"If I was to suggest to you that in fact medical reports were sent to DIMIA in January, relating to both these detainees, that suggested they should be treated in a different manner than DIMIA was in fact treating them - recommendations in relation to treatment were different; is there a protocol or a procedure for DIMIA to deal with conflicting medical reports of that nature? … ---I don't think there's a standard policy document that would set out a process.
If you then understand that there were further reports consistent with the original reports provided to DIMIA, would there be any concern that your department would have about, therefore, the quality of your own contracted staff?---Yes, I think broadly there would be. We'd firstly talk to our contracted staff, ask them to look at that report and give us some advice about what their opinion of that is: emphasis added.
Do you know whether that happened in this case? Were the contracted staff asked in relation to Applicant M and S to report and advise on first of all the reports sent in January and secondly in relation to the latest reports of Dr Jureidini?---I'm not sure about the second part, whether they were asked to advise. They were certainly provided with the report. Whether they were asked to respond back to the department I'm not sure, not having seen the files in detail, or not having really seen the files, individual case files": emphasis added.
167 Ms Kannis' evidence is that when she returned from leave in mid-January, she was aware of the above reports, that they had been sent on to the GSL manager and that they were referred to the health services. The tenor of Ms Kannis' evidence is that she would have relied on the advice of the health services doctors as to what should happen next after receipt of the reports. It is not clear that she ever sought or was given actual advice from the health services on the two reports or, for that matter, on Dr Jureidini's later reports. As to the latter, when asked what she did given her stated concern about the conflicting treatment opinions given by Dr Jureidini and Dr Frukacz, Ms Kannis said:
"Well, as I said, I have greater confidence in the report of the psychiatrist who has seen a person and has access to the reports and access to discussions with the other health services people who have been attending him. I have greater confidence in his report than a report concocted after an hour or two of a consult or assessment or whatever it was": emphasis added.
168 Ms Kannis' evidence generally on how she would deal with conflicting medical reports is contained in the following passage of cross-examination:
"As the manager at Baxter, if you received two conflicting medical reports - one obtained externally, one obtained through the Professional Support Services that you've contracted - that have separate or different recommendations about treatment, what if anything would you do about the health needs of that detainee?---Well, I wouldn't by myself make the judgment that there was conflict in medical reports. They're technical and professional reports. I would take advice on that, but we do have the option of getting a third opinion, and we've done this in the past, so that's one possibility.
Is that something you will independently consider, or do you just pass that back to Professional Support Services?---That would be something I would probably discuss with my central office colleagues, that there's apparent conflict here that doesn't seem to be able to be resolved locally, if that's the case, and my suggestion would be that we would obtain a third opinion.
You know now, in relation to Applicant M, that there's a conflict between what Dr Frukacz says, what Dr Jureidini says and what Dr Richards says, don't you? You know there's a conflict in treatment recommendations don't you, as the manager at Baxter?---I'll take your word for that."
169 Mr Saxon's evidence is that he received the Dudley and Richards reports by mail. He sent them to IHMS. He did not follow up what was done by IHMS. He was not a medical person. He relied on the GPs. Ms Hinton's evidence is that she did not read the reports until she went to Baxter on 8 February 2005. When she was there she asked Ms Cowper whether she was familiar with the reports. She was and she did not tell Ms Hinton she was unhappy with the level of care being given on the basis of the reports. Ms Hinton knew at that time that S was not "engaging in counselling with Ms Cowper". I would again note that neither Ms Cowper nor Mr Micallef (PSS psychologist at Baxter in December - January 2005) gave evidence in these proceedings.
170 It is Dr Schroff's evidence that "[i]n light of the report of psychiatrist Dr Dudley … [S] was seen by Dr Gequillana on Friday 4 Feb 2005 and referred to … Dr Frukacz". It would seem that M was not similarly seen for psychiatric assessment by a GP in consequence of Dr Richards' report, although he was seen by a GP on a number of occasions between 20 January 2005 and when he saw Dr Frukacz on 12 February 2005.
171 The reports of Dr Dudley and Dr Richards were, in my view, treated by the health care providers with relative uninterest and without any sense of urgency. This response is particularly surprising in the case of Dr Dudley's report. It was the first assessment of S by a psychiatrist that was received by the Commonwealth. It was simply passed on to GSL. The GSL response was to pass the reports to IHMS (at some uncertain date) and an IHMS engaged GP then referred S to Dr Frukacz for an assessment which was to be held at least six weeks after Dr Dudley saw S. It does not appear that the Commonwealth sought or received advice on the matter after passing on the reports.
172 Though Dr Richards' report and note sent inconsistent messages (the note being far more circumspect in tenor), they appear not to have provoked a direct response. The IHMS notes make no reference to Dr Richards. The first GP medical consultation they note of any consequence did not occur until 20 January 2005. The first PSS note of consequence in January 2005 did not occur until 28 January. Dr Schroff's affidavit of 8 February 2005, while indicating that he had read (inter alia) Dr Richards' report for the purpose of preparing the affidavit, makes no note of it in the context of his account of M's treatment.
173 While Dr Richards' report and note may possibly have provided some stimulus to having M's name put on the list to see Dr Frukacz for 12 February, it did not influence the treatment given M in the interim. And it was not the subject of advice to DIMIA.
174 The reports of Drs Dudley, Richards and Jureidini did not prompt action and inquiry by DIMIA to inform itself as to the health care actually being provided to (amongst others) S and M by its service providers. It is difficult to resist the conclusion that those reports were disregarded in substance. This may well have been because, rightly or wrongly, they were perceived to be authored by critics or opponents of the manner of conduct of immigration detention at Baxter. In the proceedings before me the Commonwealth has sought to paint these doctors as advocates of a cause and to impugn their professionalism in consequence. In my view, the lack of professionalism has been demonstrated by others.
175 As I indicate later in this reasons, the nature of the conflict of opinion as it has evolved up to the hearing of these matters made it unreasonable for the Commonwealth to rely and to continue to rely on the "advice" of Dr Frukacz without first obtaining competent third party reassurance that it was reasonable to do so.