The Medical Evidence
55 As I have said, the applicant called Professor Jureidini and the Commonwealth called Professor Mullen. In the documents tendered in evidence there were reports of other psychiatrists and psychologists and of other medical practitioners. For example, there was a report of Dr Seyed Assadi, consultant psychiatrist, dated 17 August 2011, a report of Dr Joel Aizenstros, consultant psychiatrist, dated 29 December 2011, and a report of Dr Peter Young, dated 21 December 2011. Those reports may be relevant to the Commonwealth's knowledge at particular points in time, but in terms of the applicant's medical condition and the causes for it, I place most weight on the evidence of Professor Jureidini and Professor Mullen.
56 Professor Jureidini and Professor Mullen differed in terms of their diagnoses of the applicant's condition and as to whether the Commonwealth's assessment and treatment of the applicant during his detention had been appropriate. Other than in those areas, there was not a great deal of difference between them in terms of their opinions. I will summarise the evidence of each of them and then set out my findings with respect to the medical evidence.
57 Professor Jureidini is a child psychiatrist. He currently works as a senior child psychiatrist in the Department of Psychological Medicine at the Women's and Children's Hospital in Adelaide. He has over 25 years experience in child and adolescent psychiatry. His curriculum vitae sets out the articles and papers he has published in the fields of child and adolescent refugees, mental illnesses and the use of anti-depressants, depression in children and, more generally, mental illness in children and adolescents. He has been involved in both examining and treating children in detention and in examining and treating children after they have been released from detention. The Commonwealth did not challenge Professor Jureidini's qualifications and experience.
58 Professor Jureidini prepared five reports and they are dated 24 November, 3 December, 20 December 2011, 21 December 2011 and 20 January 2012 respectively. Those reports were tendered in evidence and, in addition, Professor Jureidini gave lengthy oral evidence. He was only briefly cross-examined for reasons which will become clear. Professor Jureidini has strong views about keeping children in detention and, it seems, about the use in psychiatry of concepts such as normal fortitude. I have taken those matters into account in assessing his evidence.
59 Professor Jureidini first saw the applicant by video-link on 22 November 2011. At that stage the applicant was being held at the Darwin Airport Lodge facility and the interview took place two days before the applicant attempted to commit suicide. In his first report, Professor Jureidini set out a history of the applicant's circumstances and he then addressed a series of questions. Two points about the applicant's history as recorded by Professor Jureidini should be noted. The first is that the applicant reported that his state of well-being deteriorated about five months after he arrived in Australia, and he began to cut himself. The second is that the applicant felt that the more he saw counsellors, "the worse he gets". Professor Jureidini expressed the opinion that the applicant was "significantly psychologically impaired". He expressed the opinion that the applicant met the criteria for a major depressive disorder and that he considered the applicant's depression to be severe. Professor Jureidini said that a reaction to being held in immigration detention "exacerbated by what he must experience as the cruelty of having refugee status but not being granted a visa" were the causes of the applicant's psychiatric condition.
60 Professor Jureidini referred to the fact that the applicant was a minor and that, as a minor who could not currently be reunited with his family, "he should be placed in a supportive, preferably family based environment". He said that the current manner and level of treatment of the applicant was not adequate to meet the applicant's needs, "most importantly because it has been conducted in the environment which is causing the damage".
61 Professor Jureidini spoke to the applicant by telephone on 2 December 2011, at which time the applicant was being held in MITA. Professor Jureidini then prepared his second report dated 3 December 2011. It does not add to his first report in any respect which is presently material.
62 Some time between 2 December 2011 and 19 December 2011 the applicant was advised that he had been given an adverse security assessment. Professor Jureidini spoke to the applicant by telephone on 19 December 2011 and he then prepared his third report which is dated 20 December 2011. Professor Jureidini said that transferring the applicant to community detention would decrease the applicant's risk of self-harm or suicide, increase the treatment available to the applicant and would be much more likely to secure the applicant's safety than detention at immigration detention facilities such as MITA, the Darwin Airport Lodge or the Villawood Detention Centre.
63 In his fourth report dated 21 December 2011, Professor Jureidini sets out the reasons why, in his opinion, the applicant should be removed from the detention environment and placed in community detention. The community detention Professor Jureidini had in mind was a house supported by the Hotham Agency, with one other Iraqi boy, staffed by mature carers, many Arabic speaking, who have an educative as well as supervisory role.
64 Professor Jureidini interviewed the applicant on 20 January 2012. In his fifth report Professor Jureidini said that he agreed with the opinion of Dr Joel Aizenstros set out in his report dated 29 December 2011 as to the causes of the applicant's condition. Dr Aizenstros saw the applicant at the request of IHMS on 23 December 2011 and in his report he identified the cause of the applicant's psychiatric condition in the following passage:
In my opinion, the cause of his condition relates to a combination of traumatic upbringing, illicit substance dependence and withdrawal, imprisonment of his father in Indonesia, and traumas related to his experiences in multiple detention centres while awaiting deliberations of his refugee status and release to the community in Australia, following his illegal arrival in 2010.
65 Again, Professor Jureidini expressed an opinion about the effect of the place of detention on the applicant's mental condition. He said that the applicant did not require any special environment or hospitalisation, but that it would be therapeutic for him to be in an environment "where he is free to come and go as he pleases and has appropriate social supports".
66 Professor Jureidini said that the major cause of the applicant's mental condition was his "detention experience". In his oral evidence-in-chief he described what he meant by that expression and he said that he was referring to intrusive searches, inspection and monitoring by staff and the frustration caused by the bureaucracy associated with being in detention. Professor Jureidini said that the proper treatment was removal to a more appropriate environment which he described in various ways, including a family-type environment and an environment where he had older people around him who would guide and nurture him. Professor Jureidini said that placing a person who is a suicide risk on close watch is likely to exacerbate their mental problems rather than alleviate them.
67 Professor Jureidini was taken through the joint report of Professors Mullen and Ogloff, dated 21 January 2012, and he said he agreed with many of the statements in it. He said that while he agreed with Professors Mullen and Ogloff that the applicant met the criteria for an adjustment disorder he also met the criteria for a major depression. In those circumstances one would not diagnose an adjustment disorder because it is "a lesser diagnosis".
68 Professor Jureidini said that it was the incarceration of the applicant which was causing his mental health problems and the "package" that goes with it, "the incarceration, the guards, the bureaucratic cruelty, the exposure to other people's distress, all those things". He agreed in cross-examination that the applicant could not be helped in a real way unless he is taken out of the current form of immigration detention and put in community detention. He agreed that it was the detention experience that has caused and is exacerbating his mental condition. He was asked about the effect of good treatment if the applicant remained in detention. The following exchange occurred:
So the best treatment in the world would not make any real difference to his mental condition, if he remains where he is or in that form of detention? … The best treatment that he could receive in his current environment wouldn't significantly alter his condition.
69 Professor Jureidini expressed the opinion that the assessment and treatment of the applicant had not been appropriate. He had not received supervision appropriate for his mental health and the response of those caring for the applicant to his attempt at suicide (that is, keeping him in hospital for one night and then returning him back to the detention environment) was not a reasonable response. Other than what I have just said, Professor Jureidini did not go through the history of the applicant's treatment and give evidence of specific instances of inadequate treatment.
70 Professors Mullen and Ogloff interviewed the applicant at MITA on 19 January 2012 and their joint report is dated 21 January 2012. Professor Mullen gave oral evidence-in-chief and he was cross-examined at some length. He agreed that he had allowed himself to become an advocate for Mr David Hicks "perhaps wrongly" and that is a matter I take into account in assessing his evidence. Professor Mullen said that he reviewed the documentation and set out a summary of his review in his report. Professor Mullen noted the following incidents of self-harm by the applicant and one attempt at suicide:
(1) Self harm in Indonesia sometime in 2010.
(2) Superficial cutting and head banging on or about 24 April 2011.
(3) Another episode of head banging and inflicting cuts to his arms on or about 5 June 2011.
(4) Sewed his lips together with two other residents on or about 24 July 2011.
(5) An episode of cutting to the wrists on or about 24 August 2011.
(6) A probable episode of cutting on 21 September 2011 and an episode of cutting on 24 September 2011.
(7) An episode of cutting on or about 13 October 2011 and a further episode involving superficial lacerations to the top of his head on or about 15 October 2011.
(8) Attempted suicide by suspending himself from a shower rose and kicking the chair he was standing on away on 24 November 2011.
71 Professor Mullen also noted that the applicant had failed to attend a number of medical appointments. The following is a summary taken from Professor Mullen's report:
(1) He failed to attend two appointments with a psychologist on Christmas Island after 16 January 2011.
(2) He failed to attend an appointment for a mental health review on 3 June 2011.
(3) He failed to attend appointments with a mental health nurse on 14, 16 and 24 June 2011.
(4) He failed to attend appointments on 1, 2 and 3 August 2011.
(5) He failed to attend two appointments with a counsellor between 25 August 2011 and 21 September 2011.
(6) The applicant declined an appointment with a psychologist on 26 September 2011.
(7) The applicant refused an appointment with a general practitioner on 18 October 2011.
(8) The applicant declined to see a counsellor at the Melaleuca Refuge Centre on 24 November 2011.
72 Professor Mullen reviewed the report of Dr Assadi, the first three reports of Professor Jureidini and the report of Dr Joel Aizenstros.
73 Professor Mullen said that he noted that Professor Jureidini expressed trenchant criticisms of the quality of support and care provided by the mental health services during the detention of the applicant.
74 Professor Mullen described his observations of the applicant during the interview on 19 January 2012. He expressed number of opinions. First, he said that the applicant does not have major depression. Secondly, he said that the applicant's attempts to hang himself were serious and he remained at high risk of a repetition, particularly if his circumstances remain unchanged. Thirdly, he said that the applicant did not have a personality disorder, but he did have an adjustment disorder accompanied by depressed mood, anxiety and behavioural disturbances. Fourthly, he said that, should the applicant be held in detention on an ongoing basis, it is inevitable that his mental state and behaviour will again deteriorate and "there is a real risk that he would once again engage in a potentially lethal suicide attempt".
75 Professor Mullen also expressed the opinion that given the applicant's relative youth, difficult history, prior substance abuse and degree of social immaturity and isolation he appeared to be more vulnerable than other people his age under similar circumstances. Professor Mullen said that the adjustment disorder the applicant experienced and his dysfunctional reaction to being detained would not have occurred but for him being placed in immigration detention.
76 Professor Mullen was asked whether the applicant's medical condition was an inherent and inevitable risk of him being held in a detention centre. His response was as follows:
While [SBEG] experienced some adverse psychiatric symptoms while in the community, the range and severity of conditions he has experienced since coming to Australia are an inevitable risk of him being in a detention centre. In particular, his risk of suicide, as evidenced by the nearly lethal episode of attempted hanging in November 2011, is inherently related to him being in immigration detention.
77 In terms of the applicant's treatment while in detention, Professor Mullen expressed the opinion that it had been appropriate, subject to the one exception, and that was that following Dr Assadi's examination he was not provided with ongoing treatment by a clinical psychologist. He also said that, although following the self-harm incidents and attempted suicide the applicant may have benefited from more intensive clinical work with a clinical psychologist or psychiatrist, the fact that the precipitants were "situationally determined" made it unlikely that any degree of clinical intervention would have been particularly beneficial.
78 Professor Mullen expressed the opinion that the applicant was being managed appropriately from a medical perspective. He concluded his report by saying that the issue with the applicant is not so much the place of accommodation; "it is the fact that he is being detained that has been difficult for him".
79 In cross-examination Professor Mullen agreed that the applicant should have been the subject of a proper psychiatric assessment at Darwin Hospital after his attempt to commit suicide. He did not receive appropriate psychiatric support and treatment for that event. Professor Mullen agreed that the applicant was not seen by a psychiatrist (other than Professor Jureidini who was preparing a report for the applicant's solicitors) from the date of his suicide attempt to the date upon which he saw Dr Aizenstros (that is, 23 December 2011). Nor did he see a psychologist, despite the fact that he had an appointment to do so on 12 December 2011 which he did not attend. Professor Mullen was taken to a note written by a mental health nurse, Ms Sharon O'Reily, sometime between 15 December 2011 and 18 December 2011. She referred to the fact that the applicant had significant concerns about returning to MITA as he felt unsafe amongst the adult population. He was also taken to a non-consultation note of Ms O'Reily which contained a recommendation that the applicant be placed in community detention in order to minimise ongoing risks of self-harm or suicide.
80 Professor Mullen was asked questions about an email written by Ms O'Reily on 9 January 2012. It is useful to set that email out because it reflects the views of at least one person treating the applicant in detention.
Email sent to detention health
I am writing following up on my email dated the 23.12.11 regarding my concerns for this young man. [SBEG] has a significant history of self harm whilst in detention, the last being in Darwin of a reported attempted hanging. [SBEG] has been going through court proceedings and his court case outcome was given to him today which was not a good outcome.
[SBEG] was expecting that the courts would release him to the community which did not occur. [SBEG] has just turned eighteen and has received a negative security clearance.
Now that he feels he has no hope of community detention I am even more concerned about his risk of self harm and or suicide escalating.
I have reviewed him today and he reports that he is worried he will self harm, and has also stopped eating and drinking.
PSP has been initiated but I need to highlight, that as long as this young man remains in detention he will present as a high risk of self harm and possibly suicide.
He has had numerous psychiatric reviews, the last review recently for the court appearance. His diagnosis is Chronic Adjustment Disorder with an anxious and depressed mood in remission, but it was highlighted he could decompensate quite rapidly in the context of emotional distress which is what is occurring now. The prognosis is that [SBEG] will continue to be a high risk of self harm whilst in detention.
If you would like a copy of the psychiatrist report, please advise.
I would appreciate any feedback.
81 Professor Mullen agreed that there was no evidence that Dr Assadi's recommendations in his report dated 17 August 2011, which included that the applicant be referred to a clinical psychologist for psychotherapy, were implemented.
82 Professor Mullen said that the greater the freedom and the less the uncertainty, the better the applicant is likely to function. Professor Mullen said that no form of mental health care is likely to have a major impact because "the nature of the stresses and distress stem from a situation in which this young man finds himself" and, "in the end, what caused the problems was the situation he was in, not the lack of any particular form of mental health intervention". Professor Mullen said that it was his opinion that if there is no change to the applicant's environment then he is at a very real risk of dying.
83 The findings I make with respect to the medical evidence are as follows.
84 First, the applicant has a psychiatric illness which is either a major depressive disorder or an adjustment disorder accompanied by depressed mood, anxiety, and behavioural disturbances. The latter is included within the former and is a "lesser" diagnosis. I do not think that I can choose between the two. The precise diagnosis was not a prominent feature of either party's case and there was no extended cross-examination of Professor Jureidini or Professor Mullen which might assist me in reaching a clear conclusion. There is nothing inherent in the evidence of either of the witnesses which enables me to feel confident about the correct diagnosis. Matters such as the fact that Professor Jureidini is a child psychiatrist and Professor Mullen is a forensic psychiatrist would not in my view be a sufficient basis to conclude that one opinion ought to be accepted over the other. I am able to conclude that the applicant has a psychiatric illness which fluctuates in terms of symptoms and which is of sufficient seriousness to lead to acts of self-harm from time to time and an attempt to commit suicide. As Professor Mullen said, if the applicant is held in detention on an ongoing basis it is inevitable that his mental state and behaviour will again deteriorate and "there is a real risk that he would once again engage in a potentially lethal suicide attempt".
85 Secondly, the applicant's psychiatric illness results from a number of factors, including his traumatic upbringing, illicit substance dependence and withdrawal, the imprisonment of his father in Indonesia and traumas associated with his detention since his arrival in Australia in December 2010. The primary cause of his present psychiatric illness is his detention and what Professor Jureidini referred to as the detention or incarceration environment. A further contributing factor in 2011 was the fact that he had been assessed as having refugee status, but prior to being advised of the adverse security assessment in December 2011, was uncertain about when he might be released and, after the assessment, knew that he could be detained indefinitely.
86 Thirdly, the only effective treatment for the applicant's condition is release from the detention or incarceration environment. There were many statements of a general nature about the environment which would eliminate those circumstances which are presently contributing to the applicant's mental illness. The effect of the evidence is that those circumstances would be eliminated if he was in a place where he was free "to come and go as he pleases and has appropriate social supports" (see above at [65]). Other than a residence determination under s 197AB of the Act, the applicant was not able to identify a place or a precise set of circumstances which would eliminate the causative factors. Professor Mullen said that the "big problem" was the applicant's loss of freedom and the uncertainty as to his future and that "anything that moves towards giving him greater freedom and greater hope for the future will improve the outcome". The applicant built an argument on this statement to the effect that the Commonwealth was in breach of its duty of care in not moving the applicant to an environment which would provide him with greater freedom, albeit not one in which he is free to come and go as he pleases.
87 Fourthly, although Professor Jureidini made general statements about inadequate assessment, treatment and supervision of the applicant by the Commonwealth, he did not identify any particular instances of a failure to render appropriate medical treatment other than the instance referred to above (at [69]). His point was that the applicant could not receive appropriate treatment "because it has been conducted in the environment which is causing the damage". He said that the transition to new environments was a source of additional trauma and "intensify the need for transition to a more sympathetic environment". He said that events in August, including Dr Assadi's psychiatric assessment, should have alerted the authorities to the need for the applicant "to be removed from that detention environment". He said that the psychiatric care provided in detention has never been appropriate because "those attempting to minister to his needs have not had the option of placing him in an environment that was not exacerbating the damage being done to him".
88 Professor Mullen had considered the medical notes, or at least a substantial portion of them, and he expressed the opinion that the applicant's treatment was appropriate. He applied a standard of the treatment that could be expected by an ordinary member of the Australian community. I am not sure that, expressed in those simple terms, that is the appropriate standard because of the very different circumstances between the applicant's detention and the position of an ordinary member of the Australian community. I note, for example, the IHMS contract adds the rider of "taking into account the particular health needs of People in Detention". At all events, when Professor Mullen was cross-examined, other than some questions about whether the recommendations in Dr Assadi's report of 17 August 2011 should have been implemented, the primary focus of the cross-examination was on how the applicant should have been treated after his attempt to commit suicide on 24 November 2011. Mr Kelly was cross-examined extensively by reference to the medical records and the Department's records about how the applicant has been treated since he arrived in Australia, but, as he made clear on a number of occasions, he has no medical expertise.
89 As part of their closing addresses both parties submitted detailed chronologies and other documents addressing the applicant's circumstances and treatment since he arrived in Australia. The other documents included charts showing medical appointments the applicant attended and appointments he missed. The point to be made is that a number of the events and circumstances were not the subject of specific medical evidence. This will be significant when I come to consider the applicant's specific acts of negligence case.
90 I have considered the medical and other records and the chronologies and other documents. I will provide a summary of the relevant events. It is not necessary for me to go any further than that because I am able to decide the applicant's form of detention case by reference to the scope of the duty of care, and the applicant's specific acts of negligence case by reference to the requirement that any breach or breaches cause the loss or damage.
91 I turn now to examine the applicant's condition, circumstances and treatment by reference to the particular places at which he was detained.