eighty percent of prisoners are Aboriginal. Here transparency is a cardinal virtue. Prompted by blackfella outrage and whitefella shame, and by the political hazard of failing to care well for imprisoned indigenous people, authorities hasten to identify risk of harm to their charges and to act upon it. Often warders and clinicians over react, such are the anxiety and the dread of misreading need through the clinician’s cultural subliteracy.
SHOULD A DOCTOR ACCEPT WORK WITH DETAINED PERSONS OFFSHORE?
This question arises because of the apprehended possibility that a doctor will participate in or facilitate wrongdoing; and having witnessed harm to patients will be constrained from ‘whistleblowing’ against that wrong. The apprehended risks are real. Under new Australian legislation a clinician who speaks out is open to prosecution and if convicted, to imprisonment for up to two years, for revealing secret information. An additional constraint is the Confidentiality Agreement employees are required to sign as a condition of employment.
The author of “Condoning Torture” suggests Australia’s treatment offshore of detained refugees constitutes torture. The writer adduces evidence for that suggestion but stops short of declaring categorically that such treatment is torture. At the same time he acknowledges the clinical needs for care of the refugees. He writes: Australian health professional thus face a major ethical dilemmas. Individual health professionals need to decide whether or not to work in immigration centres. If they do so, they need to decide for how long and to what extent restrictive contracts and gagging laws will constrain them from advocating for closing detention centres.
I find the author’s formulation of those questions helpful in pointing a clear ethical path. He authorizes each individual to forge a personal response. This seems to recognize the moral autonomy of the individual practitioner, as well as the individual responsibility of the individual. As the Mishnaic sage Hillel taught: if not me, then who? If not now, then when?
The author breaks the decision into two or three parts:
1. Will I work there? (Do I have the right to do so? Do I have the right to decline?)
2. If I do accept that work, I must do so provisionally, ceasing when I form a judgement that to continue more offends ethically than to desist.
3. In answering the second question I must consider how much my gags prevent me from doing needed good?
The argument allows me to approach the questions as follows: Here, in the offshore ‘facility’ – a black site or a blackish site or at the very least a grey site – we have sick human beings. Our government, their custodians, seeks to employ doctors, nurses, psychologists, mental health nurses, to attend to clinical need. The employer presents the qualified clinical professional with a contract to perform professional duties and to treat the conditions of the workplace confidentially. The government does not stipulate, ‘You must agree to torture your patient’.
On the basis of my own experiences, where I was not required to do positive harm but I was constrained from doing some needed good, I could sign the contract and enter upon my employment in good faith and in the assumption of my employer’s good faith. After all, I was employed a medical professional. That profession implies first and foremost a refusal to do no harm. If and when I form the belief my employment required me to do harm, I must refuse and make clear my reasons for doing so, both to my superiors and to my peers. Where possible I must make this clear also to the detained person. Should my employer dismiss me I must make public my employer’s wrongful instruction and my actions and the circumstances of my dismissal. I run a risk in doing this, the risk of incarceration. That is my lifesaver, my paramedic, my infectious disease specialist moment, my moment of familiar medical hazard. A hazard, yes, but in our relatively non-totalitarian system, a hazard without risk of death. Safer far than the ebola risk. Safer than the choices of a psychiatrist in the Soviet Union, safer than those of doctors under the Third Reich. A hazard but not a mortal hazard.
On the other hand if no objectionable command requires me to take a self-sacrificial stand I remain free to work, to watch, to listen and to consider. And upon making my judgement I should speak out. If all is kosher, if detained persons are treated with full human dignity and compassion, then I must cry it from the rooftops. And conversely, if I find my hypothetical centres to be objectionable I must call for their improvement or their closure.
Those are equally clear ethical imperatives – not matters of narrow medical judgement but the call of every citizen. In the end the doctor, the nurse, the guard, the journalist, the therapist, the pharmacist, the interpreter, the public servant all answer to an ethic which is universal. Medical ethics represents but one corner of that wide universe.