Prisons & Probation Ombudsman Annual Report 2011 – 2012

229 persons died in prison, immigration detention and probation service approved premises in 2011–12.

This is the highest annual figure since we took on this onerous responsibility in 2004 and a 15% rise on the previous year

71 committed suicide, 13 more than the previous year and a reversal of the downward trend seen in recent years.

142 deaths from natural causes: 9 were from some other non-natural cause, mostly drug-related.

1 was homicide and 6 cases are still awaiting classification at the time of writing this report

15 deaths were investigated in probation approved premises (four more than last year) 4 in immigration removal centres (two more than last year)

20% of our investigations into self-inflicted deaths found evidence of bullying or intimidation from other prisoners in the three months before their death."

Prisoners aged 60 and over are now the fastest growing age group in the prison estate and this rose 128% between 2000 and 2010

Increasing numbers of people are growing old and dying of natural causes in prison, said Nigel Newcomen, Prisons and Probation Ombudsman (PPO), as he published his first annual report. He added that there had also been a troubling rise in the number of self-inflicted deaths in custody.

PPO independently investigates the circumstances of each death in custody and identifies lessons that can be learned so that services are encouraged to improve. In 2011-12, the PPO started 229 investigations into deaths in prison, immigration detention and probation service approved premises. This was the highest annual figure since the PPO took on this responsibility in 2004, and a 15% rise on the previous year. The year also saw three apparently self-inflicted deaths of children in custody, the first such deaths in over three years.

The recommendations made as a result of PPO investigations are key to effecting change when needed. For example, the PPO saw a growth in the number of cases where the deceased was undergoing methadone treatment and had also been taking other drugs, either licit or illicit. These concerns were raised with the National Offender Management Service (NOMS) who launched their own inquiry.

Nigel Newcomen said: "The majority of deaths investigated were from natural causes, continuing an upward trend over recent years, which may reflect the fact that more prisoners now serve longer sentences, more prisoners are sentenced later in life and some prisoners display significant health deficits. This has led to an aging and ailing population and prisons having to care for increasing numbers of people who are growing old and dying of natural causes in their care. The number of apparently self-inflicted deaths also rose, a reversal of the downward trend seen in recent years. This is particularly worrying."

The other principal part of the PPO's remit is the independent investigation of complaints. The total number of complaints received, around 5,300, is a similar number to those received last year, although around half of those complaints were found to be ineligible. However, as more investigations were begun this year, there was a significant rise in actual casework, at a time when the PPO, along with other public services, faces considerable budget cuts.

Mr Newcomen said: "My staff will rise to the challenge of delivering more for less and my office will target resources more effectively. I need to ensure we do a first class job in our most serious cases where there is most to put right and most to learn but I will have to be more proportionate in other cases. In every case, however, care for bereaved families and fairness to complainants will remain the touchstone."

Serious complaints:
Ms C, a young offender, complained, among other things, that she was unable to complete her Detention and Training Order (DTO) because she was transferred to an adult establishment on her eighteenth birthday.

The investigation found that, once Ms C transferred to the adult establishment, she was no longer engaged in a DTO regime and followed the normal regime for adult sentenced offenders. In our view this effectively subverted the court's intentions and substituted a different, less therapeutic, form of sentence. We also found that different procedures are followed for male and female young offenders. The presumption is that, on turning 18, a male young offender will remain where he is and continue with his DTO. Female young offenders, however, are routinely transferred to adult establishments because of lack of space and are, therefore, unable to complete their DTOs in any meaningful sense. The Chief Executive of NOMS accepted our recommendation that he carry out a review of national policy on the transfer of 18-year-old women serving a DTO, to ensure that they are not treated any less favourably than young men and continue to experience a regime that is consistent with the intentions and ethos of a DTO.

Serious complaints concerning prison's responsibility to care for prisoners appropriately.
Ms E, a prisoner in a male high security prison who regards herself as transsexual, complained that she was not being allowed to live in role as a woman. The prison accepted that they had refused to allow Ms E to wear female clothes. They said that Ms E did not yet have a diagnosis of gender dysphoria and that she was a vulnerable individual who would be at risk of sexual exploitation by other prisoners if she was allowed to live and dress as a woman.

Our investigation found that Ms E's medical diagnosis was extremely complex and that she was a vulnerable person who did not always show good judgement in relation to her personal safety. We accepted that, in refusing to allow Ms E to live and dress as a woman, the prison believed that they were acting in her best interests. We found no evidence that prison staff were pursuing a personal vendetta against her, as she believed. On the contrary, we were satisfied that she had been treated with sensitivity and that staff had invested considerable time in trying to ensure her safety and wellbeing.

However, the Prison Service's own policy on the care and management of transsexual prisoners (set out in PSI 07/2011) says that a formal diagnosis of gender dysphoria is not required and that establishments must permit prisoners who consider themselves to be transsexual to live permanently in their acquired gender. This will include allowing prisoners to dress in clothes appropriate to the acquired gender. The policy makes it clear that any risk to and from a transsexual prisoner must be identified and managed.

In this case, it was clear that the prison was not complying with Prison Service policy. We fully recognise the challenges that a transsexual prisoner living in role can pose in a male high security prison. Nevertheless, prisons have to manage many prisoners whose offence, sexuality, personality or behaviour puts them at particular risk. The risks of dressing as a woman must be managed in the same way as any other vulnerability. We, therefore, upheld Ms E's complaint and recommended that the prison put plans in place to manage transsexual prisoners in line with PSI 07/2011. It was also recommended that the Prison Service take account of our report in their training for staff on the care and management of transsexual prisoners.

One of the Biggest Causes for Complaint was Lost or Damaged Property
Other complaints may seem relatively minor to many people, but are nevertheless significant to detained complainants. For example, as in previous years, one of the biggest causes for complaint was lost or damaged property. Although the sums involved are often small, most prisoners have very few possessions and those they do have may be an important source of personal identity. The care establishments take with prisoners' property may also say something about their attitude to prisoners more generally.

Property cases have the highest uphold rate of all complaints, with over a quarter either fully or partially upheld and a further 16% where mediated settlements are achieved. This high uphold figure reflects the fact that many property complaints need never reach this office and should have been resolved locally. It is often clear, for example, that the property has gone missing or been damaged in transit between two or more prisons, but none of the establishments involved are prepared to accept responsibility and the prisoner is simply passed backwards and forwards between them. Other complaints arise because prisons fail to follow Prison Service policy. The care establishments take with prisoners' property may also say something about their attitude to prisoners more generally

In Mr G's case, for instance, he complained that a number of items had been wrongly confiscated from him. The investigation found that the items probably belonged to Mr G and the Governor had agreed to send them on to Mr G at his current prison. The complaint seemed to have been settled satisfactorily. However, Mr G then contacted us again to complain that, when his property arrived at his current prison, it had been destroyed. The prison accepted that it had destroyed the property, but said it had done so, in line with local policy, because they had been told that the items had been confiscated at Mr G's previous prison.
This was concerning because, since March 2010, Prison Service policy has reflected the Coleman ruling which established that Governors may confiscate a prisoner's property temporarily, but have no power to destroy it or deprive them of it permanently. The prison's local policy was, therefore, not in line with national policy – or the law. We upheld Mr G's complaint and recommended that he be paid £100 in compensation.

Mr I complained that several items of clothing had gone missing in the laundry. The prison had refused to compensate him on the grounds that he had signed a disclaimer saying that he held property in his possession at his own risk.
However, following a previous Ombudsman's case, Prison Service policy makes it quite clear that it is not reasonable to expect a prisoner to bear responsibility for any loss or damage to items that have been handed over to the prison laundry. We, therefore, upheld Mr I's complaint and recommended that he be paid £100 in compensation.

Mr N had been convicted of serious sexual offences against the young daughters of his previous partner. After being released on licence, he had formed a relationship with another woman with young daughters. He was subsequently recalled to prison and then applied to marry his new partner. The prison was concerned that she was a vulnerable individual and that her children would be at high risk of harm if she married Mr N. They, therefore, delayed taking a decision on his application while they consulted the Multi Agency Public Protection Panel. Mr N complained that this amounted to an unlawful refusal.

The investigation established that Mr N's partner had been told about his convictions and that she still wished to marry him. It was also established that Social Services had been made aware of the situation. We found that the prison's delay had in effect amounted to a refusal of Mr N's application. We recognised that the prison had acted in what it believed to be the best interests of Mr N's partner and her children. However, Governors have no authority to refuse a prisoner's application to marry on the grounds that the marriage is undesirable. We, therefore, upheld Mr M's complaint. He had by then transferred to another prison where the marriage had gone ahead.

In about 20% of complaints about adjudication, we concluded the finding of guilt was unsafe

Adjudications are another significant cause for complaint. As with property complaints, many of these complaints need never reach this office if Prison Service policy is correctly followed. The Ombudsman's role in considering complaints about adjudications is not to rehear the evidence, but to decide whether, based on the evidence presented at the hearing, it was established beyond reasonable doubt that the prisoner did what he was charged with doing, that the correct procedures were followed, and that a fair and just decision has been reached. In about 20% of complaints about adjudication, we concluded that the finding of guilt was unsafe – most commonly because the adjudicator had failed to call witnesses without good reason, or to enquire fully into the prisoner's defence, or to record the reasons for decisions.

Mr K was charged with using threatening, abusive or insulting words or behaviour. The adjudicator found the charge proven and Mr K received a punishment of seven days cellular confinement. Mr K complained that the adjudicator had refused to call his witnesses.

The investigation established that the adjudicator had indeed refused to call Mr K's witnesses. He may or may not have had justifiable grounds for doing so, but it was impossible to know because he had not recorded his reasons, beyond saying, 'I do not propose to have a parade of prisoner witnesses who will all tell me the same thing'. As a result, we could not be satisfied that the adjudicator had made sufficient inquiries into Mr K's defence to find the charge proved beyond reasonable doubt. We, therefore, upheld Mr K's complaint and recommended that the finding of guilt be quashed. This was the second poorly conducted adjudication in a short space of time from the same prison and we, therefore, recommended that the Governor remind adjudicators that they need to ensure the prisoner's defence is fully explored and that a clear record is made of the hearing. We then investigated a third very poor adjudication from the same prison making the same errors, and have now recommended that adjudicators at the prison are given refresher training.

Mr M complained that his prison had opened his legally privileged mail on several occasions and had lost recorded delivery letters he had placed in the external post. He believed his post was being deliberately targeted by prison staff.

Our investigation was unable to establish what had happened to individual items of Mr M's mail. However, we found that some staff involved in handling prisoners' mail did not have a good understanding of the processes to be followed, there was poor communication between departments and there was a lack of structure and direction. In these circumstances, it was easy to imagine errors occurring. We, therefore, upheld Mr M's complaint on the balance of probabilities, although we concluded that the problems with his mail had been caused by systemic problems at the prison and he had not been deliberately targeted. We recommended that the prison carry out a review of their procedures for handling prisoners' mail. This review has been completed and, if its conclusions are implemented, there should be no further grounds for such complaints.

Incentives and earned privileges:
As in previous years, we received a number of complaints from prisoners who were unable to achieve the enhanced level of the incentives and earned privileges (IEP) scheme because they were not taking part in accredited offending behaviour programmes. Such complaints generally come from prisoners convicted of sexual offences who have been assessed as being unable to take part in the Sex Offender Treatment Programme (SOTP) because they deny their guilt. The Prison Service is obliged to accept the verdict of the courts and we consider that it is appropriate for the most important aspects of a prisoner's time in custody – risk reduction work, pro-social behaviour and compliance with sentence plan objectives – to be rewarded by the IEP scheme. Conversely those who do not engage with this work should not expect to receive the same rewards as those who make the often painful steps towards confronting and changing their offending behaviour.

We upheld the following complaint.Mr O had been convicted of serious sexual offences, which he denied. He complained that he was downgraded to standard because he was not undertaking any offending behaviour work. We were concerned to find that, although Mr O had been in custody for two years, he did not have an OASys risk assessment or a sentence plan (apparently because of a disagreement about which probation trust had responsibility for him). As a result, although he had been told that he needed to do the SOTP, he had never been assessed to determine whether he was suitable for it.

We did not consider that it was reasonable to penalise Mr N for not undertaking a programme for which he had never been assessed. We, therefore, upheld Mr O's complaint and recommended that his enhanced status be restored. The report was also copied to the Chief Officer of the relevant probation trust so that a sentence plan could be put in place for him.

Recommendations that cost money:
Almost all the recommendations made by the Ombudsman are accepted by NOMS and UKBA. However, as budgets are cut, there may be less willingness to accept recommendations that come with a price tag. We are conscious that recommendations need to be realistic, but at the same time this will not stop us making recommendations which are right and necessary.

Mr S complained that he was not able to make a hot drink when he was locked up overnight (for between 12 and 15 hours depending on the day of the week). This was out of line with Prison Service policy and practice in most prisons. In our view, both health and decency require that prisoners are provided with the means to make a hot drink when they are locked up for such long periods. Commendably, the Prison Service accepted the recommendation – and the cost implications – that the prison should provide prisoners with vacuum flasks or in-cell kettles for this purpose.
Mr W complained that the Probation Trust had refused to consider his complaints about his offender manager. The investigation established that Mr W had complained to the Trust about a number of alleged inaccuracies in his offender manager's report to the Parole Board.

The Trust initially told Mr W that no changes would be made to the report. However, when Mr W continued to complain, an internal investigation was carried out which concluded that, although most of Mr W's complaints were unfounded, the report did contain two, potentially quite significant errors. As a result the Trust apologised to Mr W. Mr W remained dissatisfied because he believed that the Trust had failed to implement the findings of the internal investigation. He, therefore, asked for his complaints to be reviewed by an appeal panel (in line with the Trust's policy). The Trust refused on the grounds that Mr W had raised no new information. When Mr W wrote repeatedly asking for his complaints to be reviewed, and making derogatory remarks about staff, the Trust categorised him as a vexatious and persistent complainant and told him that they would no longer respond to his letters.

We concluded that the Trust had contravened its own complaints policy by refusing to arrange a review of Mr W's complaint. Whether or not he had raised any new points, Mr W was entitled to have his complaint reviewed by an appeal panel, and it was not appropriate to categorise him as a vexatious and persistent complainant because he continued to ask that this be done. We upheld the complaint and recommended that the Trust apologise to Mr W and arrange for his complaint to be reviewed.
Immigration detention: We investigated 76 complaints from immigration detainees during the year. Many were similar to those from prisoners, with a third being about property.

But we have also investigated some serious complaints of assault by staff. There was the case of Ms B on page 32 and the following investigation into assault.

Ms Y complained that she had been assaulted by escorting staff8 and left with her hands cuffed behind her back for over five hours. An investigation carried out by UKBA's Professional Standards Unit found that Ms Y had been handcuffed as she described because the escorting staff had lost the key to the cuffs, and recommended that she receive an apology. It went on to find that CCTV was not working in the escort van when the alleged assault occurred, and concluded that Ms Y's allegation of assault could not be substantiated.

We took the view that UKBA's investigation had been inadequate for such a serious complaint in that neither Ms Y, nor the staff involved had been interviewed. We were extremely concerned to learn that the CCTV in the escort van did not function when the engine was turned off, since, in the nature of things, most incidents that may give rise to complaint – restraints and the application of handcuffs – will take place when the vehicle is stationary. We were also disappointed to find that the escort contractors had refused to apologise to Ms Y for the fact that her hands were cuffed behind her back for five hours. They argued that, even if the escort staff had not lost the key, she would have been handcuffed anyway because of her behaviour. We did not accept this – the evidence from the escorts themselves was that Ms Y was asleep for most of the time. We recommended that UKBA ensure that CCTV operates in escort vehicles for the whole time a detainee is in them and this has been accepted. We also recommended that UKBA apologise to Ms Y for the shortcomings in their investigation and we await a response.

Complaints - Persons able to complain
10. The Ombudsman will investigate complaints submitted by the following categories of person:

i) prisoners who have failed to obtain satisfaction from the prison complaints system and whose complaints are eligible in other respects;

ii) offenders who are, or have been, under probation supervision, or accommodated in approved premises, or who have had reports prepared on them by NOMS and who have failed to obtain satisfaction from the probation complaints system and whose complaints are eligible in other respects;

iii) immigration detainees who have failed to obtain satisfaction from the UKBA complaints system and whose complaints are eligible in other respects.

11. The Ombudsman will normally only act on the basis of eligible complaints from those individuals described in paragraph 10 and not on those from other individuals or organisations. However, the Ombudsman has discretion to accept complaints from third parties on behalf of individuals described in paragraph 10, where the individual concerned is either dead or unable to act on their own behalf.

Matters subject to investigation 12. The Ombudsman will be able to investigate:
i) decisions and actions (including failures or refusals to act) relating to the management, supervision, care and treatment of prisoners in custody, by prison staff, people acting as agents or contractors of NOMS and members of the Independent Monitoring Boards, with the exception of those excluded by paragraph 14. The Ombudsman's terms of reference thus include contracted out prisons, contracted out services including escorts, and the actions of people working in prisons but not employed by NOMS;

ii) decisions and actions (including failures or refusals to act) relating to the management, supervision, care and treatment of offenders under probation supervision by NOMS or by people acting as agents or contractors of NOMS in the performance of their statutory functions including contractors and those not excluded by paragraph 14;
iii) decisions and actions (including failures or refusals to act) in relation to the management, supervision, care and treatment of immigration detainees and those held in short term holding facilities by UKBA staff, people acting as agents or contractors of UKBA, other people working in immigration removal centres and members of the Independent Monitoring Boards, with the exception of those excluded by paragraph 14. The Ombudsman's terms of reference thus include contracted out establishments, contracted out services including escorts, and the actions of contractors working in immigration detention accommodation but not employed by UKBA.

Time limits: 20. The Ombudsman will consider complaints for possible investigation if the complainant is dissatisfied with the reply from NOMS or UKBA or receives no final reply within six weeks (or 45 working days in the case of complaints relating to probation matters).

21. Complainants submitting their case to the Ombudsman must do so within three calendar months of receiving a substantive reply from the relevant authority.

22. The Ombudsman will not normally accept complaints where there has been a delay of more than 12 months between the complainant becoming aware of the relevant facts and submitting their case to the Ombudsman, unless the delay has been the fault of the relevant authority and the Ombudsman considers that it is appropriate to do so.

23. Complaints submitted after these deadlines will not normally be considered. However, the Ombudsman has discretion to investigate those where there is good reason for the delay, or where the issues raised are so serious as to override the time factor.

Outcome of the Ombudsman's investigation
24. It will be open to the Ombudsman in the course of a complaint to seek to resolve the matter in whatever way the Ombudsman sees most fit, including by mediation.

25. The Ombudsman will reply in writing to all those whose complaints have been investigated and advise them of any recommendations made. A copy will be sent to the relevant authority.

26. Where a formal report is to be issued on a complaint investigation, the Ombudsman will send a draft to the head of the relevant authority in remit to allow that authority to draw attention to points of factual inaccuracy, and to confidential or sensitive material which it considers ought not to be disclosed, and to allow any identifiable staff subject to criticism an opportunity to make representations. The relevant authority may also use this opportunity to say whether the recommendations are accepted.

27. The Ombudsman may make recommendations to the authorities within remit, the Secretary of State for Justice, the Home Secretary or the Secretary of State for Children, Schools and Families, or to any other body or individual that the Ombudsman considers appropriate given their role, duties and powers.

28. The authorities within remit, the Secretary of State for Justice, the Home Secretary or the Secretary of State for Children, Schools and Families will normally reply within four weeks to recommendations from the Ombudsman. The Ombudsman should be informed of the reasons for any delay. The Ombudsman will advise the complainant of the response to the recommendations.
Fatal incidents:29. The Ombudsman will investigate the circumstances of the deaths of: i) prisoners and trainees (including those in young offender institutions and secure training centres). This includes people temporarily absent from the establishment but still in custody (for example, under escort, at court or in hospital). It generally excludes people who have been permanently released from custody; ii) residents of approved premises (including voluntary residents); iii) residents of immigration reception and removal centres, short term holding centres and persons under managed escort; iv) people in court premises or accommodation who have been sentenced to or remanded in custody.

Clinical issues: 33. The Ombudsman's investigation includes examining the clinical issues relevant to each death in custody – such deaths are regarded by the National Patient Safety Agency (NPSA) as a serious untoward incident (SUI). In the case of deaths in public prisons and immigration facilities, the Ombudsman will ask the local Primary Care Trust (PCT) or, in Wales, the Healthcare Inspectorate Wales (HIW) to review the clinical care provided, including whether referrals to secondary healthcare were made appropriately. Prior to the clinical review, the PCT will inform the NPSA of the SUI. In all other cases (including when healthcare services are commissioned from a private contractor) the Ombudsman will obtain clinical advice as necessary, and may seek to involve the relevant PCT in any investigation. The clinical reviewer will be independent of the prison's healthcare. Where appropriate, the reviewer will conduct joint interviews with the Ombudsman's investigator.