Posted 05/11/2012 by Rebecca de Boer
The hunger strike which commenced on Nauru on 1 November is continuing. Initial reportswere that 170 people were participating although more recent estimates by the Refugee Action Coalition suggest around 300. Commencement of the hunger strike was in responseto the attempted suicide on October 31 and in protest to the lack of certainty about when processing will begin. This follows previous reports of self harm on Nauru and suicide attempts (see reports from 11 October, confirmed by the Department of Immigration and Citizenship (DIAC) at Estimates on 15 October 2012 at p. 100 of Hansard, and 27 October). DIAC has said that it does ‘not keep a tally’ of how many self-harm incidents have occurred on Nauru and has suggested that most asylum seekers on Nauru are eating(based on a calculation of how many meals were taken at meal times). However, the Heads of Agreement between International Health and Medical Services (IHMS) and DIAC for the provision of health care to asylum seekers on Nauru and Manus Island requires IHMS to ‘develop and implement a Critical and Other Incident management system for the timely identification, communication to the Department of Critical and Other Incidents at each Facility’ (see Schedule 1, clause 8. Note: the Heads of Agreement was publicly released on 21 September 2012 in response to a Senate Order for the production of documents but has not been published online).
Critical and Other Incidents are defined at Annexure A of Schedule 1. Examples of ‘Critical incidents’ include death, refusal of (health) treatment, serious risk to health or life, outbreak of confirmed public health risk (such as tuberculosis) or sentinel events. Occurrence of self-harm resulting in injury, attempted self-harm, voluntary starvation (over 48 hours), acute psychiatric hospital admission and serious accident/injury resulting in hospitalisation are classified as ‘Other Incidents’. These are selected examples - a full list is provided at Annexure A
This system must be incorporated into the Policy and Procedures Manual which governs the administration of the contract. This must be submitted to DIAC by IHMS as part of its contractual obligations. Further, IHMS must immediately inform DIAC (within one hour) of any ‘Critical Incidents’ and provide a written report within four hours of such notification. For ‘Other Incidents’, IHMS must inform DIAC by a written report within 24 hours of becoming aware of the event (see Schedule 1, clause 8.2). This report must provide background information, details as to participants, and the sequence of events. It must describe all action taken by IHMS and service providers in response (see Schedule 1, clause 8.2(b)). A summary report of all Critical and Other Incidents must be provided by IHMS to DIAC within ten business days of the end of the month. After consideration of these reports by DIAC, the contract notes that IHMS must take ‘corrective or review action’ as agreed with DIAC (Schedule 1, clause 8.3).
These clauses and provisions would suggest that IHMS is bound by contract to notify DIAC of incidents such as self-harm, hunger strikes or attempted suicides. There does not appear to be any duty on DIAC to disclose this information, apart from during questioning at Senate Estimates or in response to a Question on Notice. It is unlikely that this information would be released by a third party as the contract expressly prohibits the members of the Health Services Manager Network to be established by IHMS (to provide the health services specified in the contract) from making public statements, releasing information or making statements to the media or publishing, distributing or make available information to third parties (Schedule 1, clause 5.4 (a) (xiii).
The Australian Medical Association (AMA) recently renewed its callfor greater transparency and accountability in the provision of health care to asylum seekers who are detained both on and off shore. The Greens have also put forward a Billto establish an independent panel of experts to report to the Parliament about the health care of asylum seekers in offshore processing countries (although, as noted by DIAC, in their submissionto the Senate Inquiry into this Bill, the operation of this panel will require the consent and agreement of the relevant governments).
The Expert Panel on Asylum Seekers proposed that the protection and welfare arrangements on Nauru should be monitored by a ‘representative group drawn from government and civil society in Australia and Nauru’ (paragraph 3.46). The Government has accepted this recommendation but, to date, this group has not been established. In the interim, the Minister has requested that selected members of the Council on Asylum Seekers and Detention provide adviceon the operational aspects of Nauru, including health services. Although the monitoring mechanisms for Nauru are yet to be established, the need for transparency and accountability remains. It is unclear how this might be achieved under current legislative frameworks. Asylum seekers being processed on Nauru are subject to Nauruan law. The Republic of Nauru
Refugee Convention Act 2012 is solely concerned with the determination of refugee status and merits review processes. It does not provide for health, accommodation, education and other services. The Australian Migration Act 1958 does not govern the situation in Nauru, and the Commonwealth Ombudsman does not have any power to investigate actions in Nauru (unless those actions are undertaken by Australian federal officials). It would appear that, under existing laws and frameworks, the most effective way to improve accountability and transparency would be regular, publicly available, reporting by DIAC about the number of adverse incidents on Nauru and Manus Island.