Independent Review of the Response to Deaths in Prison Custody: progress report - follow up

1. Remarks from External Chair

In November 2019, the then Cabinet Secretary for Justice commissioned an independent review into the response to deaths in prison custody. The purpose of the review was to make recommendations for improvement to ensure appropriate and transparent arrangements for the immediate response to deaths in prison custody.

The Independent Review of the Response to Deaths in Prison Custody report was co-authored by HM Chief Inspector of Prisons; the Chief Executive of Families Outside and the Chair of the Scottish Human Rights Commission and was published on 30 November 2021. The review made one key recommendation, 19 other recommendations and six advisory points. All of the recommendations and advisory points were accepted in principle by the Scottish Government.

This progress report aims to provide an update one year on from the publication of the Independent Review of the Response to Deaths in Prison Custody (hereafter referred to as “the Review”). The data available show that deaths in prison are increasing. Last year (2021) saw a significant rise to 53 deaths, compared with 34 in 2020, 37 the year before (2019) and 32 the year before that (2018).

The initial Scottish Government response focused on how to achieve the key recommendation of the Review, namely that a separate independent investigation should be undertaken into each death in prison custody and should be carried out by a body wholly independent of the Scottish Ministers, the Scottish Prison Service or the private prison operator and the NHS.

To that end, the Cabinet Secretary for Justice chaired a roundtable event in February 2022, bringing together all the relevant stakeholders.

From these discussions, it was decided to appoint an external chair (Chair - Terms of Reference) to provide strategic leadership and oversight of the implementation of the recommendations and advisory points contained in the Review. I was appointed to this role in April 2022 on a part time basis, supported by one full time member of Scottish Government staff.

Reading the Review, I was struck by the opening statement of the Executive Summary:

“Two pillars of trauma-informed practice are choice and control. Our Review showed clearly that families bereaved through a death in prison custody have neither.”

The first-hand experiences of family members contained in the Review's "Response from Families" Report, made a powerful and compelling case for change.

I made it a priority to engage with families who had direct experience of losing a loved one through death in prison custody and to ensure their participation in the work to implement the recommendations of the Review. I was fortunate to be able to benefit from the experience and network of Families Outside (a charity that works on behalf of families affected by imprisonment), who helped to establish a Family Reference Group.

The Family Reference Group has met on four occasions: 30 June; 23 August, 20 September and 15 November 2022. Some, but not all, of the group contributed to the original Review. Representatives of two families are bringing experience that has been gained from the death of loved one in prison custody after the Review was published. The accounts of families who have suffered more recent bereavement show the issues highlighted in the Review have not been resolved.

Trust is an issue for all of the families on the Family Reference Group, leading to a desire to be represented on all groups established to take forward the recommendations of the Review.

I spent the first few weeks after my appointment in April 2022 having individual discussions with a range of relevant stakeholders to find out the current position in terms of progress with work to implement the recommendations and advisory points of the Review.

It was clear that the Scottish Government had prioritised the key recommendation and various discussions had taken place leading to the establishment of a Working Group, which had its inaugural meeting in May 2022.

To provide oversight of the work to implement the recommendations and advisory points of the Review, I chair the Deaths in Prison Custody Action Group (DiPCAG). The membership of the group includes a representative of families bereaved by a death in prison custody; Scottish Prison Service; NHS National Prison Care Network; Crown Office Procurator Fiscal Service; Healthcare Improvement Scotland; Police Scotland; Families Outside and Scottish Government.

The DiPCAG (DiPCAG website page) met for the first time on 21 June 2022 and again on 27 September 2022. A high level work plan was produced, which shows the actions required to achieve the vision of a consistent, person-centred, trauma-informed response to all deaths in prison custody.

Formal updates were sought from all the relevant agencies for each meeting and an opportunity was given to provide evidence of further progress before the publication of this report. This progress report contains a summary of the work carried out so far under each of the recommendations and advisory points. This progress report focuses on the changes that have been made since publication of the Review in November 2021.

Whilst it is clear that some effort has been made to make progress, particularly with the key recommendation, I am disappointed to find that one year on from publication of the Review, only three have been completed and one is partially complete.

Family representatives have been involved in the work to oversee progress, and their views and feedback on key processes and documents have been sought increasingly by the Scottish Prison Service and NHS via the Family Reference Group. This is encouraging, albeit belated: there was nothing to stop colleagues engaging and consulting families when the Review was published.

From the updates it is clear that some of the issues are complex and will take longer than one year to resolve. Some will need investment of additional resources. However, others seem to be relatively straightforward and could be achieved at little or no additional cost.

In this vein, I would highlight the following recommendations, which in my opinion should have been completed soon after publication of the Review:

Recommendation 1.3

The Scottish Prison Service should develop a more accessible system, so that where family members have serious concerns about the health or wellbeing of someone in prison, these views are acknowledged, recorded and addressed, with appropriate communication back to the family

Recommendation 1.4

When someone is admitted to prison, the Scottish Prison Service and the NHS should seek permission that where prison or healthcare staff have significant concerns about the health or wellbeing of someone in their care, they are able to contact the next of kin

Recommendation 3.1

The Governor in Charge should be the first point of contact with families (after the police) as soon as possible after a death. A Scottish Prison Service single point of contact other than the Chaplain should maintain close contact thereafter, with pastoral support from a Chaplain still offered

Recommendation 3.3

The family should be given the opportunity to raise questions about the death with the relevant Scottish Prison Service and NHS senior manager and receive responses. This opportunity should be spelled out in the family support booklet

None of the recommendations highlighted above seems to be difficult to achieve. Indeed I am pleased to note that after the draft of this progress report was circulated on 4 November 2022, two Governors’ and Managers’ Action notes were issued: one on 7 November 2022, which addresses Recommendation 3.1, the other on 17 November 2022, which address Recommendation 1.4. In my view these mandatory instructions could have been issued much earlier, however I welcome the fact that they have been issued now.

Many of the recommendations and advisory points require action from the Scottish Prison Service and the NHS. Out of 19 recommendations, 12 are owned jointly by the Scottish Prison Service and the NHS. Four out of six advisory points name both the Scottish Prison Service and the NHS. In April 2022, representatives of the Scottish Prison Service met with NHS colleagues (the National Prison Care Network) to decide which agency would lead on each shared piece of work.

The NHS National Prison Care Network is taking the lead on various actions, including:

Recommendation 2.3

The NHS and Scottish Prison Service should address the scope to reduce unnecessary pressure on the Scottish Ambulance Service when clinical staff with appropriate expertise attending the scene are satisfied that they can pronounce death

The National Prison Care Network governance groups reached an early agreement that the Scottish Government’s Confirmation of Death by Registered Healthcare Professionals Framework should apply in prisons as it does in community settings. All NHS Boards were asked to implement this framework for healthcare staff working in prisons, however delivery of the necessary training met with some challenges. Whilst the National Prison Care Network can encourage all NHS Boards to ensure the training is delivered and the framework implemented, it does not have the power to ensure compliance.

The quality of healthcare for people in prison is an issue for all NHS territorial boards, given that the prison population is made up of citizens from all areas of Scotland, however it has proved difficult to secure active participation from NHS Boards in the work to improve the response to deaths in prison custody. Whilst I have found the National Prison Care Network to be active in the work to achieve the necessary improvements, its success is limited by the need for NHS Chief Executives to prioritise and implement the changes. I have asked for a representative of NHS Chief Executives (territorial health boards) to attend meetings of the Death in Prison Custody Action Group and for a point of contact in each health board, to no avail.

Five of the recommendations and two of the advisory points relate to the Scottish Prison Service’s internal Death in Prison Learning, Audit and Review (DIPLAR). Updates from the Scottish Prison Service rely heavily on the work being carried out by the DIPLAR Review Group, which was only set up in September 2022. Whilst some interim measures were introduced before the Group was established, it is not unreasonable to expect this work to have commenced shortly after the Review was published.

I mentioned that the Scottish Government had prioritised work to advance the key recommendation. A working group with representatives from Scottish Prison Service, NHS, Crown Office and Procurator Fiscal Service (COPFS), Families Outside and the Scottish Government was established that has met monthly since May 2022. I have been impressed by the way in which the key recommendation working group has engaged with families through the Family Reference Group, listening to and acting on their feedback. The group has mapped out the existing processes and sought to identify the gaps a new independent investigation should address.

The terms of reference for the original Review deliberately excluded the role of COPFS and the arrangements for Fatal Accident Inquiries. Similarly, the terms of reference for my role as external chair, explicitly state that it will not impinge on nor undermine the role of the Lord Advocate as independent head of the system for the investigation of sudden or suspicious deaths.

In August 2016, HM Inspectorate of Prosecutions in Scotland carried out a thematic review of Fatal Accident Inquiries and made 12 recommendations. In August 2019, the Inspectorate published a Fatal Accident Inquiries - Follow Up Review which found the lack of progress in many areas was disappointing. In particular, there had been little progress in shortening the timeline for mandatory Fatal Accident Inquiries.

Whilst examining the Fatal Accident Inquiry (FAI) system and the role of COPFS is out with the scope of this work, I have been struck by the extent to which perceived shortcomings in the FAI process feature in discussions about how the response to deaths in prison can be improved. Families feel the length of time FAIs take to conclude is far too long and that communication between COPFS and relatives is inadequate.

Based on the feedback I have received from families and others in the course of my role as external chair, I have formed the opinion that the key recommendation of the Review is aimed at treating the symptoms (time delay and poor communication with families), rather than the problem itself, namely the FAI system.

Arguably the most important recommendations are aimed at understanding causes of deaths in prison and identifying trends with a view to preventing future deaths. Recommendation 1.1 states that leaders of national oversight bodies should work together with families to support the development of a new single framework on preventing deaths in custody. Recommendation 3.4 asks for a comprehensive review into the main causes of all deaths in prison custody.

I was surprised to find that no work had been commenced on either of these recommendations when I brought together the various scrutiny bodies for a meeting in July 2022. An Understanding and Preventing Deaths in Prison Working Group has now been established and has met twice. Comprehensive data on and analysis of deaths in prison custody are essential to this work, however there are significant gaps in publicly available information. The Scottish Prison Service publishes data on its website, including date of admission; date of death; age; gender; ethnic group; legal status, and medical cause of death (from 2019 onwards). There does not appear to be any published analysis of any trends, something I would expect the Scottish Government’s Justice Analytical Services to produce on a regular basis. It is encouraging that Justice Analytical Services has recently (November 2022) agreed to assist the Understanding and Preventing Deaths in Prison Working Group.

The updates in this report include information on “next steps”, and the relevant agencies have been asked repeated to provide timescales for completion. It has been a challenge to inject pace into the work required to make the necessary improvements. I am looking forward to seeing a draft new investigative process developed by the key recommendation working group with input from families, ready to be piloted early in the new year. At the end of January 2023, I hope to see the product of the Scottish Prison Service’s DIPLAR review group’s work, which will address a number of the issues identified by the Review. I also hope to see the NHS accelerate the roll out of confirmation of death training for healthcare professionals working in a prison setting to ease pressure on the Scottish Ambulance Service.

The role of external chair is time limited for a maximum of 18 months (October 2023) and I would anticipate issuing a further update on progress prior to the conclusion of this post.

I am grateful to all those are participating in meetings to take forward the recommendations and advisory points of the Review and who have provided information for this Progress Report. I have been privileged to hear first-hand from families who have been bereaved through a death in prison custody and cannot thank them enough for sharing that painful experience, all with the motivation of preventing similar experiences for other families in the future.

Gill Imery
External Chair
Oversight of implementation of recommendations
Independent Review of Response to Deaths in Prison Custody

November 2022