Deaths in Custody: The Noose Around The Ombudsman’s Neck

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open letter from Mark Leech The Editor of The Prisons Handbook for England and Wales, to The Prisons and Probation Ombudsman

 

Dear Sue,

Recommendation Recommendation Recommendation Recommendation Recommendation Recommendation Recommendation Recommendation Recommendation Recommendation.

Did you bother reading each of those words – or notice I had inserted a number in one of them?

Actually, I didn’t, but you went back anyway and read them again; right?

Unfortunately, that isn’t what happens to the ‘Recommendations’ you make in your Fatal Incident Reports into deaths in custody; people don’t go back and read them again.

When you set out your ‘Recommendations’ designed to learn lessons and reduce deaths in custody, no one takes a blind bit of notice of them – and, what’s worse, your Office ignores the fact they’re ignored too.

Tragically you’re not alone in looking the other way. Independent Monitoring Boards (IMBs) in whose prisons these deaths take place, and to whom monitoring the implementation of these Recommendations should be a priority, ignore them too. Year after year, they simply airbrush them out of their Annual Reports as if they have never been made; I will return to this shortly.

Every single Prisons Ombudsman that’s gone before you in the last 25 years at least had the excuse that they’ve never unlocked a prison cell door and found a prisoner swinging dead with a noose around their neck; but as a former Prison Governor you don’t have the luxury of that excuse. You know exactly what it’s like: the shock, horror, frantic attempts at resuscitation, and the wave of utter devastation that then descends on the whole prison afterwards.

Yet, despite that personal experience deaths in custody keep happening and frequently too; as I write this we are six weeks into 2019 and already 20 people have died in our prisons – 17 of whom have seemingly taken their own lives, and eight definitely have.

Your Office still keeps investigating these deaths, still keeps writing their reports, still keeps making recommendations, and still does absolutely nothing when, time after time, those recommendations are ignored – lamentably this week you’ve done it again.

John Delahaye was 46 years old when he was found dead in his cell at Birmingham Prison on 5 March 2018; let me remind you of the catalogue of errors that lead up to it.

Ten weeks before his death Mr Delahaye was taken from Birmingham prison and admitted to hospital almost certainly having taken an insulin overdose; he returned to prison 24 hours later.

In your report into his death published this week, you write:

“When Mr Delahaye returned to Birmingham on 1 January following this overdose, there was no handover between hospital and prison healthcare staff and prison healthcare staff did not know he had returned to prison until the next day. 

I am also concerned that suicide and self-harm monitoring procedures (known as ACCT) were not started until the day after he had returned to prison. In addition, I have concerns about the way the ACCT procedures were managed when they were started. Staff did not effectively investigate why Mr Delahaye had taken the overdose and healthcare staff were not involved. The ACCT was closed prematurely two weeks later, with little having been done to identify or mitigate Mr Delahaye’s risk to himself. This was compounded by the fact that Mr Delahaye was discharged from mental health services after just one appointment.

I am concerned to be repeating recommendations to Birmingham about suicide and self-harm prevention procedures. [emphasis added]

“It is very difficult to understand why Mr Delahaye was allowed to have his insulin back in his possession less than a month after his overdose. I am concerned that NHS guidelines were not followed when this decision was made. 

“I also have serious concerns about the way staff at Birmingham conducted roll checks and unlocks. When Mr Delahaye was found on the morning of 5 March, he had clearly been dead for some time and it seems possible that no member of staff had seen him for more than 13 hours.

“This needs to be rectified urgently. 

“Staff also failed to use an emergency code when they found Mr Delahaye unresponsive. Although this did not affect the outcome for Mr Delahaye, it could make a critical difference in other cases.” 

Now, take a moment to look too at the Birmingham Prison IMB Annual Report published just 10 weeks ago and covering the period in which Mr Delahaye died in the prison. Neither his name, the circumstances of his death, nor the fact that your repeated recommendations had been ignored, are ever mentioned; not even once – they’re airbrushed out of existence; small wonder then why so many consider the IMB as completely and utterly useless?

I would remind you that your Office is not investigating the loss of someone’s property here, but the loss of someone’s life; yet it consistently fails to understand this vital distinction.

I accept the fact you are new to this role, and while there are those who say that as a former Prison Governor you are not the right person to be holding this critical Independent Office, I’m not yet one of them. I think your experience as a Governor means you know where to look, what questions to ask, what answers to demand and having opened cell doors and cut dead people down you know exactly how important all this really is.

The question is: when will we see action from your Office and not just words that everyone, including IMBs, totally ignore?

Yours sincerely,

Mark Leech

Editor: The Prisons Handbook for England and Wales

@prisonsorguk

Nigel Newcomen: Six Years As Prisons Ombudsman – The Wrong Man For The Job?

newcomen

The past year saw an 11% rise in prison suicides, more deaths from natural causes and eligible complaints up 9%, said Prisons and Probation Ombudsman Nigel Newcomen. Today he published his sixth and final annual report and warned that these statistics, combined with high levels of violence and incidents of significant disorder, indicate a prison system still very much in crisis – and his critics say he himself is largely responsible for a failure to bring about change.

The Prisons and Probation Ombudsman (PPO) independently investigates the circumstances of each death in custody and identifies lessons that need to be learned to improve safety. In 2016-17:

  • PPO investigations were started into 361 deaths, 19% more than the year before;
  • the PPO began 19% more investigations into deaths from natural causes (208 deaths), largely as a consequence of rising numbers of older prisoners;
  • investigations were started into 115 self-inflicted deaths, an 11% increase on last year’s record number of self-inflicted deaths (104) ;
  • there were four apparent homicides, a decrease from six the previous year;
  • investigations started into three deaths of immigration removal estate residents, the same figure as the previous year; and
  • a further 16 deaths were classified as ‘other non-natural’ (usually drug related).

Nigel Newcomen said:

“The previous Government recognised the need for reform and a range of changes to the prison system was begun. However, the problems are significant and systemic. Reforms will founder unless they are underpinned by a transformation in prison safety.

“One of the systemic failures is the apparent inability of prisons under pressure to learn lessons or to sustain improvement based on that learning. It is not lack of knowledge, but a lack of effective action that is at issue. This level of repeat failure must not be allowed to continue. As I leave office, I must hope that prisons and their hard-pressed staff can emerge from a uniquely challenging and dispiriting period and address the well-evidenced concerns of scrutiny bodies such as mine.

On suicides, he said:

“Self-inflicted deaths rose 11% last year. While I welcome the fact that this rate of increase was less rapid than the 34% increase the year before, it was still unacceptably high. I do not think there is a simple, single explanation for these continued increases. Each self-inflicted death is the tragic culmination of an individual crisis for which there can be a myriad of triggers.

“Some major themes emerge from my investigations that must be acted upon, for example the pervasiveness of mental ill-health and an epidemic of new psychoactive drugs, but whatever the explanation for the rise, self-inflicted deaths are just too prevalent in prison. That is why the safety net of effective suicide prevention work is essential, although too often my investigations identify repeated failings in these procedures.

The other principal part of the PPO’s remit is the independent investigation of complaints. In 2016-17:

  • the total number of new complaints received was 5,010, a 5% increase on the previous year;
  • 2,568 investigations were started, compared to 2,357 cases the year before;
  • overall, 2,313 investigations were completed, 23 more than 2015-16;
  • in 39% of the investigations, the PPO found in favour of the complainant, compared with only 23% in 2011-12;  and
  • the largest category of complaints was about lost, damaged and confiscated property.

Nigel Newcomen said:

“The ability to complain effectively is integral to a legitimate and civilised prison system. A meaningful internal complaints process, overseen by an independent adjudicator, such as my office, is an important means for prisoners to ventilate grievances legitimately. It can also help avoid illegitimate explosions of anger about perceived failings, which have been all too common in prisons in the past year.

“Many of the complaints reaching my office should have been resolved at source by an effective local complaints process. When prisons fail to manage complaints effectively, it leads to frustration for prisoners, places additional burdens on staff and uses up my scarce resources, which could be better deployed on more serious or complex cases. The prison reform agenda needs to include a requirement on each prison to have a fully functioning complaints process.”

The recommendations made as a result of PPO investigations are key to making improvements in safety and fairness in custody. The past year also saw the publication of a range of learning lessons publications which look across individual investigations to identify broader themes. In 2016-17, six bulletins  were published. Two provided important analyses of how prisons should respond to violence. One of these set out lessons from investigations into homicide in prison. Another provided lessons to minimise the inappropriate use of force by staff having to deal with escalating rates of assault. Other bulletins looked at how to support particularly vulnerable populations: children, transgender prisoners and elderly prisoners with dementia. The year’s final bulletin identified lessons to reduce the increase in self-inflicted deaths of female prisoners.

Nigel Newcomen said:

“I leave office shortly and do so with a mixture of pride in the efforts of my staff to contribute to safer, fairer custody, and sadness that I can report only limited improvement in prison safety and conditions over the past year.”

Mark Leech editor of The Prisons Handbook said: “The reality is that while Nigel Newcomen has been better than I expected as Prisons Ombudsman, he has still fallen miles short of the gate-rattling independent scrutineer that is so desperately needed to ensure progress in our prisons is made.

“No one takes any real notice of his reports or findings, they are interesting and well intentioned but we need someone with balls to stand up and shout ‘LOOK UNLESS YOU DO SOMETHING ABOUT THIS RIGHT NOW PEOPLE ARE GOING TO DIE’ – and what’s more keep shouting it in public press conferences and hard hitting news reports.

“But that is not who Nigel Newcomen is.

“A man who spent 20 in the Prison Service, rising to Assistant Director, was he the right man for this independent job?

“I do not think so, he has not only managed to change so little, but its why things have actually got far worse.

“His Learning Lessons briefings have been good, so I suggest that whoever replaces him as Ombudsman starts by writing a Learning Lessons briefing on where Nigel Newcomen went so wrong and then does what the title says on the tin.

“Learn lessons.”

Prison Deaths From New Psychoactive Substances Rises To 79 Says Ombudsman

spice

The number of prisoner deaths in which the use of new psychoactive substances (NPS) may have played a part has now risen to at least 79, said Prisons and Probation Ombudsman (PPO) Nigel Newcomen. Tonight (11/7/2017) he addressed the All-Party Parliamentary Group on Penal Affairs at the House of Lords.

Looking back at his six-year tenure, and discussing the rise in self-inflicted deaths in prisons, Mr Newcomen said the prison system was yet to emerge from a crisis. He discussed major themes that have emerged from his investigations and studies into deaths in custody that need to be acted upon, and mentioned the problem of mental ill-health among prisoners, which needs to be better recognised by staff and, if recognised, better managed.

 

Nigel Newcomen said:

“As well as mental ill-health, another contributory factor to the increase in suicide in prison is the epidemic of new psychoactive substances. My researchers have now identified 79 deaths between June 2013 and September 2016 where the deceased was known or strongly suspected to have taken NPS before death or where their NPS use was a key issue during their time in prison. Of these investigations, 56 were self-inflicted deaths.

In the past, Mr Newcomen has highlighted the four types of risk from NPS:

  • a risk to physical health – NPS use may hasten the effects of underlying health concerns;
  • a risk to mental health, with extreme and unpredictable behaviour and psychotic episodes, sometimes linked to suicide and self-harm;
  • behavioural problems, where the NPS user has presented violent or aggressive behaviour, which is often uncharacteristic for that prisoner; and
  • the risk of debt or bullying, as the use of NPS often results in prisoners getting into debt with prison drug dealers.

Nigel Newcomen said:

“Establishing direct causal links between NPS and the death is not easy, but my investigations identified a number of cases where my clinical reviewers considered that NPS led to psychotic episodes which resulted in self-harm. In other cases, NPS led to bullying and debt of the vulnerable, also resulting in self-harm.

“NPS is a scourge in prison, which I have described as a “game-changer” for prison safety. Reducing both their supply and demand for them is essential.

“But neither mental ill-health, nor the availability of NPS wholly explain the rise in suicides in prison. Every case is an individual tragedy with numerous triggers. And, in such complex circumstances, the safety net of effective suicide prevention procedures is essential. Unfortunately, too often my investigations identify repeated failings in prison suicide prevention procedures.”

Mark Leech editor of The Prisons Handbook said: “This further rise in prison deaths attributable to NPS is deeply concerning, it shows that despite a range of measures introduced by HMPPS, and a Thematic Review by the Chief Inspector of Prisons in December 2015, these dangerous drugs continue to cause deaths inside our prisons.

“Research shows that synthetic cannabinoids, usually known as Spice or Black Mamba, form the only category of illicit drugs whose use by prisoners is higher in prisons than in the community, 10% compared to 6%, and there is no easy answer to it – many of those who take NPS say they do so for reasons of boredom one solution therefore is to resource the Prison Service to deliver the active purposeful regimes that have been steadily stripped away since 2010.”

The Prisons Handbook: Further reading and research on NPS can be found at the following links

■ NPS in Prisons – a Toolkit for Staff: http://www.nta.nhs.uk/uploads/9011-phe-nps-toolkit-update-final.pdf

■ Drug Misuse: Findings from the 2015/16 Crime Survey for England and Wales https://www.gov.uk/government/statistics/drug-misusefindings-from-the-2015-to-2016-csew

■ Changing patterns of substance misuse in adult prisons and service responses. A thematic review by HM Inspectorate of Prisons https://www.justiceinspectorates.gov.uk/hmiprisons/ wp-content/uploads/sites/4/2015/12/Substance-misuseweb-2015.pdf

■ Adult substance misuse statistics from the National Drug Treatment Monitoring System (NDTMS)1st April 2015 to 31st March 2016 http://www.nta.nhs.uk/uploads/adult-statistics-from-thenational-drug-treatment-monitoring-system-2015-2016[0].pdf

■ HM Chief Inspector of Prisons for England and Wales Annual Report 2014–15 https://www.justiceinspectorates.gov.uk/hmiprisons/wpcontent/uploads/sites/4/2015/07/HMIP-AR_2014-15_TSO_ Final1.pdf

■ HM Chief Inspector of Prisons for England and Wales Annual Report 2015–16 https://www.justiceinspectorates.gov.uk/hmiprisons/wpcontent/uploads/sites/4/2016/07/HMIP-AR_2015-16_web-1. pdf

■ Spice: the bird killer (User Voice May 2016) http://www.uservoice.org/wp-content/uploads/2016/05/ User-Voice-Spice-The-Bird-Killer-Report-Low-Res.pdf

■ Project NEPTUNE guidance, 2015 www.neptune-clinical-guidance.co.uk/wp-content/ uploads/2015/03/NEPTUNE-Guidance-March-2015.pdf

■ Harms of Synthetic Cannabinoid Receptor Agonists (SCRAs) and Their Management. Novel Psychoactive Treatment UK Network NEPTUNE http://neptune-clinical-guidance.co.uk/wp-content/ uploads/2016/07/Synthetic-Cannabinoid-ReceptorAgonists.pdf

■ Ministry of Justice press release, 25 January 2015 www.gov.uk/government/news/new-crackdown-ondangerous-legal-highs-in-prison

■ Centre for Social Justice, ‘Drugs in prison’, 2015 http://www.centreforsocialjustice.org.uk/library/drugs-inprison

■ EMCDDA, European Drug Report 2015: ‘Trends and developments’, June 2015 www.emcdda.europa.eu/publications/edr/trendsdevelopments/2015

■ Drugscope, ‘Not for human consumption: an updated and amended status report on new psychoactive substances and ‘club drugs’ in the UK’,2015 http://www.re-solv.org/wp-content/uploads/2015/06/Notfor-human-consumption.pdf

■ PHE, ‘New psychoactive substances. A toolkit for substance misuse commissioners’, 2014 www.nta.nhs.uk/uploads/nps-a-toolkit-for-substancemisuse-commissioners.pdf

■ Home Office, ‘Annual report on the Home Office Forensic Early Warning System (FEWS). A system to identify new psychoactive substances (NPS) in the UK’, September 2015 https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/461333/1280_EL_FEWS_Annual_ Report_2015_WEB.pdf

■ Global Drug Survey 2016 https://www.globaldrugsurvey.com/past-findings/theglobal-drug-survey-2016-findings/

A copy of the speech can be found on the PPO’s web site from 14 July 2017. Visit www.ppo.gov.uk.

Transgender Prisoners Often Vulnerable and Need to be Better Managed Says Ombudsman

transgender_logoPrisons need to be more flexible and proactive in managing transgender prisoners, based on their individual needs and circumstances, so that they can live safely, said Prisons and Probation Ombudsman (PPO) Nigel Newcomen. Today he published a bulletin on lessons that can be learned from his investigations.

The bulletin draws on recommendations from investigations into deaths in custody, as well as complaint investigations. It identifies six lessons from past cases that aim to protect transgender prisoners better from bullying and harassment and to support transgender prisoners better to live in their gender identity while in prison. It is difficult to estimate precisely how many serving prisoners are transgender, but while the number is growing, it is still relatively small – approximately 80. Nearly all of the complaints received, and deaths investigated (five between 2008 and August 2016) were related to transgender female prisoners, nearly all of whom were housed in the male estate.
Prisons house male and female prisoners separately, and will usually distinguish gender based on that which is recognised by law. According to the Gender Recognition Act 2004, proof of gender is determined either by the person’s birth certificate, or a gender recognition certificate (GRC). The process for obtaining a GRC is complex. Because of the process and the cost involved, because of the symbolism, or because it can have implications for existing marriages, many transgender people choose not to obtain a certificate. Most transgender prisoners are, at least upon first arrival in prison, housed according to the gender they were assigned at birth.

The regulations that guide the care and management of transgender prisoners in England and Wales are found in a Prison Service Instruction (PSI), issued in November 2016. Many of the lessons outlined, and many of the recommendations previously made by the PPO, are reflected in the new PSI.

Previous research has shown there is a greater prevalence of mental health concerns and risk of suicide in the transgender population. When a person enters prison, they leave behind what support they had in the community. The prison environment can be particularly difficult for transgender prisoners, exacerbating existing vulnerabilities.

The bulletin highlights the need for:

  • evaluating the location of a transgender prisoner based on an individual assessment of their needs and considering the possibility of them residing in the estate of their acquired gender;
  • all relevant people involved in a transgender prisoner’s care attending ACCT case reviews (for those deemed at risk of suicide or self-harm);
  • meaningfully investigating all allegations of transphobic bullying and harassment and taking steps taken to challenge and prevent it;
  • personal officers having regular, meaningful contact with transgender prisoners, staff being aware of their vulnerabilities and challenging inappropriate behaviour;
  • local policies to be in line with national guidance and not imposing unfair additional restrictions; and
  • reasonable adjustments being made for transgender prisoners to help them to live in their gender role.

Nigel Newcomen said:

“My office has historically received few complaints from prisoners identifying themselves as transgender, and, fortunately, has investigated relatively few deaths of transgender individuals in custody. However, more recently, these numbers have been climbing. Last year, in quick succession, two transgender women tragically took their own lives while in custody. A third transgender woman is thought to have taken her own life in November 2016, and a fourth in December 2016.

“Prisons are always difficult environments, never more so than in recent months, but they have a fundamental responsibility to keep prisoners safe and to protect and support those with particular vulnerabilities. Transgender prisoners are among the most vulnerable, with evident risks of suicide and self harm, as well as facing bullying and harassment.

“This bulletin also coincides with a long-awaited review of the Prison Service Instruction (PSI) that governs the care and management of transgender prisoners. This PSI reflects the appropriately heightened awareness of transgender issues in prison – and in society as a whole.”

A copy of the report can be found on our website from 10 January 2017. Visit www.ppo.gov.uk.

Use of Force ‘should be a last resort in Jails’ says Ombudsman

useofforceStaff face enormous challenges in keeping order and control in prisons, and the use of force must always be an option, but it should be a measure of last resort, said Prisons and Probation Ombudsman (PPO) Nigel Newcomen. Today he published a bulletin on further lessons that can be learned from investigations into complaints about the use of force.

Prison Service policy on the use of force is set out in Prison Service Order (PSO) 1600 which says that “the use of force is justified and therefore lawful, only if: it is reasonable in the circumstances, it is necessary, no more force than necessary is used and it is proportionate to the seriousness of the circumstances.” PSO 1600 makes clear that the type of harm the member of staff is trying to prevent should be considered. This may cover risk to life or limb, risk to property or risk to the good order of the establishment. The PSO also states that staff should always try to prevent a conflict where possible and that control and restraint (C&R) “must only be used as a last resort after all other means of de-escalating the incident, not involving the use of force, have been repeatedly tried and failed.”

A previous bulletin on this subject, published in 2014, highlighted learning for prisons from investigations into complaints about the use of force. Additional lessons have been identified from more recent investigations. A number of these cases involved ‘planned removals’ where a decision has been taken to move a prisoner from their cell to another location and a C&R team of three staff wearing helmets and carrying a shield are assembled to carry out the removal.

The report found that:

  • in a number of cases, there had been no attempts to de-escalate the situation once the C&R team has arrived at the cell;
  • in some cases the team were told at a briefing that they should only give the prisoner “one more chance” to comply and then use force, which pre-disposed the team to use force;
  • there were some occasions where the Supervising Officer deferred to the lead (“Number One”) officer rather than taking a supervisory role throughout the incident;
  • sometimes officers find it difficult when prisoners blatantly disregard their orders and may use one-on-one force rather than alternative disciplinary methods;
  • some prisoners don’t get a proper healthcare examination immediately after an incident involving force, because they are too worked up; and
  • in some cases there have been suspicious similarities of language in Use of Force statements provided by different officers.

The lessons from the bulletin are that:

  • the arrival of the C&R team in a planned removal should be treated as a new situation;
  • briefings prior to a planned removal should cover the likely risks rather than being prescriptive about when force should be used;
  • the roles of the Supervising Officer and the Number One Officer in the C&R team are different;
  • a one-on-one use of force is very risky and should be used only if there is immediate risk to life or limb;
  • a brief view by a nurse through the hatch of a cell door will not meet the requirement for a prisoner to be examined by a healthcare practitioner following a use of force; and
  • staff must write their Annex A Use of Force statements independently.

Nigel Newcomen said:

“In some ways it is reassuring that there are relatively few complaints to my office about alleged physical abuse of detainees by custodial staff. In 2014-15, of 2,303 complaints eligible for investigation, only 50 involved such allegations.

“They are, however, among the most serious and important complaints that I receive as they go to the heart of the humanity and legitimacy of the prison system. Ensuring independent investigations into allegations of physical abuse is, therefore, essential to maintaining safety and giving assurance of the proper treatment of those in custody. My investigations also ensure that staff are held to account for misbehaviour and I have had to recommend disciplinary action on a number of occasions. Equally, in other cases, my investigations have provided assurance that use of force by staff was appropriate and their behaviour exemplary in difficult circumstances.

“Prisons can be violent places and recorded levels of prisoner-on-prisoner and prisoner-on-staff assaults are at an all time high. Staff face enormous challenges in keeping order, so use of force must always be an option. However, it is only lawful if it is reasonable, necessary and proportionate. Use of force should always be a measure of last resort.”

Mark Leech, editor of The Prisons Handbook for England and Wales said it was concerning that the bulletin ‘had to state the obvious.’

Mr Leech said: “Of course use of force should be a last resort, this bulletin however is concerning as that it finds it necessary to state the obvious.

“Violent incidents in our prisons have rocketed recently, and so this timely reminder of the rules is welcome, although it seems even basic lessons and Use of Force rules have been forgotten.”

 

NOTES TO EDITORS

  1. A copy of the report can be found on our website from 17 May 2016. Visit www.ppo.gov.uk.
  2. The PPO investigates deaths that occur in prison, immigration detention or among the residents of probation approved premises. The PPO also investigates complaints from prisoners, those on probation and those held in immigration removal centres.
  3. Prisons and Probation Ombudsman Learning Lessons Bulletin: Use of Force, published in 2014, is available online: http://www.ppo.gov.uk/?p=3722
  4. Please contact Jane Parsons, PPO Press Office, on 020 3681 2775 or 07880 787452 if you would like more information. Alternatively please send requests or feedback to Prisons and Probation Ombudsman, PO Box 70769, London, SE1P 4XY.