Federal court of australia

20.The Medical Setting

305 I turn next to consider the medical risk, if any, posed by the Minister having procured an abortion for the applicant in Papua New Guinea and any risk arising from any apprehended failure of the Minister to procure a safe abortion for the applicant.

306 The applicant’s evidence was directed to establishing that particular medical services and expertise was required in order that any termination of her pregnancy would meet appropriate clinical standards for safety. The evidence essentially went to five subcategories:

(1) the requirement for neurological expertise and diagnostic equipment, the risk were it to be unavailable, and its availability or otherwise in Papua New Guinea;

(2) the applicant’s requirement for mental health care both pre- and post-termination, including by persons with experience in trans-cultural issues and the other issues experienced by the applicant, the risk were it to be unavailable, and its availability or otherwise in Papua New Guinea;

(3) the applicant’s requirement for gynaecological expertise and a surgical team with experience in conducting termination surgery on a woman with XXX, the risk should it be unavailable, and its availability or otherwise in Papua New Guinea;

(4) the applicant’s anaesthetic requirements, the risks should those requirements not be met, and the ability or otherwise for those requirements to be met in Papua New Guinea; and

(5) the need for an interdisciplinary approach involving consultation between all of the various professionals required.

307 As well as being relevant to the declaration sought by the applicant that the proposed abortion in Papua New Guinea did not discharge the Minister’s duty of care, that evidence is also relevant to an apprehended breach. It identifies risks, if any, to the applicant if the Minister procured an abortion outside of Papua New Guinea but in the same or similar medical setting to that available at PIH. There is other evidence also relevant for the question of an apprehended breach. It is necessary to set out the consequences for the applicant should no safe abortion be procured by the Minister and she continued to carry her pregnancy to full-term. The risk of harm in that circumstance is to some extent admitted. It is admitted that the applicant will suffer further mental harm if she is unable to obtain an abortion, and that if the applicant obtains an abortion it may lessen or alleviate some risk of harm to her. There is evidence to which I will shortly refer that elaborates on the nature of that risk.

308 The applicant advanced the evidence of five expert witnesses. Associate Professor Ernest Somerville is a consultant neurologist, specialising in epilepsy. His evidence went to the probable diagnosis for the applicant’s seizures, required treatment, risks to the applicant’s health posed in performance of a surgical termination, neurological services required in order that any abortion be safe, risks that would arise should an abortion be performed absent those services, and whether they were available in Papua New Guinea. His report was dated 19 April 2016. Associate Professor Somerville also provided a supplementary report dated 27 April 2016.

309 Dr Miriam O’Connor is specialist obstetrician and gynaecologist. Her evidence went to the kind of termination most appropriate in the applicant’s circumstances, where any termination should occur, and the circumstances of the pregnancy and the effect of any termination. Her report was dated 20 April 2016. Dr O’Connor also provided a supplementary report dated 27 April 2016. Dr O’Connor undertook a medical assessment of the applicant in Port Moresby on 19 April 2016.

310 Professor Caroline de Costa AM is a specialist obstetrician and gynaecologist. Her evidence went to matters including the kind of termination most appropriate in the applicant’s circumstances, where any termination should occur, and the circumstances of the pregnancy and the effect of any termination. Her report was dated 19 April 2016. Professor de Costa also provided a supplementary report dated 27 April 2016.

311 Professor Louise Newman is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. She has expertise in women’s mental health and trauma-related conditions. Her evidence went to the applicant’s psychological condition, mental health issues in connection with termination of pregnancy, and the availability of treatment in Papua New Guinea. Professor Newman’s report was dated 18 April 2016. Professor Newman had a telephone consultation with the applicant.

312 Dr Gregory Purcell is a specialist anaesthetist. His evidence went to the anaesthetic requirements for a termination, risks of termination, facilities and services required for a safe termination, and the availability of those facilities and services in Papua New Guinea. Dr Purcell’s report was dated 20 April 2016.

313 The respondent relied upon the evidence of Dr Mathias Sapuri. Dr Sapuri is a Senior Specialist Consultant Obstetrician Gynaecologist, at PIH. He has held various positions on boards and medical societies in Papua New Guinea and has over thirty years’ experience in surgical terminations of pregnancy.

314 I will address the evidence by reference to the five subcategories identified above.

21.Neurological expertise

315 It was admitted that the applicant suffers from epilepsy or a psychogenic disorder and has regular seizures. This raises neurological issues.

Associate Professor Somerville

316 In his report of 19 April 2016, Associate Professor Somerville opined that the applicant probably has epilepsy but that she requires at least a consultation with a neurologist to confirm the diagnosis. That may, in his view, be sufficient to make a diagnosis but confirmation with EEG would be routine.

317 If the neurologist thought it necessary to exclude psychogenic non-epileptic events, the applicant would be referred to a neurologist specialising in epilepsy who would see the patient in consultation and perform video-EEG monitoring as an inpatient. In Australia, that procedure would only be available in a teaching hospital with an epilepsy unit.

318 In the event that the diagnosis was epilepsy (with or without psychogenic non-epileptic events), Associate Professor Somerville stated that the applicant would continuously require anti-epileptic medication. She would require monitoring, preferably by a neurologist, and may require blood tests. Psychogenic non-epileptic events require consultation with a neuropsychiatrist or at least a psychiatrist familiar with the disorder.

319 While uncontrolled epilepsy poses risks to health, those risks are not significantly increased by the performance of a termination of pregnancy, provided the termination is performed at a hospital where emergency treatment of seizures can be satisfactorily performed, no doses of anti-epileptic medication are omitted, and seizure-provoking drugs are not used. However, a seizure may complicate a termination if it occurred during the termination.

320 Epilepsy does, in Associate Professor Somerville’s opinion, pose a number of risks in pregnancy and additional risks if uncontrolled. Uncontrolled epilepsy in a pregnant woman has the same risks as uncontrolled epilepsy at large, namely, injuries from falls and burns, drowning, choking on vomit, status epilepticus, and sudden death. It causes significant psychosocial impact. In Associate Professor Somerville’s opinion, a neurologist should be available to supervise the treatment of any seizures that might occur. He noted that access to an intensive care unit with facilities to ventilate a patient should be available to treat status epilepticus, should it occur. The risks of inadequately-treated status epilepticus include brain damage, pneumonia, and death.

321 Associate Professor Somerville was not aware of the availability of neurologists in Papua New Guinea. He was sure there were no neurologists specialising in epilepsy. He doubted that there was a neuropsychiatrist in Papua New Guinea.

322 In reply to Dr Sapuri’s evidence, outlined below at [328], Associate Professor Somerville opined that, in Australia, assessment by an internal medicine specialist would not be considered adequate. Rather, the applicant would at least be assessed by a neurologist and probably referred to a neurologist specialising in epilepsy. He continued:

She would then be admitted to an epilepsy unit for video-EEG monitoring to capture an episode. The reasons are firstly, to confirm the diagnosis (of epilepsy and/or psychogenic non-epileptic events) and secondly, if epilepsy were confirmed, to optimise therapy.

His opinions, as conveyed in his 19 April report, were unchanged by Dr Sapuri’s evidence.

Dr Purcell

323 Dr Purcell opined that due to the refractory, drug-resistant nature of the applicant’s epilepsy, it would be preferable to have it investigated and expertly managed before termination. If pregnancy aggravated the refractory epilepsy, the applicant might need MRI imaging to ensure that she does not have intracranial pathology or increased intracranial pressure. In order to tolerate the MRI, and avoid fitting in the machine, the applicant might require expert anaesthesia in a “complex isolated difficult environment.” Dr Purcell doubted that Papua New Guinea had the specialised equipment for anaesthesia in an MRI suite.

324 Dr Purcell opined that the applicant should, for proper pre-operative assessment, see an experienced neurologist, have possible MRI assessment, and have proper neurosurgical management. Risks that might arise following anaesthesia and procedure could include unmanageable fitting (status epilepticus), due to physiological and pharmacological perturbations during the procedures. Other complications might include bleeding, uterine rupture, peritonitis, sepsis, and perineal injury. In Dr Purcell’s opinion, experienced surgeons and intensivists would need to be readily available.

Dr O’Connor

325 Dr O’Connor’s opinion was that a surgical abortion was required. That was not in contest. Dr O’Connor was asked how risks associated with termination of pregnancy should be managed and what precautions ought to be taken. Preliminarily Dr O’Connor identified that a gynaecologist would ordinarily consult with other specialists including a neurologist. Also relevantly to neurological issues, Dr O’Connor said as follows (emphasis added):

The safety of anaesthesia and post-op care may be significantly influenced by her seizures which create an increased airway risk during anaesthesia and the perioperative period. We would require adequate assessment by an experienced neurologist (and possibly psychiatrist) in relation to diagnosis, immediate management around the time of termination, post-procedure and long-term care and treatment. This neurologist would then discuss with the anaesthetist and gynaecologist regarding the best approach to take in relation to methods of anaesthesia, agents to be used or avoided, a post-operative pain management and medication plan, as well as the longer term management of her seizures.

326 Dr O’Connor stated that there were no consultant neurologists in Papua New Guinea. She re-iterated that in her oral evidence, and said further that there was no EEG or ambulatory EEG service available in Papua New Guinea. She opined, noting that she was not a neurologist, that most neurologists would require an EEG and would probably recommend an ambulatory EEG. She said that many Papua New Guinean medical practitioners would not have much experience with adult epilepsy causing grand mal seizures because Papua New Guineans who are prone to such seizures often do not advance in their adult years.

327 Dr O’Connor’s opinion was unchanged by Dr Sapuri’s evidence (discussed at [328]).

Dr Sapuri

328 Dr Sapuri’s evidence was that anaesthetists at PIH were experienced in administering anaesthesia to patients with epilepsy. He also stated that Dr Paul Mondia, a senior internal medicine specialist at PIH, had treated epileptics. He gave evidence as to Dr Mondia’s ability to complete a physician assessment but, after objection, that was received only as evidence of Dr Sapuri’s opinion and not as to the facts.

Professor Newman

329 Professor Newman did not address neurological issues in her report of 19 April 2016. However, in reply to the report of Dr Sapuri, Professor Newman said that on review of email correspondence in the matter she saw it stated that there was “no capacity to examine [the applicant] in the offshore location for epilepsy using EEG.” That meant, she said, that it was not possible to exclude a diagnosis of epilepsy even in the event of some seizure activity being stress related. She remained of the opinion that investigation of the seizure disorder was “indicated” and that investigation of that disorder “[could] only occur in a suitable facility on the mainland.”

Professor de Costa

330 Professor de Costa’s opinion was that the applicant should have a surgical abortion rather than a medical abortion. That was uncontroversial. Professor de Costa said as follows in regard to risk-management for a surgical abortion:

[T]he treating doctors should be concerned about [the applicant’s] history of apparent grand mal seizures and should not proceed with a surgical abortion until there is a much clearer history of these than I have so far been provided with. I have been informed that a diagnosis of epilepsy was made when [the applicant] was aged 16 but I do not know who made this diagnosis; nor the facts the diagnosis was based on, whether any investigations were undertaken, or whether any treatment has been proposed for her; nor whether if medication has been provided this has been accepted and taken regularly. It would be essential before embarking on the abortion process to have as much information as possible as a surgical procedure would be complicated if [the applicant] were to have a grand mal seizure during the process, and there may be a risk of status epilepticus. I do not believe that any Australian specialist anaesthetist would be prepared to give an anaesthetic without being well-informed on these points.

331 Professor de Costa continued that “[the applicant] should be seen by a specialist neurologist with a view to more specific diagnosis and control of the epilepsy, with the reassurance from that practitioner about the safety of proceeding with the abortion.” The opinion of a neurologist was, in Professor de Costa’s view, essential.

332 Professor de Costa stated that she was reliably informed that there was no specialist neurologist in Papua New Guinea and that many of the diagnostic aids to neurological diagnoses were not available. “Therefore if [the applicant] were to undergo surgical abortion in PNG and have medical assessment prior to the surgery and anaesthesia, this would not be at the standard required in an Australian teaching hospital.”

333 In her reply report, Professor de Costa noted the opinion of Dr Rudolph that the applicant should be seen by a neurologist and have an EEG and possibly other neurological investigations performed. She agreed. Professor de Costa said further that in an Australian setting an anaesthetist would want a review, investigations, and diagnosis by a neurologist before agreeing to give general, inhalational, or total intravenous anaesthesia electively. Therefore, she said, a surgical termination at PIH prior to neurological assessment would not provide the same level of safety for the plaintiff as if it were performed in Australia.

Other evidence

334 I have noted elsewhere (see [89], [94], [139]) that email correspondence passing between IHMS and employees of the Australian Border Force goes to the availability of neurological expertise and equipment in Papua New Guinea. In particular, Dr Rudolph’s 9 March 2016 email to Dr Brayley said that there were no EEG services at PIH. In his 17 March 2016 email Dr Rudolph said that if the applicant were in Australia she would have an EEG and would probably be admitted to a neurology ward for observation if the EEG was inconclusive.

335 Dr Rudolph said in the same email that there was no EEG or neurology capability at PIH, and that he suspected that IHMS would be requesting transfer to Australia for an EEG and admission to a neurology ward.

336 In her 13 April 2016 email to Mr Willis of the Australian Border Force, Ms Wishart of IHMS said that specialist neurology services are not currently available at PIH, and that EEGs are not able to be performed at PIH.

22.Mental health care

337 Again, it was not in dispute that the applicant suffered mental harm and continues to suffer mental harm as a result of being raped. It was also admitted that she will suffer further mental harm so long as she continues to be pregnant.

338 Professor Newman opined that the applicant’s presentation was “consistent … with a diagnosis of acute stress response given the severe nature of the trauma that she has experienced.” She said that it is “likely to become an emergent chronic post-traumatic stress situation.” Professor Newman said that emotional responses to the applicant’s pregnancy are likely to be complex and that it is important that the applicant be offered supporting counselling.

339 Professor Newman’s opinion was that “[the applicant] should have experienced and expert psychiatric opinion regarding her current mental state, capacity to understand the procedure and the ability to tolerate the proposed procedure before a plan for intervention is finalised.”

340 Specifically in relation to the applicant’s XXX, Professor Newman said that women who had experienced such XXXXX XXXXXX XXXXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXX XXXXXXX. Thus, general anaesthesia or psychotropic medication may be necessary or appropriate. In Professor Newman’s opinion, it is standard practice in a tertiary women’s hospital to have culturally-sensitive and informed workers familiar with these procedures in the cultural context to engage with and counsel the woman. A patient may, in a tertiary women’s hospital, also be provided “high-level expert psychiatric opinion” and support during assessment for the procedure and recovery. She described the availability of those facilities and expertise as “important” for women with risk factors like the applicant’s.

341 Professor Newman’s opinion as to the nature of service that was appropriate in the applicant’s case was as follows:

In summary, [the applicant] has many risk factors for negative responses and reactions to the proposed procedure and is at risk of both short term and ongoing complications. Given these risk factors, it would be appropriate to arrange appropriate level treatment for her with relevant specialist expertise including psychiatric expertise in women’s mental health including termination of pregnancy and sexual trauma, sexual health specialists, and the capacity to provide ongoing mental health treatment if required. A tertiary level women’s hospital with these services on site and the ability for hospitalisation on mental health grounds would be, in my opinion, the most appropriate and in the interests of [the applicant’s] psychological welfare.

342 Risks of failing to provide such a co-ordinated system of care included negative psychological response extending to ideas of self-harm and even suicide. Professor Newman said that it was possible that women in such circumstances could develop extreme psychiatric symptoms including dissociation, panic and high-level anxiety, and in extreme cases psychotic symptoms, requiring admission to a psychiatric facility.

343 Professor Newman gave evidence that, to her knowledge, “there are limited mental health clinicians available in Papua New Guinea.” She was unaware of tertiary-level specialist treatments in the area of sexual assault and trauma-related symptoms. That made it “extremely difficult to have any confidence in the capacity of local health providers to avoid or minimise the risks of mental deterioration discussed above.” That evidence was objected to on 28 April. On 28 April, when Professor Newman gave oral evidence, she attested as to her basis for the statement. I think a basis has been established and I would admit the evidence. Tertiary women’s hospitals in Australia have high-level mental health services including sexual assault services and ongoing care for victims of trauma. In particular:

This level of service also includes the availability of interpreters and cross-cultural workers. The Royal Women’s Hospital in Melbourne offers specialist counselling and care for women who are victims of XXXXXXXX XXXXXX which would be necessary in the management of [the applicant].

344 In reply to Dr Sapuri’s affidavit, Professor Newman said that she remained of the opinion that “comprehensive care of a woman in this situation also requires experienced mental health assessment and treatment facilities,” more so in the case of a patient with pre-existing mental health issues. To Professor Newman’s knowledge, the required level of mental health support and staff was not available in Papua New Guinea, which would put the applicant at increased risk were she to have a termination of pregnancy at PIH. (Again, that evidence was objected to, but a basis was established in oral evidence and I would admit it).

345 Professor de Costa also opined that the applicant required psychiatric/psychological care. In reply to Dr Sapuri’s affidavit, Professor de Costa said that “[the applicant] requires mental health assessment and care, and rape crisis counselling, over and above what is being provided to her on Nauru and in PNG.”

346 Dr O’Connor also considered that the applicant required psychological care, and said further that “a transcultural psychiatric team would be considered fundamental in most Pregnancy Advisory Services in Australia given [the applicant’s] particular circumstances.” Dr O’Connor said that “Pregnancy termination, even after rape, requires the woman to have psycho-sexual and cultural (and sometimes religious) support in order to minimise the sequelae. This woman already has major issues in relation to GBV [gender-based violence] and pregnancy. She would provide a challenge for any service, so experienced transcultural workers are required.” Further, up to 20 per cent of women suffer serious, prolonged mental health problems following abortion.

347 Dr O’Connor said that on Papua New Guinea, “there are very few psychiatrists and almost none with transcultural experience,” which was a “significant gap” in relation to the applicant’s needs. Further, there was no “”Pregnancy Advisory Service trained support workers e.g. psychologists, social workers,” which was also a “significant gap” in relation to the applicant’s needs. In Dr O’Connor’s opinion, there were “inadequate services in PNG to cover the complexity and minimise the risks involved given [the applicant’s] physical and mental health needs.” Dr O’Connor’s opinion was not altered upon reading Dr Sapuri’s affidavit.

348 Dr O’Connor also gave oral evidence. She said that “there are few [psychiatrists in PNG], and most of them will not be involved in any way in relation to assessing patients prior to termination of pregnancy.” Beyond that, “[the applicant] has trans-cultural issues that would normally be assessed by a pregnancy advisory team, skilled and staffed to address … her mental health issues, but also in relation to the circumcision procedure, and those things are not available in PNG.”

349 Dr Sapuri’s affidavit contained little on the subject: he said that “[t]ransferees and refugees from Manus Island and Nauru are regularly treated at PIH and staff at the hospital are familiar with the use of interpreters and cross-cultural treatment.” He also indicated that “where the risk to a [woman’s] life which necessitates a termination has a psychiatric element, we also obtain a report from a psychiatrist about the patient’s mental state.” In this case, Dr Priscilla Nad had prepared a report dated 9 April 2016 which was annexed to Dr Sapuri’s report.

350 Again, emails between IHMS and the Australian Border Force largely corroborated the evidence of the applicant’s witnesses concerning facilities and services available in Papua New Guinea. Ms Wishart said in a 13 April 2016 email to Mr Willis that “PIH does not currently offer psychological counselling services,” but that “[m]ental health support will be provided by IHMS clinicians in [Port Moresby]”.

23.Gynaecological expertise

351 Professor de Costa and Dr O’Connor were the applicant’s primary witnesses on this issue. The focus of their evidence, in the end, was not upon the gynaecological expertise necessary to carry out a standard surgical abortion, but instead upon necessity that the surgical team specifically have expertise in cases of women with XXX.

352 Professor de Costa, for example, accepted in her supplementary report that “purely from the point of view of Dr Sapuri’s qualifications and the surgical equipment available at PIH, Dr Sapuri is qualified to perform the procedure of surgical TOP for [the applicant].” However, in her original report she said this:

[The applicant] has undergone a form of XXXXXX XXXXX XXXXXXX when she was a child; … . I do not know the extent of the XXX procedure originally performed for her nor whether any vaginal or vulval damage was suffered by her as a consequence of the rape. In Australia now women with XXX are referred to specialist centres in larger city hospitals for management of the condition during and following pregnancy and childbirth. I would recommend that [the applicant] have access to the care provided by such a centre

353 Professor de Costa said that if the termination was not conducted in a safe manner, there was risk of haemorrhage, infection, damage to the uterus or adjacent organs such as bladder, subsequent infertility, and a risk of death. In the case of abortion carried out in an Australian hospital after adequate consultation with a neurologist, anaesthetist, and mental health experts, she said, the risk of all complications is negligible and the risk of death less than one in 100,000.

354 Dr Sapuri said as follows in relation to termination of pregnancy procedures at PIH:

10. All 4 operating theatres at PIH are fully equipped for a safe surgical abortion, including with suction cutterage equipment and both myself and the other OBGYN at the hospital, Dr Onne Rageau, are experienced in performing the procedure.

11. I perform around 2 surgical terminations of pregnancy each month at PIH, including in cases where the pregnancy is the result of rape.

12. I have also read and am familiar with the clinical practice guidelines for terminations of pregnancy in PNG which have been published by the PNG Department of Health.

13. PIH can perform a surgical termination of pregnancy up to 20 weeks' of pregnancy.

14. There are also 3 full-time anaesthetists at PIH who provide anaesthetist assessments and anaesthetists services for surgeries, including surgical terminations of pregnancy. Monitored total intravenous anaesthesia and new volatile inhalation anaesthetic desflurane are both available at PIH.

…

19. I have also come to know that the Applicant has XXXXX XXXXXXX XXXXX. In my experience XXX does not complicate a surgical abortion. I have performed surgical abortions on women with XXX in the past including when I worked at the Royal Women's Hospital in Melbourne and recently at PIH on a patient with extensive XXX who was transferred from the regional processing detention centre in Nauru.

355 Dr Sapuri’s conclusion on this issue was at paragraph [20], as follows:

I would not perform a surgical abortion on the Applicant if I did not consider it was safe to do so. Based on the information currently available to me, and subject to ongoing assessment of the Applicant's condition, I believe it is safe to perform a surgical abortion on the Applicant at PIH. Of course, no surgical procedure is entirely safe in the sense that there is no risk of harm to the patient. In saying that, in my view, it would be safe for the Applicant to undergo a surgical abortion, I am expressing the view that the procedures can be considered safe because the risks associated with the procedure are within acceptable clinical tolerances.

356 All but the first sentence was received into evidence only on the limited basis that it is the belief of the witness together with an opinion, but confined to an opinion by a gynaecologist about the safety of a procedure identified from a gynaecological point of view.

357 Dr Sapuri also gave evidence as to this issue in cross-examination. He said around five or six weeks prior he had performed a surgical abortion on a woman with XXX. He said that XXXXXXXXXX was not required in that case. It was put to him that, in that case, it was unlikely that the woman had XXXXXXX. He could not recall and did not have his clinical notes available to him while giving his evidence.

358 Dr O’Connor’s report in reply to Dr Sapuri’s addressed the issue of expertise in dealing with XXX. As I have stated earlier, Dr O’Connor’s examination of the applicant revealed a XXXXXXX. She said, “I do not believe the issues around XXX in [the applicant’s] circumstance can be appropriately, reliably and perhaps safely managed in PNG.” She doubted that Dr Sapuri’s experience in Papua New Guinea would have given him much exposure in relation to women with XXX. Dr O’Connor said as follows specifically in relation to standard practice in relation to XXX:

It would be standard practice to offer such a woman appropriate counselling and encouragement to have a XXXXX procedure carried out at the same time as the TOP, with a plan NOT to XXXXXX, if she would agree. A decision regarding the latter is often quite a challenge for a woman without the appropriate, knowledgeable counselling from a practitioner with relevant cross-cultural and practical experience as well as support from community members experienced in counselling peers who have also had XXXXXXX procedures (such as is available in major teaching hospitals in many Australian centres).

359 Dr O’Connor identified the risks associated with unsafe termination as including haemorrhage, infection, uterine perforation, damage to another organ, and any treatment to correct these including hysterectomy and blood transfusion, and exacerbation of any mental health issues.

24.Anaesthesia

360 As I outlined above, Dr Purcell opined that, if pregnancy aggravated refractory epilepsy, anaesthesia in an MRI may be required. He doubted that the specialised equipment for anaesthesia in an MRI suite was available in Papua New Guinea. Dr Sapuri’s evidence concerning anaesthesia equipment at PIH is set out above. He did not say anything concerning whether anaesthesia in an MRI suite was possible at PIH.

361 Touching in part on this subject, Dr O’Connor said as follows:

The safety of anaesthesia and post-op care may be significantly influenced by her seizures which create an increased airway risk during anaesthesia and the perioperative period. We would require adequate assessment by an experienced neurologist (and possibly psychiatrist) in relation to diagnosis, immediate management around the time of termination, post-procedure and long-term care and treatment. This neurologist would then discuss with the anaesthetist and gynaecologist regarding the best approach to take in relation to methods of anaesthesia, agents to be used or avoided, a post-operative pain management and medication plan, as well as the longer term management of her seizures.

362 Dr Purcell indicated that complications that may arise included the following:

[S]evere unmanageable fitting (status epilepticus), due to physiological and pharmacological perturbations during the procedures. Other complications include bleeding, uterine rupture, peritonitis, sepsis, perineal injury and all require expert and individual assessment and management.

363 Dr Purcell thought that risks would be reduced in Australia: “A different professional culture and experience in terminations of high risk medical patients is available throughout Australia. Experience with newer, safer anaesthetic drugs and anaesthetic techniques, familiarity with anaesthesia in a MRI facility (highly magnetised), and experienced intensivists and neurosurgeons are all available in Australia and of satisfactory standard.”

25.An Interdisciplinary Approach

364 There was an emphasis in much of the applicant’s expert evidence on an interdisciplinary approach, involving consultation as between various professionals, and the risks associated with another approach. That was typified by the oral evidence of Professor Newman.

365 Professor Newman said that the applicant had “quite a complex medical and psychiatric presentation.” She referred to the applicant’s “pre-existing seizure disorder” and that “we’re still unsure of what the nature of that actually is.” The applicant is in the position now of reporting sexual assault and unwanted pregnancy and has described, on Professor Newman’s assessment, features relating to the stress of that such that Professor Newman’s view is that “she constitutes quite a high risk of having complicated or negative outcomes,” even with the requested termination.

366 Professor Newman’s assessment was based on the standard that would be applied on the mainland for women of similar complexity: i.e., pre-existing psychiatric or neurological problems, acute stress such as sexual assault, and being in a high-risk setting in terms of her understanding of her circumstances and fear of being unsupported, and being in a location with limited access to services. Professor Newman continued thus:

… [L]ooking at those factors in a holistic way, I come – my conclusion and my recommendation would be that she actually requires quite a – a comprehensive and coordinated treatment approach, and that a very important part of this treatment approach is, I mean, obviously, the importance of good medical or surgical care, but she also needs culturally appropriate and informed mental health specialist treatment, and the sort of treatment that I would be meaning there would be a mental health service with high-level expertise in women’s mental health, with experts used to working with sexual assault and some of the issues that arise after that, and also where that care can be better coordinated with relationships with the surgeons and obstetricians involved in her care.

367 Professor Newman was asked what she meant by “culturally-informed services,” and she replied that the applicant required clinical services with available expertise working with different cultural groups with religious and other sensitives, and gender-related issues particular concerning sexual assault and termination. Ideally, Professor Newman said, there would be bilingual workers of the same cultural group which, to her knowledge, was available only in tertiary-level women’s hospitals on the mainland.

26.The harm if no abortion was procured

368 As I have stated, it was admitted that the applicant’s continued pregnancy would cause her to suffer further mental harm. It was also admitted that the performance of an abortion may lesson or alleviate some risk of harm to the applicant. Those matters are relevant.

369 Professor Newman’s opinion was that if the termination was not undertaken in a timely fashion the applicant was likely to experience ongoing mental distress with associated agitation, anxiety and the potential risk of self-harming behaviours and emergent suicidal ideation. Professor Newman said that delay in decision-making and the undertaking of a termination procedure would be significant. There are cultural and religious issues which are important to the applicant in that, within her belief, termination must occur prior to 16 weeks to be socially and culturally acceptable. Psychologically, the applicant is likely to deteriorate in her mental state if there is not a timely resolution. Further, Professor Newman said that, because of her current living situation and issues related to her epilepsy, the applicant is in a state of agitation and vulnerability such that is very unlikely that her symptoms of anxiety will resolve.

370 Professor de Costa’s opinion was that carrying the pregnancy to term placed the applicant at risk of further seizures leading to hypoxia, and increasing mental distress of an unwanted pregnancy resulting from rape. There were also risks to the foetus including from hypoxia and the risk of birth defects caused by anti-epileptic medicine.

371 Associate Professor Somerville also noted that anti-epileptic medicine may result in birth defects and reduced intellect in children. He further noted that seizures may be harmful to a foetus and result in miscarriage or premature labour. Sleep deprivation in late pregnancy, during labour, and when breastfeeding, may provoke seizures. The risks of seizures, as mentioned elsewhere, include injuries from falls and burns, drowning, choking on vomit, status epilepticus (with the potential to cause brain damage, a number of secondary medical problems including pneumonia, or death), and psychosocial impact.

372 Dr O’Connor stated that, in her experience, continuing with unwanted pregnancy, particularly in the case of rape, leads to poor outcomes for woman and child. The applicant’s feelings of a lack of control over her life, and her social and cultural isolation in her community, are likely to increase. Dr O’Connor opined that continuing pregnancy would likely exacerbate her already-challenged mental health issues, and in particular that a failure to terminate prior to 16 weeks would cause significant cultural and religious issues and risk her not being able to access a termination at all. She identified that there were risks associated with correct management of her XXX at the time of delivery.

373 There is other evidence going to risk of harm to the applicant should a termination not be performed. In the First RMM, dated 1 April 2016 and authorised by Dr Rudolph, it was said that “[s]hould there be delays in performing the termination of pregnancy at an early stage, there are increased risks of mental health issues as well as intraoperative and post-operative complications such as bleeding and infection. [The applicant] is also at risk of significant mental health issues prenatally and postnatal which includes potential risks of post-natal depression and disengagement from the baby, should the termination not proceed.” That RMM provided through Australian Border Force channels was ultimately authorised by Mr Nockels. In the email of 5 April 2016 from Ms Crivici of the Australian Border Force to Dr Sapuri, Ms Crivici relayed to Dr Sapuri the IHMS clinical advice.

374 Dr Sapuri asked for a self-harm report in his reply of 5 April 2016, which he said was “necessary to comply with [the] Laws in PNG.” That self-harm report was provided. It is worth noting that the report detailed an attempt by the applicant to drown herself and this statement by her: “be aware, I’m going to kill myself tonight.”

375 On that basis, Dr Sapuri agreed to accept the case. He stated that a Dr Ragaeu had reviewed the applicant and had agreed that termination was necessary to preserve her life. He said, at [15], that at PIH “we require 2 obstetricians to agree that a termination is necessary to preserve a woman’s life before we perform the procedure.” He also said that where the risk has a psychiatric element a psychiatrist’s report is procured. That was done in this case in the form of the report from Dr Nad.

376 Another contextual element is that the Minister’s case concerning legality of the procedure in Papua New Guinea seems to me to have been predicated precisely upon an abortion being necessary to preserve the applicant’s life.

377 The Minister’s case and oral submissions proceeded on the basis that the s 280 defence would apply to the applicant’s case. That involves an acceptance that unless an abortion is performed the applicant’s life is endangered.

27.Discussion

378 The overwhelming majority of the applicant’s expert evidence was unchallenged. Associate Professor Somerville, Dr Purcell, and Professor de Costa were not called or cross-examined. Professor Newman and Dr O’Connor were called but not cross-examined. Dr Sapuri was a gynaecologist and did not purport to give evidence on matters neurological (so as to contradict Associate Professor Somerville), anaesthetic (so as to contradict Dr Purcell), or psychiatric (so as to contradict Professor Newman).

379 Dr Sapuri’s evidence was not entirely on all fours with that of his gynaecologist colleagues—Professor de Costa and Dr O’Connor—but equally it was not markedly contradictory. That is, the main criticism advanced by the applicant as to the services available at PIH was that it did not have adequate experience dealing with XXX. Dr Sapuri’s evidence disclosed that he had some such experience, but not much, and possibly none at all dealing with XXXXXX.

380 I accept the evidence of the experts called by the applicant. The evidence establishes that if the applicant had the abortion at PIH which the Minister has procured for her, she would be exposed to the risk of suffering the kinds of physical and psychological injuries that the medical experts have identified as risks which could be alleviated if, broadly speaking, the following resources had also been procured:

(i) the neurological expertise and neurological facilities referred to in the expert medical report of Associate Professor Ernest Somerville dated 19 April 2016, together with his expert medical report dated 27 April 2016; and

(ii) the psychiatric expertise, and other resources including cross-cultural expertise, referred to in the expert medical report of Professor Louise Newman dated 18 April 2016, together with her email dated 27 April 2016; and

(iii) the anaesthetic expertise and anaesthetic facilities referred to the expert medical report of Dr Gregory Purcell dated 20 April 2016; and

(iv) the gynaecological expertise and experience, and the gynaecological facilities, referred to in the expert medical report of Professor Caroline de Costa dated 19 April 2016, together with her expert medical report dated 27 April 2016, and the expertise, experience and facilities referred to in the expert medical report of Dr Miriam O’Connor dated 20 April 2016, together with her expert medical report dated 27 April 2016

381 I find that the evidence establishes that these resources are not available at PIH and have not been procured by the Minister.

382 I accept that, in the absence of those resources, there is a heightened risk of very serious physical and/or psychological harm to the applicant of the kind specified by the medical evidence called by her. There can be no doubt that a reasonable person in the Minister’s position at the time an abortion was procured by the Minister would have foreseen that the applicant would be exposed to a risk of harm additional to the extent of risk that she would have been exposed to in a better-resourced medical setting such as Australia. Those additional risks are real and are not far-fetched. I also find that the same risk is foreseeable should the Minister procure an abortion for the applicant in a medical setting analogous to that available in Papua New Guinea. What is more, in light of the applicant’s medical evidence it is clear that any reasonable person in the Minister’s position could not now fail to appreciate the risks.

383 Turning then to the possibility of risk to the applicant should the Minister not procure a safe abortion and the applicant carries her pregnancy to full-term, it is clear that that risk is also foreseeable.

384 Having given an affirmative answer to the first question raised by the Shirt formula in relation to each category of medical risk, I turn to consider the magnitude and degree of probability of the medical risks to which the applicant has been or may be exposed too. I deal first with the exposure to risk arising from an abortion at PIH together with the potential exposure to risk if an abortion was procured for the applicant in an equivalent medical setting to that provided in Papua New Guinea.

385 The magnitude of the neurological risks is high to extreme. One possibility envisaged by the medical evidence is status epilepticus leading to brain damage, pneumonia or death. The mental health risks are also high to extreme. One possibility envisaged by the evidence is that the applicant would take her own life. In relation to inadequate gynaecological experience with XXX, Professor de Costa identified a range of consequences in what I would characterise as the high to extreme range, including infertility and death. The anaesthetic risks identified by Dr Purcell included complications with obviously severe consequences. Overall, the evidence justifies the finding that the magnitude of the medical risks is high to extreme.

386 The degree of probability of those risks occurring is a more difficult question on which the expert evidence does not provide me much assistance. However, the evidence is clear that each of the applicant’s experts, whose evidence I have accepted, considers the risks to be sufficiently weighty that he or she would take measures to alleviate them. From that it may be safely inferred, that the probability of the occurrence of those risks is neither trivial nor insignificant. In other words, the risks are material.

387 As to the magnitude of the risks of harm to the applicant should she carry her pregnancy beyond 16 weeks and then to full term, I find those risks to be high to extreme in magnitude. They include the possibility of the applicant’s death. Whilst the degree of probability of the occurrence of a risk of an extreme magnitude such as that may be low, the degree of probability of the occurrence of psychological injury of a high magnitude is, on the evidence I have accepted, very significant.

388 The final question in the Shirt formula, is a consideration of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”. As Mason J went on to say it is only when these matters are “balanced out” that “the standard or response to be ascribed to the reasonable man placed in the defendant’s position” can be confidently asserted. As Gleeson CJ said in Fahy at [6], the factors identified by Mason J are “factors which are likely to enter into such a consideration” as factors which need to be “balanced out”. The exercise (in totality) “involve[s] a judgment about reasonableness, and reasonableness is not amenable to exact calculation”.

389 The Minister made no submission that the expense, difficulty or inconvenience of taking alleviating action provided a basis for not having taken or not now taking alleviating action. Nor was any evidence lead which would have supported such a submission, beyond one very minor matter which I will shortly address. Indeed, as I have said, the Minister conceded in his submissions on relief, that hardship imposed on the Minister by an injunction would not be a “significant factor”.

390 The evidence of Mr Nockels positively established the absence of difficulty. In cross examination, Mr Nockels was given several opportunities to identify “logistical” difficulties in procuring for the applicant an abortion in a country with medical settings like those of Australia. He did not raise inconvenience, but a fair reading of his evidence suggests that inconvenience arising from the need to identify an alternative country in which an abortion could be procured for the applicant in a medical setting comparable to that provided in Australia, may have existed. Beyond that factor, the prominence of which was not given particular significance by Mr Nockels, the evidence of Mr Nockels suggested that factors such as expense, logistics or inconvenience were not a problem faced by the Commonwealth, as the following evidence illustrates:

So what they were offering there – we know Australia has these standards, but there may be a third country – say, Singapore or New Zealand – that could be expected to have similar standards. You understand that? ---Yes.

And there would be no legal or safety problem in those two locations? ---Yes.

So you had the opportunity when you read this – you could have decided to agree to a transfer to Australia, as recommended. Yes?---Yes.

And that was just one flight from Port Moresby, which is done regularly by many, many people?---Yes.

So there’s no logistical difficulty involved in that?---No.

And you know that the suggestion is that, for this patient, it should be at an Australian teaching hospital. The Commonwealth has no problem in getting access to an Australian teaching hospital for medical services that this applicant would require? ---Not that I’m aware of.

No. But you also had the opportunity – if, for a policy reason, you didn’t want to send her to Australia, you could have solved this problem by arranging for an abortion in New Zealand or Singapore. That’s correct?---That’s correct, although I would have relied on the advice from IHMS on which country could have been the option.

…

And you had the resources of the Federal Government available to you, throughout the world, to find a hospital in this region that could give a safe and lawful abortion. Can you think of one logistical difficulty in you making an inquiry and finding that out?---I had asked IHMS to provide us, because they are our service provider on health issues, to suggest to us what other---

391 The tenor of Mr Nockels’s evidence was not directed to identifying any difficulty in alleviating the risks which I have identified the applicant faces. Before going directly to that evidence, it is necessary to recall that the applicant’s medical evidence largely identified the risks to the applicant by reference to Australian standards of medical care. The resources that were lacking at PIH, which raised the risks identified, were all resources that the expert evidence established were available and would be supplied in an Australian medical setting.

392 Mr Nockels had no difficulty with the proposition that the applicant should be provided with the standard of medical care available in Australia. His evidence was that, in the context of the applicant’s circumstances (which required assistance to be procured outside of Nauru), Australian standards are regarded as the “base line” and were the expected “starting point” to have been used by IHMS in recommending a suitable medical setting for the applicant’s abortion. This was the evidence of Mr Nockels on that issue:

Was it your opinion on 26 April that in assessing the medical needs of the applicant, Australian medical standards should be used as the baseline?---No. Not at that stage. No.

At 26 April?---Yes. In terms of – in my mind, in terms of when I was making that decision on the 26th.

Yes. Please – did you believe that Australian standards should be used as a baseline prior to the 26th?---Yes.

Okay. Could you tell me – let’s start with that. At what stage did you believe Australian standards should be used as a baseline by IHMS for assessing refugees and asylum seekers in Nauru and Papua New Guinea?---So – so IHMS should – should, obviously, use that baseline as a starting point, yes.

Starting point? Do we go up and improve on it, or do we finish below it? What do you mean, “as a starting point”?---That’s their – that’s the baseline.

You know a baseline in this context – just so we’re not at odds?---Yes.

---is the standard that they’re entitled to expect?---Yes.

Now, do you have any quarrel with refugees and asylum seekers in Nauru and Papua New Guinea being offered Australian standards in their healthcare, to the---?---No.

Thank you. Now, on 26 April, you hadn’t changed your opinion about that, had you?---About using Australian standards?

As the baseline for this---?---No.

---applicant’s treatment? ---No.

So if Australian standards could not be obtained at the PIH, then you would have no difficulty in saying she should be transferred to a place where Australian standards could be obtained for her abortion?---That would be one option. Yes.

Well, can you tell me any other option?---That we could get the standard to her where she is.

Sorry?---That we could take that standard to her, ie, if ---

No. I’m not talking about location now. Location we will come to. I promise I will give you plenty of opportunity to talk about location. I’m talking about the health standards to which she’s entitled, not the place where she’s to get it. So on 26 April, you were of the view she was entitled to have Australian standards ---?---Yes.

---in respect of her abortion; is that correct?---Yes.

393 The extent to which Mr Nockels did not regard expense, difficulty or inconvenience as inhibiting factors is revealed by his acceptance that the Commonwealth may be prepared to take the actions identified in the following question:

So is what you’re saying to me, is to maintain the policy in Australia of not sending anyone to Australia in Plaintiff S99/2016’s position because she’s not an exceptional case, you would fly over an EEG unit, an expert neurologist, if you can find one, a psychiatrist, an anaesthetist and someone who has had prior experience on XXX XXXXXXXXXXXXXX, as well as the necessary counselling required before and after the operation and before and after the XXX. You would fly that whole team over to PNG because this is not an exceptional case? Is that what you’re saying?---It could be an option. I’m not saying I would take that option.

394 The Minister’s position, as put through the evidence of Mr Nockels and also in submissions, was not that there are difficulties to be faced in alleviating the risks facing the applicant, but that there are no risks which need to be alleviated. That addresses a different issue to the issue currently under consideration. It is, in any event, a proposition which I have already rejected.

395 The point raised does, however, re-surface as I will explain. Mr Nockels gave evidence that his decisions to procure the applicant an abortion in Papua New Guinea and not elsewhere were based upon a Departmental policy which he initially described as “ensuring that IMAs [Irregular Maritime Arrivals] are treated in a third country outside of Australia for medical support”. Later in his evidence, Mr Nockels confirmed that the policy allowed for “exceptional circumstances”.

396 The Minister did not make a submission that the policy just described (Policy) justified not alleviating the risk faced by the applicant. Nor did Mr Nockels expressly do that through his evidence. But his evidence was that the Policy was the primary consideration in the decisions he made not to procure an abortion for the applicant other than in Papua New Guinea. In that respect he rejected that the applicant’s circumstances fell into the category of “exceptional circumstances”.

397 Despite it not being put by the Minister, I would accept that a governmental policy can be an alleviating factor to be taken into account in the application of the Shirt formula. The reference by Mason J to “any other conflicting responsibilities which the defendant may have” is wide enough to encompass governmental policy as a factor. But the extent to which governmental policy may justify the non-alleviation of a risk will depend upon at least two considerations. First, whether the policy relevantly stands in the way of alleviation and to what extent, and, second, like all alleviating factors, the weight to be given to it in the “balancing out” process.

398 I only need to consider the first consideration. The second only arises if the Policy materially stood in the way of the alleviation of the risks faced by the applicant, and I find that it does not. The Policy only stands in the way of the prospect of alleviation, if bringing the applicant to Australia was the only feasible option for alleviating the risk. Even if that were the fact, the Policy only has application if the applicant’s circumstances do not fall within the “exceptional circumstances” exclusion.

399 As to the first consideration, no case has been made that there is no feasible option other than Australia, for alleviating the risks faced by the applicant. As the extract at [390] shows, Mr Nockels accepted that it could be expected that Singapore or New Zealand would provide medical services equivalent to those in Australia. He saw no legal or safety problem in those two locations and if, for a policy reason, Australia was not an option, Mr Nockels accepted, subject to getting the advice of IHMS, that he could have “solved this problem by arranging an abortion in New Zealand or Singapore”. I note further, that in the Third RMM, IHMS suggested that the applicant could be referred for care to a “third country” which when read in context, meant a country other than Papua New Guinea or Australia.

400 Again, the import of the evidence of Mr Nockels was not directed at demonstrating a difficulty in finding an alternative to Papua New Guinea. His evidence was directed to the absence of relevant risk in that location. That was essentially the basis for Mr Nockels’s contention that the applicant’s circumstances were not “exceptional” so as to allow for Australian-based care as an option.

401 It is not necessary for me to enter that debate as I am not persuaded that feasible options outside of Australia are unavailable. However, a brief recount of the reasoning advanced by Mr Nockels demonstrates the implausibility of his position that the applicant’s circumstances are not exceptional.

402 Mr Nockels’s position was that the applicant’s circumstances were not exceptional to a degree sufficient so that she might be brought to Australia, because Dr Sapuri had advised that he could perform the abortion in Papua New Guinea. Mr Nockels came to or continued to hold that view despite:

 having accepted that he had no expertise and was reliant on IHMS to advise him on the appropriate needs for the conduct of a surgical abortion;

 IHMS having advised him that a surgical abortion should take place in Australia;

 his knowledge that PIH did not have neurological services of the kind IHMS had advised were required;

 having read the neurological, psychiatric and anaesthetic evidence called by the applicant in this proceeding as well as the evidence of the risks occasioned by XXX and having no reason to doubt that evidence;

 having not discussed that evidence with Dr Sapuri (who, in any event, would not have had the relevant expertise to contradict most if not all of the applicant’s experts); and

 having accepted that the baseline care appropriate was the Australian standard of care but not knowing whether Dr Sapuri’s advice was based on the application of PNG standards or Australian standards.

403 Furthermore, as to whether the legality of the abortion procured in Papua New Guinea provided a basis for saying that the circumstances were exceptional, Mr Nockels said he had assumed that Dr Sapuri would have an understanding of the “legal framework”. In that context, and without seeking legal advice, he relied and continues to rely on Dr Sapuri’s understanding, despite recognising that there is a serious issue raised about the legality of an abortion for the applicant in Papua New Guinea.

404 There are, in my view, no material considerations established on the evidence which weigh against or reasonably excuse the need for the Minister to have alleviated the risks to the applicant which I have found exist. I make that finding as to the medical risks, as to the legal risks and as to the combination of those risks. I do so with particular regard to the findings I have made as to the magnitude of the risks involved which, in each case, lead me to the conclusion that the risks are grave. I consider that a reasonable person in the Minister’s position would have alleviated and should alleviate those risks.

405 I find that by procuring (in the sense of obtaining or making available) an abortion for the applicant in Papua New Guinea, the Minister failed to exercise reasonable care in the discharge of the responsibility that he assumed to procure for the applicant a safe and lawful abortion. Accordingly, there was no discharge of the duty effected. Having not already procured for the applicant a safe and lawful abortion in the circumstances detailed by the evidence which I have accepted, and having indicated no intention to do so, I further find that the applicant has established a reasonable apprehension that the Minister will not do so. I also find that damage is likely to be caused to the applicant should the Minister not procure for her a safe and lawful abortion. In each case, by “safe and lawful abortion” I mean an abortion that that addresses the risks identified by the applicant’s medical experts and that is free of the risk of the applicant being charged or convicted of unlawful conduct.

406 In arriving at those conclusions, I have considered the Minister’s contention that there is no breach or no apprehended breach, as the standard of care must be assessed by reference to the medical services reasonably available in Papua New Guinea. In part, the Minister based that submission on the proper law being Papua New Guinean law and that the standard of care must therefore be assessed by reference to the medical services reasonably available in that country. I reject that submission for two reasons. First, I have found that the proper law is Australia. Second, I have earlier held that in the absence of evidence as to the tort law of Papua New Guinea, I must presume that the law is the same as the law of Australia. That means that whether the proper law is Australia or Papua New Guinea, the Shirt formula is to be applied. I fail to see a basis, and none was suggested, as to how the application of the Shirt formula would lead to a different result in this case, on the basis that the law of Papua New Guinea is the proper law. Again, it must be recognised that the breach alleged relates to the procurement, done in Canberra, of a service, and not the delivery of a service in Papua New Guinea. If the delivery of a medical service in Papua New Guinea by, for instance, a Papua New Guinean doctor was the alleged wrongful act, there may be a basis for that wrong to be assessed by reference to the standards of medical practice in Papua New Guinea. But that is not this case. The defendant here is a wealthy and advanced sovereign state. The reasonableness of its act of procurement, in Australia, of particular services is to be assessed by reference to what a reasonable defendant in that position would have done. I do not consider that, in those circumstances, the application of the Shirt formula would lead to a different result, whichever of the two competing contentions as to the proper law is accepted.

407 Second, the Minister submitted that if the proper law was Australia, the standard of care required should be informed by the medical care available in the country in which the applicant is found. That is reasoning directed at the factual position of the applicant rather than to the focus of the Shirt formula, which is the position of a reasonable person in the defendant’s position. It is a submission which ignores the significance of where the wrongful act of the defendant took place.

408 On the Minister’s approach, despite the wrongful act having occurred in Australia, the standard of medical care in the country where a plaintiff happens to be taken for medical treatment, would determine the applicable standard. That would be so irrespective of the options available to the defendant for procuring the medical assistance. To illustrate by reference to facts not relevantly dissimilar to those at hand: if an employee of the Commonwealth was very seriously burnt on Nauru and, by reason of a procurement of medical assistance done in Canberra, was taken to Papua New Guinea for treatment, rather than to the highly-specialised burns unit at the Royal Brisbane Hospital, on the Minister’s contention, the standard of care would be “attenuated” to the Papua New Guinean standards of medical care. The result would be that the procurement of medical assistance in Papua New Guinea rather than Brisbane would not provide a foundation for the employee to recover for injuries sustained by reason of the absence of a sophisticated burns unit in Papua New Guinea. That could not be the law. It would result in the wrongful act (the careless act of procuring) escaping an assessment as to its reasonableness. The applicant’s circumstances are not relevantly different. It was not suggested by the Minister that they were different because of the applicant’s status. If it matters (which I doubt), and in so far as the Minister relied on the applicant’s consent to travel to Papua New Guinea, I have found that her informed consent was not given.