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The Prisons and Probation Ombudsman

Minutes of the All-Party Penal Affairs Parliamentary Group, held on 19 June 2012 at 5.00 pm in Committee Room 6

The Prisons and Probation Ombudsman: Pursuing fairness and safety in custody in challenging times

Speaker: Nigel Newcomen CBE, The Prisons and Probation Ombudsman for England and Wales

Present:

Paul Goggins MP, in the chair
Lord Bradley
Baroness Howe of Idlicote
Baroness Howells
Baroness Masham
Lord Taylor of Warwick

Paul Goggins MP opened the meeting, by saying what a pleasure it was to welcome the speaker, Nigel Newcomen, who had been in his post for six months. Prior to that, he had been Deputy Chief Inspector of Prisons. The meeting looked forward very much to hearing what he had to say.

Nigel Newcomen began by thanking the group for its kind invitation.  He had been proud to take up this new role last autumn, after nearly nine years as Deputy Chief Inspector of Prisons, and he looked forward to sharing a few thoughts about how he had set about the role, and some of the issues with which he had been grappling.

He continued: ‘What I thought I’d do is begin by outlining my vision for my new office in these rather challenging times; touching on one of the big challenges at the moment which is the tragic rise in deaths in prison custody, immigration detention and probation approved premises. Then I’ll touch on the high volume of complaints from those in custody and on probation; I’ll set out a few words on how I hope my office will rise to these challenge; and finally I will say a few words about the need to maintain and, preferably, reinforce the independence of my office.

So, what of my early ambitions for my tenure in these challenging times? To begin with, I am pleased to have inherited a committed and value driven organisation. To reinforce this, one of my first steps has been to ask my staff to revisit our statement of vision and values. The new vision emphasises our independence and my desire to make a significant contribution to safer, fairer custody and offender supervision. I intend the values to drive my staff’s behaviours – which is why they now include an absolute commitment to equality and diversity, both internally and in the agencies we investigate.

Another change of emphasis has been to place greater focus on identifying lessons from investigations and improving dissemination of that learning, so that services are encouraged to improve. This search for improvement is integral to the new vision: investigation is what we do, but I want my office also to contribute to change. Put simply, if I can help the agencies I investigate to learn the lessons of those investigations, this should help avoid the next complaint by remedying the problem at source and helping to prevent avoidable deaths by contributing to safer custody and safer approved premises.

More pragmatically, in these austere times, I have also had to focus on how to sustain and protect the strengths of my office. Unfortunately, as with all public services, considerable efficiencies are required of me (indeed, my budget will reduce by at least 21% by 2015 and I have already lost around 8% of my staff since 2010-11). Having to seek such efficiencies is a familiar story in these challenging times, but my office’s work is demand led and demand continues to grow. Thus in 2011-12 we saw a substantial and tragic increase in the number of deaths that we were required to investigate - and no let-up in the number of complaints we received.  

Let me say a few words about deaths in custody.  In 2011-12, my office started 229 investigations into deaths in prison custody, immigration detention and probation service approved premises. This is the highest annual figure since the Prison and Probation Ombudsman took on this mournful and onerous responsibility in 2004 - and a 15% rise on the previous year. Indeed, January 2012 saw the highest ever monthly total of deaths in custody (34). Even amongst so many tragedies, one other statistic sticks out: last year saw three apparently self-inflicted child deaths – the first such deaths for 5 years. These are deeply troubling figures.

The majority of deaths we investigated were from natural causes: 142 deaths - a rise of 20 on last year. This continues an upward trend over recent years, no doubt reflecting 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 prison population. In consequence, the past decade has seen deaths from natural causes replace self-inflicted deaths as the principal cause of death in prison custody.

Unfortunately, the number of apparently self-inflicted deaths also rose last year - to 71, 13 more than the year before and a sharp reversal of the downward trend seen in recent years. The rise in apparently self-inflicted deaths is particularly depressing, reflecting as it does the chronic despair of the individuals concerned, but it is also troubling that prisons are now having to care for an increasing number of people who are growing old and dying in their care.

Each death, of whatever cause, is a source of immense sadness to family and friends - and a reason for reflection in our investigations about what more could have been done to prevent an unnecessary death or to provide better care for the dying. Spotting potential trends and seeking to learn lessons is therefore important. One example, where we spotted an apparent recent trend, was the increased number of fatal incidents in 2011-12 in which the deceased was undergoing methadone treatment in custody and may also have been using a combination of drugs, whether licit or illicit.

I raised my concerns about these drug related deaths, which were shared by a number of coroners, with the Chief Executive of the National Offender Management Service.  I am pleased he took the matter seriously and launched his own inquiry. I believe this inquiry was published last week, with a range of actions to address the emerging concerns about methadone related deaths. This is exactly the sort of learning of lessons that I want to encourage and which, I believe, can increase safety in prison.

Moving from deaths to complaints: there has also been no lessening of demand for the other principal part of my remit: the independent investigation of complaints. This is no doubt to be expected, as the number of prisoners continues to rise.  Overall, the total number of complaints this year, at around 5,300, was very similar to last year. However, we started 5% more investigations than in the previous year, so there was a significant rise in substantive casework.

Frustratingly for complainants, and wasteful of my office’s scarce resources, around half the complaints received were ineligible under my terms of reference. This was mainly because the internal complaint process of the services concerned had not been exhausted. This suggests that, 20 years after my office was created, understanding of how and when to access the Ombudsman is still sketchy amongst prisoners. This is something I am seeking to address with a new communications strategy.

With the prison population at an all-time high, there is no reason to suppose that this volume of complaints will do anything other than rise. It is also entirely feasible that, as greater efficiencies are required of prisons and other parts of the system, so further increases in demand will feed through to my office. At its simplest, if regimes and services are trimmed, detainees and those on probation may simply have more to complain about.

So there are many challenges, but I am convinced that my staff will rise to them.  And I am committed to ensuring that the combination of decreasing resources and increasing demand is not allowed to be an excuse for poor service to complainants and bereaved families. My office must strive to improve the quality of its service wherever it can and with whatever resources it has - and I recognise that there is some way to go to deliver the quality of service to which I aspire.  For example, timeliness of investigations, particularly into fatal incidents, needs to improve.

In 2010-11, only 14% of draft reports into self-inflicted deaths and only 16% of those into natural cause deaths were produced within our time targets. There was some improvement in 2011-12, with 22% of drafts into self-inflicted deaths and 24% of drafts into natural cause deaths within target - but there is still a long way to go. Unfortunately, much of this delay is outside my control. In particular, I am obliged by my terms of reference always to have a review by a clinician of the quality of healthcare provided to those who die in custody. These reviews are generally commissioned by Primary Care Trusts but they were late in 86% of cases in 2011-12, and this obviously had an impact on the timeliness of my own reports.

A lot of effort has gone into trying to encourage better quality and timeliness of clinical reviews. But, ultimately, this responsibility rests with the NHS and, inevitably given everything else going on in the health service, the issue is a low priority. Although I am hopeful that new national commissioning arrangements for offender health from April 2013 may offer an opportunity to address the matter. Meanwhile, I and my staff will redouble our efforts to improve performance in fatal incident investigations, as delays hinder bereaved families gaining a measure of closure from our investigations and add to the already excessive delays in the inquest system.

Looking inwards for a moment, you can see that the inevitable message to my staff is that we have no choice but to deliver more for less and with fewer staff. Already I have put in place a range of internal reforms, including work to create the type of organisation I need, and can afford, work to re-engineer casework processes and efforts to introduce greater proportionality into our investigations – although, as I will explain, this proportionality must always be tempered by the need for justice and care for bereaved families.

So what do I mean by proportionality? Well, with complaints it means targeting our resources more effectively. I need to ensure we do a first class job in our most serious cases - for example complaints about assaults by staff or about bullying or racism – in other words, cases where there may be most to put right and potentially most to learn.  One size of investigation does not fit all. Some simple cases can be dealt with briskly and some mediated between the complainant and the authority. But I will have to decline to investigate complaints where no worthwhile outcome can be achieved or no substantial issue is at stake.  For example, we recently received a complaint from a prisoner that his prison had temporarily run out of shower gel and he regarded the offer of soap as an alternative as unsatisfactory. I declined to investigate the matter further.

We will also ensure that we respond proportionately to prolific complainants, so that resources are spread as equitably as possible (in fact, I was surprised to learn that 37 complainants made 20% of all the complaints investigated last year). However, in making any changes, fairness and protection of complainants will remain my touchstone: prisoners have very little and small things can mean a lot. Indeed, as I learned very clearly in the Inspectorate of Prisons, the adding together of small indignities is a very real way in which degrading treatment can manifest itself.

I am also introducing greater proportionality into fatal incident investigations, at least in cases where there are likely to be fewer lessons to be learned. This is clearly delicate, but some deaths from natural causes are reasonably foreseeable and greater standardisation, brevity and expedition may be appropriate. This focus on proportionality will enable me to redirect resources to where our findings can have most impact and offer most learning, for example to enable me - as I recently needed to do - to allocate significant numbers of  senior staff to investigate the appalling spate of apparently self-inflicted deaths amongst children.   But, again, any changes I make will be sensitive to the needs of bereaved families whose interests must remain central to my investigations.

I would add, that there has been a suggestion that, given scarce resources, I should stop investigating deaths from natural causes altogether. I do not agree: firstly, because Article 2 of the European Convention on Human Rights requires the independent investigation of all deaths in state custody. And, secondly, because I believe there is a lot to learn – and improve – about the care of the increasing numbers of prisoners who die of natural causes in custody. My investigations have an important part to play in this.  For example, I have been disappointed that, in a number of recent natural cause cases, I have had to criticise the inappropriate use of restraints on some very elderly and infirm prisoners attending hospital. Prisons are not always getting the balance right between security and humanity in these cases and my investigations will continue to review whether prisoners have been allowed to die with dignity.

Finally, on this whistle-stop tour of my early months in post, let me turn to the key issue of independence. I hope that my lengthy time in the Inspectorate of Prisons has eased my transition into the role of Prisons and Probation Ombudsman. There is much that is similar between the two offices: both are robustly independent and, I believe, respected bodies which report without fear or favour.
As a result, they are both able to carry out crucial work to support fairness and safety in the criminal justice system, and offer a means to reassure the public about the appropriateness of what happens in custody in their name.  

However, there are differences, not least constitutional. Thus the Chief Inspector is a Crown appointment and a creature of statute. My role is not on a statutory footing, although I was recruited in line with the public appointment process, confirmed by the Justice Select Committee and have written guarantees of operational independence. I also do not have the legally enforceable powers of access or interview of some equivalent bodies – although I must add that there has never yet been any obstruction to my investigations, but there is no guarantee this will always remain the case.  It has been argued that this lack of a statutory basis weakens the visible independence of my office and I agree. Indeed, the Justice Select Committee, when endorsing my appointment, called on the Government to “proceed to put the Ombudsman on a statutory basis at an early opportunity”.  I am pleased that the Secretary of State for Justice has confirmed to me that the Government remains sympathetic to finding a legislative slot - although none has yet been found. Meanwhile, I will continue to ensure that my office remains robustly independent of the services I investigate and the departments responsible for them.  Anything less would be to diminish the role.

In conclusion, can I say that I am grateful to have been given this opportunity to set out my early ambitions and some of the challenges facing my office.  I am convinced my staff and I have an important role to play in pursuing fairness and safety in prison, immigration detention and probation.   And I hope there is no doubt about my commitment to robustly and independently pursue this responsibility, even in this particularly challenging time’.

Paul Goggins MP thanked the speaker very much for his presentation.