Force-Feeding Asylum Seekers

Pyarelal N. , Mahatma Gandhi: The Last Phase 741, 1958 (quoting correspondence from Gandhi to Maxwell Reginald Sir ).

Department of Immigration Multicultural and Indigenous Affairs (DIMIA) Media Release, 19 February 2002, DPS 5/2002.

Maynard R. , ‘Hunger-strikers “cuffed, force-fed”’, South China Morning Post, 30 November 2000.

Silove D. , ‘Ethical Considerations in the Management of Asylum Seekers on Hunger Strike’, (1996) 276 The Journal of the American Medical Association, 412; Peel M. , ‘Hunger Strikes’, (1997) 315 British Medical Journal 829; Reyes H. , ‘Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture’, Extract from the publication Maltreatment and Torture, in the series Research in Legal Medicine, Volume 19, Rechtsmedizinische Forschungsergebnisse — Band 19; Oehmichen M. (ed) Verlag Schmidt-Römhild, Lübeck, 1998; Annas G. , ‘Hunger Strikes’, (1995) 311 British Medical Journal 1114; Birchard K. , ‘Psychiatric Assessment of Hunger Strikers Must Be Prompt’, (1997) 350 The Lancet 648; Wier Johannes , Foundation for Health and Human Rights, Assistance in Hunger Strikes: A Manual for Physicians and Other Health Personnel in Dealing With Hunger Strikers, Amersfoort, the Netherlands, Johannes Wier Foundation for Health and Human Rights; 1995. II; World Medical Association ‘Declaration on Hunger Strikes,’ Adopted by the 43rd World Medical Assembly, Malta, November 1991, and editorially revised at the 44th World Medical Assembly, Marbella, Spain, September 1992 <http://www.wma.net/e/policy/17-fff_e.html>.

Amnesty International media release, ‘Turkey: Amnesty International Appeals for Urgent Steps to Resolve Hunger Strike Before Prisoners Die,’ AI INDEX: EUR 44/108/96, 12 July 1996.

See Human Rights and Equal Opportunity Commission, Those who've Come Across the Seas: The Report of the Commission's Inquiry Into the Detention of Unauthorised Arrivals, Commonwealth of Australia, 1998 (hereafter HREOC report), p.101.

Interviews with the Hon Phillip Ruddock, on The 7.30 Report, 24 January 2002, on Lateline, 29 January 2002.

Silove D. Steel Z. and Watters C. , ‘Policies of Deterrence and the Mental Health of Asylum Seekers’, (2000) 284 Journal of the American Medical Association 604–611.

HREOC report, above, ref 6.

Brockman Bea , ‘Food Refusal in Prisoners: A Communication or a Method of Self-killing? The Role of the Psychiatrist and Resulting Ethical Challenges’, (1999) 25 Journal of Medical Ethics 1.

See Section 1, Chapter 2 in Beers M.H. and Berkow R. (eds), The Merck Manual of Diagnosis and Therapy, 7th edn, available online at <http://www.merck.com>.

Bennett S. , ‘The Privacy and Procedural Due Process Rights of Hunger Striking Prisoners’, (1983) 58 NYUL Rev 1157 at 1177–1178.

Silove D. , above, ref 4.

These obligations are detailed further under the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

(1995) Aust Torts Reports 81–367, 62,795.

Commonwealth Parliament Joint Standing Committee on Migration, Report on Inspections of Immigration Detention Centres throughout Australia, August 1998, p.5.

See B v Croydon Health Authority [1995] 1 All ER 683, at 686.

See Sneed D. and Stonecipher H. , ‘Prisoner Fasting as Symbolic Speech: The Ultimate Speech–Action Test’, (1989) 32 How LJ; Bennett S. , above, ref 12; Greenberg J. , ‘Hunger Striking Prisoners: The Constitutionality of Force-Feeding’, (1983) 51 Fordham L. Rev 747.

See Zellick G. , ‘Forcible Feeding: Legality of Enforced Therapy’, (1976) Public Law 154, at 154.

Zellick G. , above, at 155.

Referred to with approval in R (On the Application of Wilkinson) v The Responsible Medical Officer Broadmoor Hospital [2001] EWCA Civ 1545 (22nd October, 2001) cf R v Collins and Ashworth Hospital Authority ex parte Brady [2000] LLRM 355, where the court ordered that the force-feeding of a prisoner was permissible as ‘treatment’ under the Mental Health Act 1983 for Brady's mental disorder. But even if the Act had not applied, the court was satisfied that Brady was incompetent, and therefore doctors could lawfully feed him in his best interests.

Section 3 of the Human Rights Act 1998 (UK).

Article 8 Right to Privacy, Article 19 Freedom of Expression.

See cases referred to in Ms B v An NHS Hospital Trust [2002] EWHC 429 (Fam).

Decision delivered on 24 April 2002 by Dame Elizabeth Butler-Sloss P in the Family Division of the High Court. See also Dodd V. , ‘Self-mutilating Prisoner Wins Right to Die’ Guardian, 25 April 2002.

See articles, above, ref 18.

See State ex rel. White v Narick, 292 SE 2d 54 (W. Va 1982), Vo n Holden v Chapman, 87 A.D. 2d 66, 450 N.Y.S. 2d 623 (1982); In re Sanchez, 577 F. Supp.7 (S.D.N.Y. 1983), In re Caulk, 125 N.H. 226, 480 A.2d 93 (1984).

See Stewart C. , ‘Advanced Directives, the Right to Die and the Common Law: Recent Problems with Blood Transfusions’, [1999] MULR 6 at 10.

Unreported Supreme Court of NSW, Administrative Law division, Lee J. No 4082 of 1983, 8 April 1983 (BC 8300004).

A discussion of their treatment and of the particular ethical dilemmas that arose in their cases is discussed in Silove D. , above ref 4.

As reported in Department of Immigration, Local Government and Ethnic Affairs v Gek Bouy Mok Supreme Court of New South Wales Equity Division, Powell J, 4982 of 1992, 30 September 1992, unreported.

Regulation 5.35(6).

Millett M. , ‘Hunger Strikers can Be Fed by Force’, Sydney Morning Herald, 13 October 1992.

Maynard R. , above, ref 3.

Silove D. , above, ref 4.

Note that in the United States prisoners on hunger strike have argued that a hunger strike should be regarded as ‘symbolic speech’ and protected by the first amendment to the Constitution, see Sneed and Stonecipher , above, ref 18.

Regulation 5.35(6).

HREOC Report, above, ref 5, recommendation number 6.8 p.124, note also that the report documents problems with the handling of detainees on hunger strikes by detention centre staff and makes further recommendations about the supervision and treatment of hunger strikers that draws on appropriate medical and psychological expertise.