Independent Review of the Response to Deaths in Prison Custody - Second progress report

1. Remarks from External Chair

This is the second Progress Report to be issued in relation to the implementation of the recommendations and advisory points contained in the Independent Review of the Response to Deaths in Prison Custody (“the Review”), which was published on 30 November 2021.

Sadly there were 40 deaths in prison in 2023, seven of which happened during November 2023. In 2022, there were 44 deaths over the course of the year.

The Review made one key recommendation, 19 other recommendations, and six advisory points, all of which were accepted in principle by the Scottish Government.

I was appointed as external chair in April 2022, tasked with overseeing the implementation of the recommendations and advisory points made by the Review.

My priority was to engage with families who have direct experience of losing a loved one through death in prison custody and, with the help of Families Outside (a charity working on behalf of families affected by imprisonment), I established a Family Reference Group.

The membership of the Family Reference Group has changed over time. Representatives from four more families, bereaved by the loss of a relative after the Review was published, have joined the Group. Some have left due to frustration at the slow pace of progress and finding it too difficult to continue.

Families involved in this work have shared painful experiences in the hope of improving the situation for other families. They want to help improve the understanding of factors leading to deaths in prison custody in order to reduce and prevent more deaths.

The Family Reference Group has met on eight occasions, and representatives from the group have attended the majority of the meetings of the Death in Prison Custody Action Group (DiPCAG), the Key Recommendation Working Group, and the Understanding and Preventing Deaths in Custody Working Group.

On 14 December 2022, I produced the Independent Review of the Response to Deaths in Prison Custody: progress report - follow up (“the Progress Report”) and expressed disappointment about the extent of progress, with only three recommendations completed and another partially complete at that time.

On 18 December 2022, the Cabinet Secretary for Justice and Veterans and the Cabinet Secretary for Health and Social Care sent a joint letter to the SPS Chief Executive and all NHS Chief Executives and Integration Authorities Chief Officers urging them to prioritise the work to implement the recommendations. In recognition of the need for leaders across the justice and health system to work together to improve prison healthcare, it was decided to form a short-life Strategic Leadership Group (SLG).

Despite asking, I have not been invited to speak to the SLG but have had a meeting with the co-chairs.

On 21 December 2022, I had the opportunity to speak about the Progress Report at the national Scottish Prison Service (SPS) Governors in Charge Forum. I expressed my gratitude for the time Governors had given me when I visited four establishments earlier that month and emphasised the importance of having an operational perspective on the various changes being proposed. I repeated my request for one of the Governors to join the DiPCAG to participate in discussions about implementation of the Review’s recommendations.

Following this meeting, a Governor was nominated to attend DiPCAG meetings, however this has only happened once. I have not been invited back to the Governor in Charge Forum and deaths in prison custody is not a standing item on the agenda.

During 2023, work continued to try to address more of the recommendations and advisory points. Formal updates were sought regularly from the relevant agencies.

On 20 September 2023, I gave evidence to the Criminal Justice Committee (Official Report - 20 September 2023) at which time I said that the pace of improvement continued to be slow, with only two more recommendations being completed since the Progress Report was published in December 2022, bring the total to number to five.

On 25 October 2023, I had the opportunity to discuss progress with the Cabinet Secretary for Justice and Home Affairs. On 21 November 2023, I met with both the Cabinet Secretary for Justice and Home Affairs, and the Cabinet Secretary for NHS Recovery, Health and Social Care.

During October and November 2023, I also had various meetings with people responsible for implementing changes operationally, including a representative of the Prison Officers Association (Scotland); the SPS Advisory Board member who acts as the independent chair for Death in Prison Learning, Audit and Review (DIPLAR) meetings; two Governors in Charge; a representative from HM Inspectorate of Prisons for Scotland (HMIPS) and a senior nurse working in prison healthcare.

Based on the most recent updates provided, coupled with the outcome of these meetings, I am now able to say that eight out of 19 recommendations have been completed, with another partially complete. Two of the six advisory points have been addressed. The key recommendation is work in progress.

I have been given assurances that a further three recommendations and another advisory point will have been completed by the end of April 2024. In addition, the work carried out by the National Prison Care Network to develop a Toolkit will address another three recommendations, but these cannot be considered compete until all NHS Boards ensure the Toolkit is implemented.

This report contains a summary of the work carried out so far under each of the recommendations and advisory points. I will make comment on the position with some of the recommendations and advisory points as follows:

Key recommendation

The key recommendation is that “a separate independent investigation should be undertaken into each death in prison and should be carried out by a body wholly independent of Scottish Ministers, the Scottish Prison Service or the private prison operator and the NHS”.

A working group met monthly between May 2022 and August 2023, chaired by the Scottish Government, and including representatives from the Family Reference Group, the SPS, NHS, Crown Office and Procurator Fiscal Service (COPFS), Police Scotland, and HMIPS. Initially the group mapped out the existing processes and sought to identify gaps that a new process would address. There has also been an effort to learn about approaches in other jurisdictions, namely England, Wales, Northern Ireland, and Ireland.

Various workshop exercises have taken place, including with the Family Reference Group, and a pilot of the new investigative process started in September 2023. The first pilot exercise has been completed and is currently being evaluated. A second pilot exercise is planned and the intention is to test the new process for different categories of deaths. When the pilot phase is completed, there will need to be careful evaluation to assess if it actually enhances the current approach.

My own view continues to be that the key recommendation is aimed at treating the symptoms (time delay and poor communication with families), rather than the problem itself, which is the Fatal Accident Inquiry (FAI) process. The terms of reference for the Review and for my role as external chair exclude looking at the COPFS and the arrangements for FAI, however I have found it impossible to ignore criticisms of the FAI process. Families feel the length of time between the death of their loved one and finding any answers at the FAI is far too long and that the communication from COPFS is inadequate and lacks empathy.

The proposed new independent investigative process would be in addition to the current processes. The Lord Advocate retains primacy as the head of the system for the investigation of sudden or suspicious deaths, which includes preparation for the FAI and an assessment of whether there is any criminality. The SPS has its internal process, the DIPLAR and the NHS has its process, the Significant Adverse Event Review (SAER). Prison officers, staff and healthcare professionals contribute to all three of these processes. The introduction of a fourth process seems to me to introduce added complication into a system that is already difficult for families to navigate and potentially more traumatic for everyone involved. In the current financial climate, it seems unrealistic to think that a new agency or body will be established to carry out the proposed new process.

I am not optimistic about the key recommendation being delivered any time soon or indeed at all: the introduction of a new body to carry out the new investigative process seems to me to be highly unlikely.

Recommendation 1.1

“Leaders of national oversight bodies should work together with families to support the development of a new single framework on preventing deaths in custody”.

It has been disappointing that there is has been a lack of ownership and leadership from the scrutiny bodies to take this recommendation forward. In the absence of any enthusiasm, I have chaired the Understanding and Preventing Deaths in Prison working group myself.

It was quickly obvious that data on prison deaths and analysis of trends were essential to achieving this recommendation. Another recommendation (3.4) asks for a comprehensive review into the main causes of all deaths in prison custody.

One positive development was the publication of an initial analytical report on 30 August 2023, Deaths in Prison Custody in Scotland 2012-2022, which used data published by the SPS on deaths in prisons between 2012 and 2022. Of the 350 deaths recorded between 2012 and 2022, the majority (57% or 199) were attributed to disease, illness, and natural causes. Only three homicides were recorded over the whole time period analysed. 29% (103) occurred due to intentional self-harm and 14% (48) were attributed to poisonings (where drugs were mentioned on the death certificate).

As noted in the report, the production of this analysis is the starting point for a series of data and evidence publications that will be produced by the Deaths in Prison Custody Action Group (DiPCAG) in the coming year. Following the successful development of a data sharing agreement, work is now underway with the assistance of National Records Scotland (NRS), which will examine cause of death in custody in greater detail. This will also importantly provide comparisons to trends in the general population accounting for the age distribution. It is anticipated that this work will be completed in early spring 2024. Furthermore, it is also expected that further analysis using the official national prison statistics will also be undertaken in the coming year, which will consider the full custodial journey of individuals who have died in custody including examining in full their whole time spent in prison custody and possible movement across the different establishments.

In my view, analysis of prison deaths should be mainstream work for the Scottish Government in order to enhance the understanding of trends and causes of deaths in prison to inform work to prevent future deaths. This work should include consideration of the recurring and systemic issues identified via the DIPLAR process.

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”.

This is one of the recommendations I identified in December 2022 as not being difficult to achieve, yet it is still not completed. There has been work to install dedicated telephone lines in every establishment however there has been no change to the SPS website. Online is an obvious start point for anyone wanting to highlight concerns, however it is difficult to find anything on the SPS website about what a family member can do if they are concerned about someone in prison.

Recommendation 3.2

“The SPS and NHS should review internal guidance documents, processes, and training to ensure that anyone contacting the family is clear on what they can and should disclose. SPS should work with COPFS to obtain clarity as to what can be disclosed to the family without prejudicing any investigation, taking due account of the need of the family to have their questions about the death answered as soon as possible”.

Whilst this recommendation is not overly resource dependent, I could see that it might take time and did not highlight it in my first Progress Report as one that should be easy to achieve. However, I would not have expected it to still be incomplete after two years. The work the SPS has done to revise the DIPLAR process includes improving communication with families, which makes it all the more important that SPS is confident about what information can be shared. Meaningful communication with families, particularly from COPFS, is something that has been raised repeatedly.

Joint NHS and SPS Recommendations 1.2, 2.1, 2.3, 4.1, 4.2

The NHS National Prison Care Network deserves credit for producing a “Death in Prison Custody NHS Support Toolkit”, which is a comprehensive product covering all the training and support aspects highlighted in the Review. The Toolkit has also been circulated to SPS HQ and SPS College so is available for SPS to use. These are joint recommendations and as such I believe that SPS should be using this product to train and support its staff.

It is vital that all Health Boards use the Death in Prison Custody Support Toolkit to train and support their staff. The National Prison Care Network works hard to achieve improvements across the country and to seek responses from health boards in relation to completion rates for training and implementation of changes.

I have been told that in July 2023 NHS Chief Executives agreed to implement the outstanding NHS recommendations by the end of 2023, however not all Boards have responded to the National Prison Care Network’s request for information and I know some have yet to begin the Confirmation of Death training included in the Toolkit. This illustrates the point that, despite their best efforts, the National Prison Care Network does not have the power to ensure compliance.

At my meeting with the co-chairs of the SLG, I was given assurances that a network of Executive-level leads from all territorial Health Boards had been established to promote prisoner healthcare. I would expect these senior people to ensure the hard work of the National Prison Care Network in producing the Toolkit is followed up by ensuring implementation across the country. The Network has done as much as it can: the NHS recommendations that remain open are for the NHS Boards to address.

DIPLAR recommendations 2.4, 5.1, 5.2, 5.3

Throughout 2023, the SPS has carried out significant work on its DIPLAR process. The DIPLAR Review Group was set up in September 2022, and the revised process was introduced at the end of August 2023.

In terms of recommendation 5.1 (“SPS and NHS should ensure that every family is informed of the DIPLAR and, if applicable, the SAER process, and their involvement is maximised”), I think the SPS revised DIPLAR process and associated guidance does address this point. I am less convinced about the consistency of the NHS position in relation to SAER about the types of deaths in prison custody that result in a SAER and genuine engagement and transparency with families.

I have been impressed by the SPS’s Advisory Board member who chairs the DIPLAR for all deaths in prison, apart from those deaths from natural causes (in one establishment, the Advisory Board member chairs the reviews for these deaths too). This individual has the necessary breadth of experience across health, social care, and prison environments, as well as a warm and engaging personal style. It is difficult to know the extent to which the revised DIPLAR process has contributed to improvements (having only been introduced at the end of August 2023) and how much can be attributed to the professional credibility and personality of one individual.

The recommendation 5.3 states that an independent chair should chair all DIPLAR meetings, providing assurance that all deaths in custody are considered for learning points. This includes deaths by natural causes in prison, which are currently being chaired by the Governor of the establishment where the death happened (apart from one establishment). It seems the SPS has decided it is content with this approach, however it does not meet the recommendation and in my view having the Governor chair the DIPLAR of deaths in his/her own establishment does not create the best conditions for learning.

Some of the advisory points also relate to the DIPLAR process.

Advisory point 3 asks that consideration be given by the SPS and the NHS to whether other people held in prison who knew the deceased may have relevant information and how best to include their reflections in the DIPLAR and SAER processes, in particular whether discrimination of any kind was perceived as a factor in the death. The SPS believes this point has been addressed by the revised DIPLAR template having a section for recording any intelligence that could be relevant. The guidance for completion of the paperwork refers to checking electronic or written records and makes no mention of seeking views from other prisoners who lived with and knew the deceased, nor is there any reference to finding out if discrimination featured as part of the death. I do not agree that the action taken has addressed the issues raised by this advisory point.

Advisory point 4 asks that the SPS and the NHS include a separate section where observed systemic or recurring issues are recorded by the independent chair to ensure holistic improvements to broader systems and processes are more easily recognised and addressed. Staff from SPS Health HQ attend all DIPLARs and support the independent chair in identifying learning and actions.

Given that about half of all deaths in prison are categorised as natural deaths and the independent chair does not chair these (contrary to recommendation 5.3 above), I cannot be confident that a consistent approach is being taken to identifying systemic issues that may have contributed to a death. This is the main reason why I disagree with the practice of Governors chairing reviews into natural deaths that occurred in their own prisons.

That said, I am prepared to accept that this advisory point has been addressed through SPS HQ staff attending all DIPLAR and adding systemic or recurring issues to the national tracker. Crucially the HQ team take follow up action to share the learning across the prison estate. There is a need for scrutiny of the extent to which all establishments act on the learning from DIPLAR.

Advisory point 6 asks that the SPS develop clear protocols for memorial services, letters of condolence, and donations from people held in prison for families of the deceased. The information provided by the SPS emphasises their people-centred approach, where action taken varies depending on the individual circumstances and the wishes of the family. Various examples have been given of good practice in some establishments involving engagement with families, including attending memorial services, visiting the place where their loved one was found, and meeting people who knew the person.

The important point is that every family bereaved by a death in prison should be offered a choice of options for support, regardless of which establishment is involved. There should be a clear written guidance (a protocol) about the options that should be considered, even though each family will make different decisions.

My role as external chair will come to an end shortly but it is vital that the work to implement the recommendations and advisory points of the Review continues. My role did not extend to checking that the various changes have been put into practice nor to assessing their impact. To be sure that improvement has been achieved, there needs to be an ongoing programme of monitoring and inspection by the scrutiny bodies.

In conclusion, whilst the pace of implementation has been slow, there are signs of improvement. I am really grateful to everyone who has attended the various meetings associated with this work and those who have provided updates throughout the year.

I continue to be humbled by the contributions from families who have been bereaved through a death in prison custody, who are committed to using their experiences to help improve the situation for others in the future.

Gill Imery

External Chair

Oversight of implementation of recommendations

Independent Review of Response to Deaths in Prison Custody

January 2024