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MJA Vol 180 1 March 2004 237
CLINICAL ETHICS
The Medical Journal of Australia ISSN: 0025-729X 1
March 2004 180 5 237-240
©The Medical Journal of Australia 2004
www.mja.com.au
Clinical Ethics
HUNGER STRI KES BY ASYLUM SEEKER S have occurred in
Australia since the introduction of the policy of mandatory
detention over a decade ago.1 At times, the number of
asylum seekers involved in this form of protest has reached
crisis point, with over 200 detainees embarking on a hunger
strike at the Woomera Immigration Reception and Process-
ing Centre in 2002. Hunger strikes are a politically charged
issue, with the former Australian Minister for Immigration,
Multicultural and Indigenous Affairs (Phillip Ruddock)
asserting that such actions are manipulative efforts by
detainees to gain refugee status.2-4
The Australian Department of Immigration and Multi-
cultural 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.4
Such actions risk violating international medical guidelines.
It is therefore timely to examine both the legal and ethical
implications for doctors if they coercively rehydrate or force-
feed detained asylum seekers.
Reasons for food refusal
The World Medical Association (WMA) has defined a
hunger striker as a “mentally competent person who has
indicated that he [or she] has decided to refuse to take food
and/or fluids for a significant interval”.5 The motivations
underlying hunger strikes by asylum seekers are complex. A
study in the United States indicated that asylum seekers
embark on hunger strikes in the early phase of detention to
express their distress and opposition to incarceration. In the
later stages of detention, especially after refugee claims have
been rejected, hunger strikes commonly represent a desire to
die rather than to be forcibly repatriated to situations of
danger.6
The relationship between hunger strikes and mental ill-
ness is complex. A study of hunger-striking political prison-
ers in South Africa found that 77% were clinically
depressed.7 Nevertheless, the presence of mental illness
does not mean ipso facto that a hunger striker is not
competent to make decisions about pursuing the protest.
Asylum seekers held in immigration detention centres in
Australia may have been exposed to high levels of trauma in
their countries of origin and during their journey to Aus-
tralia.8 After arrival, they experience ongoing stresses,
including separation from family, interviews with immigra-
tion officials, and delays in the asylum application process.
They also experience social isolation, boredom and frustra-
tion. Rates of depression and related disorders in detention
appear to be extraordinarily high, particularly among those
held for prolonged periods.9,10 It is imperative that a com-
prehensive psychiatric assessment is made early in a hunger
strike to decide whether depressive or other symptoms are
primarily reactive to environmental circumstances, or
whether the competence of the person to decide to pursue
the strike is impaired by a severe depressive illness or
associated morbid mental state.
Legal aspects
The Australian Government introduced a regulation in
1992 which empowers DIMIA to authorise medical treat-
Legal and ethical implications of medically enforced feeding
of detained asylum seekers on hunger strike
Mary A Kenny, Derrick M Silove and Zachary Steel
ABSTRACT
■The current practice of non-consensual medical treatment
of hunger-striking asylum seekers in detention needs closer
inquiry.
■An Australian Government regulation empowers the
Department of Immigration and Multicultural and Indigenous
Affairs (DIMIA) to authorise non-consensual medical
treatment for a person in immigration detention if they
are at risk of physical harm, but there are doubts about
whether the regulation would withstand legal challenge.
■Authorisation by DIMIA does not compel medical
practitioners to enforce treatment if such action is contrary
to their “ethical, moral or religious convictions”.
■The World Medical Association has established guidelines
for doctors involved in managing people on hunger strikes.
The Declaration of Tokyo (1975) and the Declaration of
Malta (1991) both prohibit the use of non-consensual force-
feeding of hunger strikers who are mentally competent.
■If called upon to treat hunger strikers, medical practitioners
should be aware of their ethical and legal responsibilities,
and that they should act independently of government or
MJA 2004; 180: 237–240
institutional interests.
School of Law, Murdoch University, Murdoch, WA.
Mary A Kenny, BJuris, LLB(H ons), LLM, Senior Lecturer, School of Law,
Murdoch University.
School of Psychiatry, University of New South Wales, and
Centre for Popula tion Mental Health Research, South
Western Sydney Area Health Service, Liverpo ol, NSW.
Derrick M Silove, FRANZCP, MD, Professor, School of Psychiatry,
University of New South Wales;
Zachary Steel, BA (Hons), MPsychol (Clinica l), Senior Lecturer, School of
Psychiatry, University of New South Wales.
Reprints will not be available from the authors. Correspondence:
Ms Mary Anne Kenny, School of Law, Murdoch University, South Street,
Murdoch, WA 6050. m.kenny@murdoch.edu.au
CLINICAL ETHICS
238 MJA Vol 180 1 March 2004
CLINICAL ETHICS
ment to be given to a person in immigration detention
without their consent (Migration Regulations 1994 (Cwlth),
Regulation 5.35). The regulation is invoked when a Com-
monwealth Medical Officer or registered medical practi-
tioner provides written advice to the Secretary of DIMIA
that:
■if medical treatment is not given to a particular detainee,
there will be a serious risk to his or her life or health; and
■that the detainee refuses to give, or is not reasonably
capable of giving, consent for the medical treatment.
The Secretary of DIMIA can then authorise non-consen-
sual treatment, including the use of reasonable force (eg, the
use of restraints and sedatives). Authorisation by DIMIA
does not compel medical practitioners to enforce treatment
if such action is contrary to their “ethical, moral or religious
convictions”.11
According to Hansard, the regulation received no parlia-
mentary 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.12 It is
noteworthy, too, that the Human Rights and Equal Oppor-
tunity Commission has recommended that Parliament
repeal the regulation.1
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.13 This could give rise to a claim of
damages.
Arguments have been put that there are exceptions to this
common law principle, particularly when it is in the state’s
interest to intervene. 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.14 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.15
In summary, there are serious questions about whether
the existing Australian regulation would be upheld if chal-
lenged in court, as the instrument is not consistent with
common law principles and may be in breach of inter-
national human rights law.
Clinical complexities
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.16 ,17
The course of physical and cognitive deterioration means
that assessment of a hunger striker’s mental state and inten-
tions needs to be undertaken early, while they remain men-
tally competent.18 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 compe-
tency. If symptoms of despair and hopelessness are reality-
based, then standard antidepressant treatments may not
necessarily be effective, especially if the environmental condi-
tions generating the despondency (prolonged incarceration
and threat of forced repatriation) are not alleviated. The case
study in the Box illustrates this dilemma.
Ethical issues
From an ethical perspective, the practitioner caring for
hunger strikers confronts the tension between, on the one
hand, the imperative to preserve life and, on the other,
respect for the autonomy of the individual. Australian
practitioners face the added complexity of reconciling ethi-
cal and medical issues with the priorities of government
policy, particularly the state’s interest in maintaining order
Case study — realistic despair or mental illness?
A young male detaine e commenced a hung er stri ke in a remote
detention centre after his claim for refugee status had been
rejected. The initial strike was a prot est about his treatment in
detention, which he alleged had involved a period of solitary
confinement and physical restraint. During the first strike, he was
rehydrated intravenously under Regulation 5.35. Some months later
he again refused food and was rehydrated and fed through a
nasogastric tube on several occasions under Regulation 5.35. He
developed symptoms of severe depression with associated weight
loss of over 10 kg. After 2 months of failed treatment with an
antidepressant, he was transferred to a metropolitan hospital.
Attending clinicia ns judged that he was no longer on active hunger
strike and that his symptoms of anorexia, hopelessness, loss of
interest, and vague suicidal thought s amount ed to clinical
depression. Electroconvulsive therapy, intravenous hydration and
nasogastric feeding were recommended by the treating staff. The
patient refused consent, leading to Regulation 5.35 being invoked.
There was some initial improvement in the patient’s cond ition with
this regimen of enforced treatment, b ut his depression then
worsened while treatment was ongoing and he again refused food.
Nasogastric feeding was recommended. The patient instructed his
lawyers that he did not wish this procedure to be administered,
as it caused him pain and discomfort. The hospital staff asserted
that they were acting under the authority of the Secretary of the
Department of Immigration, Multicultural and Indigenous Affairs
(DIMIA). Although the patient was despondent, his concerns about
his plight appeared to be reality-based, and his lawyers judged that
the patient was acting competentl y in ch oosing not to have further
treatment. The lawyers advised the hospital that they would
challeng e the authority of Re gulation 5.35, and indicated that they
would seek an injunction to prevent the administration of further
enforced treatment. It was pointed out that t he Regulation did not
require a medical practitioner to act contrary to standing ethical
guidelines.
As it transpired, no further treatment was necessary, as the patient
voluntarily recommenced fluid and food intake. He was eventually
released into the community on a bri dging visa pending
determination of his claim.
MJA Vol 180 1 March 2004 239
CLINICAL ETHICS
and security in detention centres during a period of political
controversy about detention. DIMIA itself discharges com-
plex and potentially conflicting roles: this single government
authority is responsible for apprehending and detaining
asylum seekers, for determining their refugee status, for
discharging an ongoing duty of care, and for enforcing
repatriation of those whose claims for asylum fail.
Yet international ethical guidelines are unequivocal in
their directives to practitioners managing hunger strikers.
According to the WMA’s Declaration of Tokyo (1975):
Where a prisoner refuses nourishment and is considered by
the doctor as capable of forming an unimpaired and rational
judgement concerning the consequences of such a voluntary
refusal of nourishment, he or she shall not be fed artificially.
The decision as to the capacity of the prisoner to form such
a judgement should be confirmed by at least one other
independent doctor. The consequences of the refusal of
nourishment shall be explained by the doctor to the pris-
oner.19
The principles of the Tokyo Declaration were endorsed by
a position statement of the Royal Australasian College of
Physicians in July 1993.20
The preamble to the Declaration of Malta (1991) (revised
in 1992) underlines the ethical risks facing doctors working
with government agencies:
The ultimate decision on intervention or non-intervention
should be left with the individual doctor without the inter-
vention of third parties whose primar y interest is not the
patient’s welfare.5
At the same time, this provision does not allow a physician
acting alone to compel treatment, as the Declaration makes
it clear that if a physician tends towards compulsory inter-
vention the “patient would then be entitled to be attended
by another doctor”. However, the Declaration of Malta does
provide that a doctor may make his or her own decision
regarding treatment if hunger strikers are in a state in which
they “become confused and [are] therefore unable to make
an unimpaired decision or [have] lapsed into a coma”.
The difficulty with adhering to universal principles is that
hunger strikes almost always occur in a context of compet-
ing interests and conflicting administrative and clinical
priorities. Clinicians often are at the centre of such institu-
tional pressures, particularly when their employment con-
tract 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.21
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 set-
tings.22,23
A decision not to intervene and to allow a person to die is
extremely difficult for a physician to make. Fortunately,
most hunger strikes end without fatalities. It is imperative,
however, that hunger strikers be fully assessed early in their
strike to assess both their mental state and their genuine
intentions, ideally in the form of a confidential advance
directive. For such a medical assessment to be legitimate,
the hunger striker must feel convinced that the doctor is
acting independently and impartially, and not only in his or
her capacity as an employee of the detention centre or
hospital. The striker also must be advised in detail about the
medical consequences of refusing food and about the value
of supplementing the fast with essential minerals and vita-
mins to prevent irreversible neurological damage.
In the case study outlined, the health professionals
involved were dealing with a distressing situation of a young
man who was deteriorating physically and mentally. The
health professionals undoubtedly believed they were acting
in what they perceived to be his best medical interests, but
their reliance on (or compliance with) the immigration
regulation inevitably raises concerns about the truly inde-
pendent nature of such judgements.
Conclusions and recommendations
Reports of force-feeding of detainees by doctors are a cause
for great concern. Whether the physicians involved are
acting in ignorance of international guidelines or under
duress, it is important to reiterate that, in most cases, such
actions contravene the basic human rights of asylum seek-
ers. Doctors coming into contact with a detainee on hunger
strike should be aware of their professional, legal and ethical
obligations. Despite serious doubts about the legitimacy of
Regulation 5.35, until it is challenged in the courts it will
provide authority to administer treatment against the con-
sent of a detainee. However, medical practitioners may be
acting unethically by relying on this provision.
If contemporary international and local ethical guidelines
on the medical management of hunger strikers are inade-
quate or inappropriate, then representations need to be
made to the WMA and the relevant specialist colleges to
consider a review. At present, however, doctors who violate
the ethical guidelines promulgated by these bodies risk
facing the charge of unethical conduct. A wider campaign of
medical education is needed to ensure that all practitioners
are aware of their medical, ethical and legal responsibilities if
ever called upon to manage hunger strikers. Consideration
could be given to developing independent ethics panels to
guide individual doctors, given the highly complex and
politicised context in which hunger strikes occur, whether
among asylum seekers or other detainees.21
References
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240 MJA Vol 180 1 March 2004
CLINICAL ETHICS
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(Receiv ed 20 Aug 2003, acc epted 25 Nov 2003) ❏