For full text visit: https://www.mja.com.au/journal/2004/180/5/legal-and-ethical-implications-medically-enforced-feeding-detained-asylum-seekers

“The Australian Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) can authorise physicians, under Migration Regulation 5.35, to provide non-consensual medical treatment. In 2001, DIMIA issued about 40 authorisations for compulsory medical treatment. Such actions risk violating international medical guidelines…

The Secretary of DIMIA can…authorise non-consensual treatment, including the use of reasonable force (eg, the use of restraints and sedatives)…

According to Hansard, the regulation [to authorise medical treatment without patient consent] received no parliamentary attention or debate at the time of its introduction. Nor has it been the subject of any challenge in Australian courts. Yet legal opinion suggests that, if challenged in court, the regulation would most likely be struck out. It is noteworthy, too, that the Human Rights and Equal Opportunity Commission has recommended that Parliament repeal the regulation.

A long-established common law principle upholds the right to individual self-determination, including the choice to refuse treatment. Persons deemed to be of full mental capacity can refuse treatment, even if that act is tantamount to suicide. A medical practitioner who performs medical treatment without the patient’s consent can be held to have committed an assault. This could give rise to a claim of damages…

It has been argued that force-feeding of hunger-striking prisoners represents the state’s duty to preserve the life of detainees, an imperative that overrides issues of autonomy. Yet, in the United Kingdom, a series of court decisions has endorsed the principle of autonomy and self-determination in relation to hunger strikes, reaffirming the prisoner’s rights to refuse treatment…

The medical literature indicates that death from hunger strikes can occur between 42 and 79 days of a complete fast. After about a week, the hunger striker experiences dramatic weight loss. In the following weeks, the liver and intestines atrophy, followed by the heart and kidneys. The pulse slows and blood pressure falls. Patients complain of fatigue, headache, faintness and dizziness. By about the 40th day, the striker becomes seriously ill, is bedridden and suffers concentration problems and apathy.

The course of physical and cognitive deterioration means that assessment of a hunger striker’s mental state and intentions needs to be undertaken early, while they remain mentally competent. As mentioned, in such an assessment, the evidence needs to be weighed up as to whether manifestations of despair and demoralisation are a realistic response or reflect a form of mental illness that in itself impairs competency. If symptoms of despair and hopelessness are reality-based, then standard antidepressant treatments may not necessarily be effective, especially if the environmental conditions generating the despondency (prolonged incarceration and threat of forced repatriation) are not alleviated. ..

The difficulty with adhering to universal principles is that hunger strikes almost always occur in a context of competing interests and conflicting administrative and clinical priorities. Clinicians often are at the centre of such institutional pressures, particularly when their employment contract makes them directly responsible to detention or government authorities who have an interest in ensuring the quick termination of actions perceived as undermining the peaceful and effective management of detention centres. Such ethical dilemmas confronting the practitioner in the detention centre environment are not dissimilar to those facing clinicians in other custodial settings. Detailed ethical guidelines have already been developed for these settings…”

 

 

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