Risdon Prison Hospital & Forensic Mental Health Services

REPORT ON AN INQUIRY INTO RISDON PRISON

Volume 1

June 2001

1 Office of the Ombudsman

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ISBN 0-7246-8008-X (Set) ISBN 0-7246-8006-3 (Volume 1)

2 FOREWORD

The investigation into the Risdon Prison Hospital and the Risdon Prison Complex represents probably the most major investigations ever undertaken by a Tasmanian Ombudsman. I believe that the reports speak for themselves in respect of the independence of the investigative process, the depth of analysis and the comprehensiveness of the background research undertaken.

The investigation was initiated as an own motion inquiry by the then Ombudsman following discussions with the Minister for Justice, Hon Dr Peter Patmore, in response to a number of tragic inmate deaths and a series of adverse incidents, including escapes and riot situations.

Managing a prison is no easy task. Prisons are like no other institutions and prisoners form a highly volatile, vulnerable and atypical society. Prison authorities at Risdon and elsewhere bear a degree of responsibility that goes well beyond what is required of most authorities, public or private, in meeting this duty of care. In addition to a duty of care to prison employees and to the community at large, which expects to be protected from criminals, there is a special duty of care owed to a group of people who are deprived of many personal liberties by virtue of incarceration and who have special physical, mental, emotional and social needs, which frequently differ from those of society as a whole.

The rules which govern such a complex structure must strike the right balance between security and containment on the one hand and rehabilitation and restitution of inmates’ self esteem on the other, and that balance is not easily attained. A number of the problems uncovered in the investigation, particularly in the Prison Hospital, stemmed from an imbalance in which security concerns were given greater weight than prisoner rehabilitation. The most glaring example of this was that the medical staff in the Prison Hospital reported to the Department of Health and Human Services, but the nursing staff reported to the Department of Justice and Industrial Relations. This anomalous situation, which was identified in a Coroner’s report as well as ours , has now been rectified and nursing staff are to be transferred to the Department of Health and Human Services.

No prison is a pleasant place, but the Risdon Prison is a particularly unpleasant place. It is bleak, cold and grey and, even if a very large amount of money were to be spent on the facility, it is unlikely that it could ever conform to contemporary prison standards. The buildings reflect years of relative neglect by successive governments and even when it was built, forty years ago, the Prison would have been out of date and totally inappropriate in its design for the rigours of a Tasmanian winter. Moreover, it was built as a Maximum Security Prison and remains so, even though the demand has never been for a full maximum security facility. When additional stresses, such as an unexpected surge in prisoner numbers or a significant change in the nature of the prisoner population occur, as has happened at Risdon, there is an inevitable strain on resources and management. Staff morale drops, inmate unrest and dissatisfaction escalate and the system begins to crack. This is what had happened at Risdon, and had been happening for a significant period of time prior to the investigation.

The period of active investigation took place between September 1999 and May 2000. Because the Coroner was conducting a separate inquiry into the deaths in custody, it was agreed not to release the Ombudsman reports until the Coroner had released her report, which she did on 26 March 2001. There is a high degree of consistency between the two independent reports.

Another factor which influenced timing of the release of the Ombudsman reports has been the rapid developments that have occurred since active investigation ceased in May 2000. Since that time both Departments have taken action to remedy and improve many aspects of the administration and management of the Risdon Prison, Risdon Prison Hospital and “special institution”. The most major of these is the Government’s decision to build a new prison on the Risdon site, which is due for completion in 2008, and to build a separate, secure mental health facility for those who have a mental disorder and are detained under a restriction order.

While the main focus of the reports is on the situation as it was at the time of active investigation, in fairness to the two Departments and because the public should know what is happening in terms of prison reform, whenever possible changes that have occurred since May 2000 have also been incorporated. While this could be seen as 3 diluting the unalloyed impact of the investigation findings, I am frankly more interested in ensuring that strategies for improvement are put in place rather than in simply finding fault for past events.

Irrespective of the dreadful events which may have precipitated them, the present Government is to be commended on the many initiatives it has taken in relation to prison reform, particularly the decision to build a new prison. It is a matter for great regret that these much needed reforms come too late for five young men.

Framing the recommendations was a difficult task, as these too were overtaken by the developments in prison reform. A number of the recommendations included in early drafts of the reports have already been implemented, and are now redundant. Some recommendations will become redundant once the new prison is built, but many cannot wait that long. Consequently, they have been recommended for urgent implementation, even though it might well be argued that to do so would be a waste of resources. In our view, it is not. One such example relates to the installation of sensor devices on the existing perimeter fence. This is seen as essential to enhance security at the Prison, even though it is a relatively short term measure. Another is to continue to upgrade facilities to remove suspension points and to take other actions to better address the risk of suicide and self harm.

The primary objective has been to make recommendations that are realistic in a resource sense, but still meet the needs identified in the investigations. There has been considerable discussion with the two Departments to establish the feasibility of some recommendations and, as at the date of publication, many of the recommendations have already been accepted in principle. Others are still under consideration or are in dispute and will be the subject of further negotiation once the Government has had an opportunity to consider them.

There is one further point I wish to make. The investigation has been substantially funded from the Ombudsman’s existing budget allocation and has required two senior staff to be taken off line for a significant time. Even the most superficial comparison with the cost of other, comparable Commissions of Inquiry will indicate the strain that this has placed on my staff resources. Undertaking major inquiries of this nature is an important function of the Ombudsman’s Office and is consistent with the Ombudsman’s statutory obligations, but in future there must be due recognition of the cost.

Finally, I wish to acknowledge the many people who have worked on the two reports. Robyn Hopcroft, David Fleming and Tony Priest have been the three main investigators. Ms Hopcroft has been responsible for writing the Prison Hospital report and David Fleming and Tony Priest prepared the report on the Risdon Prison Complex. Valuable assistance has been provided by my executive assistant, Karen Adams, and of course Damon Thomas, who initiated and oversighted the investigation until his resignation as Ombudsman in October 2000.

Janine O’Grady Ombudsman (Acting)

21 June 2001

4 Table of Contents 1. INTRODUCTION...... 7

2. THE INVESTIGATION...... 10

3. THE LEGISLATIVE FRAMEWORK AND THE DUTY OF CARE...... 13 3.1 INTERNATIONAL LAW ...... 13 3.2 NATIONAL GUIDELINES ...... 13 3.3 STATE LEGISLATION...... 14 3.4 THE COMMON LAW DUTY OF CARE ...... 15 3.5 THE ISSUES...... 16 3.6 PERFORMANCE MEASURES...... 17 4. THE PRISON POPULATION ...... 20 4.1 JUVENILE OFFENDERS ...... 24 4.2 ALCOHOL AND DRUGS...... 25 4.3 INTELLECTUAL DISABILITIES ...... 25 4.4 MENTAL ILLNESS ...... 26 4.5 SEVERE PERSONALITY DISORDERS...... 26 4.6 FEMALE PRISONERS...... 27 5. THE RISDON PRISON HEALTH SERVICE ...... 29 5.1 PLANNING AND COORDINATING THE PRISON HEALTH SERVICES...... 29 5.2 THE DIRECTOR OF NURSING ...... 32 5.3 INMATE HEALTH SURVEY ...... 32 5.4 RESOURCES...... 33 5.5 SUMMARY...... 33 6. THE RISDON PRISON HOSPITAL...... 35 6.1 THE ROLE OF THE NURSES ...... 35 6.2 THE NURSING ORGANISATIONAL STRUCTURE...... 36 6.3 STAFF DEVELOPMENT...... 40 6.4 DISPENSING OF MEDICATION ...... 42 6.5 OCCUPATIONAL HEALTH AND SAFETY ISSUES ...... 46 6.6 REHABILITATION AND QUALITY OF CARE ...... 47 6.7 SUMMARY...... 53 7. THE RISDON PRISON MEDICAL SERVICE ...... 57 7.1 THE ROLE OF THE PRISON MEDICAL OFFICER ...... 57 7.2 SUMMARY...... 60 8. FORENSIC MENTAL HEALTH SERVICES ...... 62 8.1 PERSPECTIVE ON FORENSIC MENTAL HEALTH SERVICES...... 62 8.2 FMHS IN TASMANIA...... 67 8.3 CHANGES INITIATED BY THE DIRECTOR OF FMHS ...... 68 8.4 CHANGES APPROVED BY SENIOR EXECUTIVES...... 84 8.5 SUMMARY...... 88 9. THE RESPONSIBILITY OF MANAGEMENT ...... 92 9.1 THE DUTY OF CARE...... 92 9.2 BREACH OF THE DUTY OF CARE ...... 95 5 9.3 TO WHAT EXTENT IS RESPONSIBILITY DELEGATED? ...... 96 9.4 THE UK ASHWORTH SPECIAL HOSPITAL INQUIRY ...... 97 9.5 CLINICAL GOVERNANCE AND QUALITY IMPROVEMENT...... 97 9.6 OFFICIAL VISITORS ...... 98 9.7 THE APPOINTMENT OF DR JAGER...... 99 9.8 THE PROFESSIONAL AUTONOMY OF SPECIALIST CLINICIANS...... 99 9.9 THE REPORTING STRUCTURE ...... 101 9.10 THE DEGREE OF CONTROL EXERCISED BY MANAGEMENT ...... 102 10. THE MANAGEMENT OF PERSONALITY DISORDERS...... 104 10.1 NON MEDICAL HOSPITAL ADMISSIONS ...... 104 10.2 IMPROVED ADMISSION PROCEDURES ...... 104 10.3 THE HOSPITAL ADMISSIONS STATISTICS...... 105 10.4 TRAINING IN BEHAVIOUR MANAGEMENT ...... 107 10.5 A PERSONALITY DISORDERS UNIT WITHIN THE HOSPITAL ...... 107 10.6 PERSONALITY DISORDER UNITS WITHIN SPECIAL HOSPITALS (UK) ...... 108 10.7 A SEPARATE UNIT WITHIN THE PRISON SYSTEM - THE UK EXPERIENCE ...... 109 10.8 THE REQUIREMENTS OF A PERSONALITY DISORDER UNIT AT RISDON ...... 110 10.9 SUMMARY...... 111 11. THE MANAGEMENT OF SUICIDE AND SELF-HARM IN PRISONS...... 113 11.1 IDENTIFYING THE UNDERLYING CAUSES OF SELF HARM ...... 114 11.2 RISK MANAGEMENT ...... 118 11.3 ‘N’ DIVISION, SOLITARY CONFINEMENT, PROTECTION AND PUNISHMENT ...... 127 11.4 SUMMARY...... 133 12. CONCLUSIONS ...... 136

13. RECOMMENDATIONS ...... 141 13.1 TIME FRAME FOR RECOMMENDATIONS ...... 153 14. ABBREVIATIONS ...... 154

15. REFERENCES...... 155 15.1 LEGISLATION...... 157 16. ENDNOTES ...... 158

6 1. INTRODUCTION

On 20th September 1999 pursuant to s.13 of the Ombudsman Act 1978, an own motion investigation commenced into the administration of Her Majesty’s Prison at Risdon, and the ‘special institution’ under s.6A of the Mental Health Act 1963 commonly known as the Risdon Prison Hospital. The term “special facility” as defined in s.6(s) of the Criminal Justice (Mental Impairment) Act 1999,or “special institution” is used throughout the report to describe that part of the Risdon Prison accommodating forensic mental health patients.

Certain events precipitated this inquiry including a significant increase in the rate of deaths in custody. At the date the investigation commence there had been four patients who had died in the Risdon Prison Hospital. These were Timothy Andrew HAYES, Christopher William DOUGLAS, Thomas Patrick HOLMES and Jack NEWMAN.1 After the inquiry commenced there were two further deaths, that of Laurence SANTOS in the “special institution” and. Fabian Guy LONG who died on the 10th of January 2000 in the main prison. Fabian Long was undergoing a custodial sentence but Forensic Mental Health Services (FMHS) had been involved in his care and management. The other five persons who died had a forensic mental health history. For this reason the main focus of this report has been on the Risdon Prison Hospital as a special institution. A separate report has been prepared on aspects of administration in the main prison, with particular emphasis on those aspects directly related to the Prison Hospital.

Notifications pursuant to s.23(1)(a) and (b) of the Ombudsman Act 1978 were given to the Attorney-General and the Secretary of the Department of Justice and Industrial Relations (DJIR) and to the Minister for Health and Human Services and the Secretary of the Department of Health and Human Services (DHHS). The Secretary of the DJIR is Mr Richard Bingham and the Secretary of the DHHS is Mr John Ramsay. Mr Bingham also became Director of Corrective Services in May 2000, following the resignation of Mr Denbigh Richards. The FMHS is part of Mental Health Services within Community and Rural Health (DHHS) and provides services to the Risdon Prison Hospital, “special institution” and Corrective Services. When the investigation commenced in September 1999 the FMHS Director was Dr Alan Jager. The service is within the jurisdiction and administrative responsibility of the Minister for Health and DHHS however the Director of FMHS had also been appointed by the Attorney General as the “responsible medical officer” for the purposes of the Criminal Justice (Mental Impairment) Act 1999 and thus the responsibility fell within the responsibility of both Ministers. Dr John Beadle was the Visiting Medical Officer (VMO) responsible for medical services provided to the Prison Hospital and Corrective Services.2 Nursing and other health services were provided by or contracted to the DJIR. The then Director of Nursing (DON), Mr Paul de Bomford, was employed by the DJIR and reported directly to the Director of Prisons. Nursing staff, including the two Clinical Nurse Consultants (CNC Medical and CNC Psychiatry), were also employees of the DJIR.

At the time of the investigation, there was no clear, professional line of reporting or established system for clinical governance. In some instances the role delineation regarding health services to prisoners between the respective Departments and services was unclear. Prison Health Services, including drug and alcohol services, are generally provided under contract to the DJIR and coordinated by the DON.

The Risdon Prison is a maximum security facility. The Risdon Prison Hospital (RPH) is a separate building within the perimeters of the Prison and provides inpatient and outpatient services to prisoners. It is not a hospital under the Hospitals Act 1918 though it does have a status as a “special institution” or “special facility” detaining persons under a restriction order who have been 7 found “not guilty by reason of insanity” or “unfit to plead”. The RPH could perhaps best be described as an infirmary which is part of the Risdon Prison complex.

I examined the administrative arrangements and organisational structure to ascertain whether, at that date, each Department was providing appropriate care, management and treatment of persons in custody, having regard to the custodial requirements of a prison and the security requirements of a special institution. The investigation commenced in September 1999 and had substantially concluded by March 2000. However, after considering our respective jurisdictions, I accepted the suggestion of the Chief Magistrate that the Ombudman’s report would not be made public until after the Coroner had reported.3 A draft report with preliminary conclusions and recommendations was however provided to DJIR and DHHS in about March 2000and the consultant’s reports were provided to DHHS in January 2000.

Prior to the initiation of this investigation, Corrective Services and the Risdon Prison had been the subject of an on-going investigation by my Office. In May 1999, an investigation was completed into an incident at the Prison, and into the deployment of the Special Operations Group to the Hobart Magistrates Court in the Hobart Remand Centre (HRC). The implementation of these recommendations was being monitored when the most recent deaths in custody occurred. Both my earlier investigation and this inquiry are in addition to numerous individual complaints which emanate from the Prison each year on operational matters such as transfers, classifications, property, food, visits and discipline.

In undertaking this investigation I clearly differentiated my task from that of the Coroner conducting an inquiry into the cause of death under the Coroners Act 1995. The Coroner and I each have our respective statutory jurisdictions and the authority to make recommendations aimed at preventing or minimising the recurrence of matters identified as being of concern within our respective jurisdictions.4 Under s.21(1) of the Coroners Act 1995, a coroner has jurisdiction to investigate a death if it appears to the coroner that the death is, or may be, a reportable death.5 This includes the death of a "person held in care" which includes a person detained or liable to be detained under the Mental Health Act 1963 in a hospital within the meaning of that Act, or the death of a person who immediately before death was a person held in custody. Under the Ombudsman Act 1978, the Ombudsman has jurisdiction to investigate the administrative actions of government departments and other prescribed public authorities and, should the Ombudsman conclude that there has been defective administration, then there is a statutory responsibility to report or make recommendations which are designed to remedy the situation.

The circumstances surrounding the act of suicide or a death from unnatural causes were matters for the Coroner to determine. The circumstances which may motivate a person to suicide or self harm may arise from inadequacies in the care, treatment and management of that person’s mental health and well being within the prison system are within the Ombudsman’s jurisdiction. If the management of the custodial environment and the standard of care or health services are inadequate to a degree that DJIR or DHHS could be said to have failed their duty of care to those persons, then this would clearly constitute defective administration. Similarly if the standard of care falls below and a recognised or accepted standard of care, then this to constitutes defective administration within the meaning of the Ombudsman Act.

What needs to be borne in mind is that this investigation began in September 1999 and focused on events in the RPH as they existed in 1999. There has been significant work undertaken by both Departments in the intervening period which has both been a response to the deaths in custody, and to the deficiencies identified by the Coronial inquiry and the Ombudsman investigation. Where appropriate these actions are referred to and acknowledged. 8 It is recognised that both the DJIR and DHHS, in light of the events that have occurred and in consideration of the draft reports provided to them, have taken action to remedy and improve aspects of the administration of the Risdon Prison, the Prison Hospital and “special institution”. Of significance is the response to a recommendation that, on about 1 July 2001, the management of the Prison Hospital and other correctional health services will transfer from DJIR to DHHS. This is in line with the conclusion reached that the RPH and special institution did not provide a therapeutic environment for the mentally ill or others requiring health care. Other recommendations made in this report, as at the date of publication, have either been accepted in principle, are under consideration or still require implementation. Many I regard as urgent and requiring immediate attention but, given the systemic nature of the deficiencies identified at the RPH and special institution, I accept that these reforms are of necessity comprehensive and go to virtually every aspect of what constitutes an appropriate custodial environment and a proper standard of care. While I am satisfied with the progress as at the date of publication, the implementation of these reforms will need to be monitored.

9 2. THE INVESTIGATION

Issues relating to the detention, care, management and security of persons in custody or detained under the Criminal Justice (Mental Impairment) Act 1999, are matters of public interest and are of concern to the persons detained, their families, their custodians and those providing treatment, health care and other support services. For this reason all Health and Corrective Services personnel engaged in the Risdon Prison complex, Risdon Prison Hospital and “special institution”, as well as persons in custody and the general public were invited to make submissions and recommendations which might assist my investigation.6

Dr Ken O'Brien, Director, FMHS in South Australia, was engaged as a consultant in relation to forensic health issues, and Associate Professor Gerry Farrell, University of Tasmania, Tasmanian School of Nursing, was engaged with regard to some aspects of nursing practice at the Risdon Prison Hospital and “special institution”.7 Both consultants were engaged as a result of an initiative by DHHS requesting an independent clinical review or clinical audit in relation to Dr Jager. During the course of the inquiry the Risdon Prison Hospital was reviewed and Dr Tony Falconer, Consultant Health and Medical Services in Queensland, was engaged as an independent consultant. These reports8 were provided to the DHHS and to those who were the subject of the reports. In early 2000 the draft Ombudsman’s report was provided to the DJIR and DHHS. Mr Peter Tree provided a legal opinion in relation to the duty of care. A “Hospital Admissions Statistics” database9 was developed for all Prison Hospital admissions during 1999. The purpose of the database was so that an analysis could be undertaken of forensic mental health patients and those admitted during this period in order to better assess service requirements. Recommendations from an internal DJIR report by Ms Coral Muskett following the death of Timothy Hayes, were incorporated in the Ombudsman report as were principles embodied in the Correctional Justice Reform Alliance publication.

The conclusions reached by the consultants were consistent with my own independent inquiry and I have adopted and endorsed a number of their recommendations. I have had the benefit of reading the Coroner’s report and consider that the conclusions arrived at independently in the Ombudsman’s inquiry are consistent with the Coroner’s findings. This is particularly relevant in relation to matters relating to the duty of care.

Ms Robyn Hopcroft has had carriage of the investigation into the Risdon Prison Hospital, undertook the research and drafted this report. Mr Dave Fleming assisted with the investigation, Ms Sarah Forward with the compilation of statistical data and Ms Bridget Hiller with the development of the “Hospital Admissions” database. Mr Damon Thomas, the former Ombudsman oversighted the investigation. I also wish to put on record my appreciation for the assistance provided by those who made submissions, including inmates and former inmates and their families. The investigation commenced in September 1999 and draft recommendations made to DHHS and DJIR in early 2000. The publication of this report was deferred pending the handing down of the Coroner’s report which occurred on the 26th of March 2001. The publication of this report was further deferred to both take into account representations in relation to adverse comments, as required by s.23(6) and (7) of the Ombudsman Act 1978, and to enter into discussion with DHHS and DJIR as to their response to the recommendations and matters relating to the implementation of recommendations.

As a bench mark for assessing standards for those detained, I have accepted the rights of prisoners and detainees as defined in s.29(1) of the Corrections Act 1997, in conjunction with other international instruments, as providing a reasonable legislative recognition of appropriate rights for 10 persons in detention. The standards governing involuntary patients suffering from a mental illness are set out in the Mental Health Act 1996, and in conjunction with various other national and international instruments and guidelines define appropriate standards of care and detention, for those who are detained.10 I have accepted those standards as applicable to persons found to be unfit to stand trial, or not guilty by reason of insanity, who are detained pursuant to a restriction order under the Criminal Justice (Mental Impairment) Act 1999.

The principles and standards adopted to ascertain whether the forensic mental health, medical and prison health services, and the Prison Hospital and “special facility” met the requisite standard to discharge the agencies’ duty of care include the following: · International covenants and conventions to which Australia is a signatory; · State legislation governing those detained in custody, the mentally ill and health practitioners; · The common law duty of care; · The “Standard Guidelines for Corrections in Australia”, and other national documents such as the AMA Policy Resolutions and Position Statement [2000] and the Australian Council of Health Care Standards (EQuIP).

The investigation was also informed by: · Reports of inquiries including the Royal Commission into Aboriginal Deaths in Custody, (RCIADIC); Australian Institute of Criminology articles, the Report of the National Inquiry into the Human Rights of People with Mental Illness, the Western Australian Ombudsman Report on an Investigation into Deaths in Prisons, the Victorian Correctional Services Task Force “Review of Suicide and Self Harm in Victorian Prison”, the Findings - Deaths in Custody Inquest 11 and various reports and research into custodial and psychiatric institutions including UK Home Office Report of the Committee of Inquiry into the Ashworth Special Hospital (May 2000); · Policy documents such as “Towards a National Approach to Forensic Mental Health” [Cth.] and the Tasmanian 1995 Forensic and Secure Psychiatric Services Review report; the 1977 revision of this report and the 1998 “FMHS Interim Policy Paper.” · The evidence of those interviewed and making submissions, and references as to what constitutes an appropriate standard of care and the resources and facilities needed to attain that standard, was invaluable.

The reference material considered is set out in the attached appendices.12 A considerable body of work has been undertaken into the issue of deaths in custody, particularly by the Royal Commission into Aboriginal Deaths in Custody, and the Australian Institute of Criminology. The Commonwealth and various State governments implemented many of the recommendations of the Royal Commission and more recently the Report on Government Services 2001 has developed key performance indicators to evaluate services, including Corrective Services, across all jurisdictions. There has been significant research undertaken in the area of corrections, prison privatisation, penal reforms and suicides in custody. This information has been invaluable in providing an insight into the context in which deaths in custody occur, the principles of accountability, the duty of care, the responsibility of management, the issues, systems and factors which may impact on prison administration and the incidence of deaths in custody. The Western Australian Ombudsman Report on an Investigation into Deaths in Prisons13 was published at the completion of my investigation and mirrored many issues in this jurisdiction. The report covered the health services and the strategies needed for the better protection of those “at risk” in a prison context.

The Tasmania Legislative Council Select Committee Report "Correctional Services and Sentencing in Tasmania" (1999)14 and the 1993 report by the Hon F M Neasey "Report of an 11 Inquiry into the System of Classification of Prisoners in Tasmania and other related matters" also provided valuable information and obviated the need for me to revisit areas which had previously been examined.15. Mr Neasey in his report16 identified design defects as did the Grubb Report of the Commission of Inquiry 1976. I accept that there are aspects of the physical environment that are detrimental to the better management of prisoners and detainees and would extend these criticisms of design defects to the physical layout and facilities at the Risdon Prison Hospital.

The Legislative Council Report examined the perceived benefits of contracting out with regard to the design, control and management of prisons,17 and the comparative cost effectiveness of such an approach. This has been further developed by the DJIR in the Prison Infrastructure Redevelopment Project Report. The work of Professor Richard W Harding "Private Prisons and Public Accountability" 199718 was also instructive as is the inquiry into the Port Phillip deaths in custody. I would simply comment that neither privatisation nor a new prison is necessarily a panacea for the failures that are apparent in the present system.

Some consideration was given to the adequacy of prison programs, industries, the case management system, rehabilitation and support services and whether these are adequate to enable the proper management of all inmates.19 In the main these issues are confined to their relevance to the Prison Hospital, in that the management of the custodial environment affects all those within it, impacts on the Prison Hospital and in many instances generates a demand for care, protection, support or a health service which may not have arisen had the custodial environment been better managed.

The case management and information management system appeared seriously deficient in that it failed to facilitate effective communication between professional services within and external to the Prison or between the inmate and service providers. The system did not provide an effective conduit for the family and personal contacts to have effective communication either with the inmate or with staff responsible for the care and management of the inmate. No detailed investigation was taken into this aspect of prison and hospital management, but a number of submissions illustrated the deficiencies in this area. A case management audit has been recommended to examine this issue but given the acknowledged deficiencies the better approach might be to put the resources into introducing an effective case management system with a single platform and state wide database to better support DJIR’s management of those in custody and to better inform all relevant service providers, including health and FMHS. The consultants also refer to the lack of individual care plans for forensic mental health patients and inmates detained in the Prison Hospital. Part of this, and particularly the procedures for the management of suicide and self harm, is in the process of being addressed by the respective Departments.

12 3. THE LEGISLATIVE FRAMEWORK AND THE DUTY OF CARE

3.1 INTERNATIONAL LAW

In considering issues of administration at the Prison Hospital one needs to have regard to the prevailing legal obligations and standards and to assess the Risdon Prison Hospital against these standards. In addition to rights and responsibilities prescribed by statute, there are obligations set out in treaties and other international instruments to which Australia is a signatory.

Australia has recognised and is bound to observe internationally recognised human rights and standards set out in the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations Resolution on the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991). Mentally ill people in the criminal justice system have rights prescribed in international instruments such as The Principles for the Protection of Persons with Mental Illness which apply to prisoners. Principle 20 stipulates that persons who are mentally ill are entitled to the best available mental health care "with only such limited modifications and exceptions as are necessary in the circumstances".

Several international instruments deal directly with the rights and standards of treatment of persons held in custody. The World Health Organisation, May 1998 Declaration, reaffirmed the Member States’ commitment to the principle that “one of the fundamental rights of every human being” is the right to the enjoyment of the highest attainable standard of health. Other standards adopted by the UN General Assembly, such as the Standard Minimum Rules for the Treatment of Prisoners, do not give rise to binding obligations on Australia, but represent minimum conditions regarded as acceptable by the United Nations (UN) and cover areas such as the classification of prisoners, accommodation, personal hygiene, food, exercise, sport, medical services, discipline procedures and punishment, complaints systems, visits, education, employment and religion.

3.2 NATIONAL GUIDELINES

National standards are generally based on internationally recognised rights and standards governing the care of those detained in custody or psychiatric facilities. The Standard Guidelines for Corrections in Australia 1996 incorporates the principles and standards set out in the UN Standard Minimum Rules, but also set standards for community based corrections and provides guidance on the standards for the treatment of inmates who are mentally ill. There is a parity and common ethos between the United Nations Rules and the Australian Guidelines, some of which reflect the situational stress inherent in incarceration and are relevant to issues pertinent to suicide and self harm.20 These Standard Guidelines for Corrections in Australia state that specialised facilities should be available for the observation and treatment of people with mental illness, and that arrangements should be made to transfer people with a mental illness to "appropriate establishments" as soon as possible.

The Guidelines cover the type of health services provided, the responsibilities of the prison medical officer, the treatment of infectious diseases, prisoners isolated for health reasons, dental health, private health treatment, cell alarms, the prohibition of medical and scientific experimentation, the ability to maintain contact with medical services providing treatment prior to imprisonment where appropriate, inspection of food, hygiene, sanitation, clothing and bedding, the provision of

13 psychiatric services and specialised facilities for prisoners with mental illness or intellectual disability and the organisation of the continuation of psychiatric treatment after release.

The Report of the National Inquiry into the Human Rights of People with Mental Illness 21 considered that prisoners who become mentally ill should be treated in the health care system, and not in the prison hospital. Whether a person who has been found not guilty of a crime by reason of insanity should be detained in a facility which is under a prison regime and not in a secure dedicated psychiatric facility, is an issue for this inquiry. Legally, “forensic mental health patients” are people whose status in the penal system is determined by a mental illness. The preamble to the AMA Position Statements22 also defines the principles, standards and values underlying the health care of prisoners and detainees including that prisoners and detainees have the same right to access, equity and quality of health care as the general population. The Australian Council on Healthcare Standards Evaluation and Quality Improvement Program Guide (EQuIP) is a management tool designed to assist organisations providing health care services to assess and evaluate their service against recognised standards. These national standards have evolved from or been influenced by significant national commissions of inquiry and are relevant to my investigation.

3.3 STATE LEGISLATION

The legislative basis for the prison system has, since this inquiry commenced, undergone change. The relevant current legislation are the Corrections Act 1997, the Criminal Justice (Mental Impairment) Act 1999 and the Mental Health Act 1996. The Prison Hospital provides inpatient, outpatient, forensic mental health and other health services for prisoners, detainees and persons under a “restriction order”.23 The Prison Hospital accommodates prisoners and persons on remand, but is also a designated “special facility” for those who are mentally ill. Although the hospital is in a separate building adjacent to the main prison, a person detained under a “restriction order” can be placed in the main prison despite not having been convicted of a crime.

The Prisons Act 1977 was repealed and replaced in August 1998 by the Corrections Act 1997, and various Regulations, Standing Orders and Rules are being reviewed to ensure that they are in conformity with the new legislation.24 The Corrections Act 1997 provides the legal framework for those sentenced under the criminal justice system and, for certain purposes, also applies to detainees. The rights of prisoners and detainees are prescribed in s.29(1) of the Corrections Act 1997. The guiding principles and objects of the legislation balance the rights and needs of those in custody with the need of the community for an appropriate level of protection from illegal behaviour. The Corrections Act 1997 underlines the dual function of incarceration and eventual social reintegration.

The Mental Health Act 1963 has also been repealed and replaced by the Mental Health Act 1996. This Act provides the statutory framework for the care and treatment of persons with mental illnesses and sets out provisions designed to safeguard their rights. Under the Criminal Justice (Mental Impairment) Act 1999 a defendant found to be unfit to stand trial or not guilty by reason of insanity, becomes "liable to supervision".25 The court may, under s.24(1), make a "restriction order" and, if this occurs the person is detained in a "special facility".26

Section 6 of the Criminal Justice (Mental Impairment) Act 1999 provides that a prison or part of a prison may be declared, by the Attorney General, to be a "special facility", and, for the purposes of the Corrections Act 1997, that person is taken to be detained in that prison, but for any other purpose is not taken to be detained in that prison. In essence, a mentally ill person who is unfit to plead or has been found not guilty of a crime by reason of insanity, can be detained in a “special facility” which is part of a prison. The Director General of the prison can, either with the person’s 14 consent or for other prescribed reasons, transfer that person within the prison system.27 In essence forensic mental health patients can be accommodated with prisoners.

Both the Corrections Act 1997 (s.4) and the Mental Health Act 1996 embody objectives and guiding principles. These include the principle of detention consistent with the least restrictive alternative subject to the need to protect the community and the entitlement of those in custody to have health care and services equivalent to those available in the wider community. The objects of the Mental Health Act 1996 are set out in s.6 and apply to those under a “restriction order” who are detained in a special facility28 Section 7 of the Mental Health Act 1996 is based on the United Nations Protection of Persons with Mental Illness and the Improvement of Mental Health Care.29. The powers under this Act are required to be exercised in accordance with the guiding principles. This is a statutory directive and an issue for this investigation is whether these principles and directives are translated into practice.

I have also recommended that s.6(2) of the Criminal Justice (Mental Impairment) Act 1999 be amended to incorporate the same standards referred to in s.9(2)(a)(b) of the Mental Health Act 1996 and in the interim the Attorney General and Minister for Health and Human Services agree to work towards implementing these standards to the current “special facility” at Risdon Prison. The purpose of making this recommendation is to ensure that consistent principles and standards apply to facilities which accommodate those who are detained in a special facility under restriction order.

3.4 THE COMMON LAW DUTY OF CARE

In addition to criminal negligence under section 177 of the Criminal Code Act 1924, there is a common law duty of care. Failure to meet this standard of care gives rise to a direct legal liability on the part of the custodial authorities and those in charge of special facilities for forensic mental health patients. This duty of care falls on Corrective Services, Forensic Mental Health Services, and their respective agencies and officers. The duty of care issues are further discussed later in this report, and include an opinion provided by Mr Peter Tree.

This duty extends to taking adequate measures to attempt to prevent suicide and self harm, and to provide appropriate medical treatment, management and care to a requisite standard. Various inquiries and courts have held that the State, having deprived a person of their liberty, has a special obligation to those in care. The Royal Commission into Aboriginal Deaths in Custody 30 considered that: “Since the fact of being detained in custody means that the prisoner is deprived of access to normal medical services, it is plain (and the courts have held) that the duty of care extends to the provision of medical care and assistance in cases where the circumstances reveal that a prisoner does, or may, need such care and assistance. This is the case whether the care is requested by the prisoner or otherwise".

The standard imposed by that duty of care is to take whatever action is reasonable in the circumstances to ensure that person's continued well-being. In principle, a breach of the duty of care would render those responsible, and their employer, liable in an action for damages. However, where there is systemic failure, the Commissioners expressed a view, which I have adopted, that it is important to focus on institutional failure and not on individual officers.31 In some cases the Commission reported that absence of due care by individual officers contributed to deaths in custody, but "in most cases the neglect in care was related to a systems defect". 32

15 Commissioner Elliott Johnston, QC 33 emphasised that "It is important to note that the duty of care attaches primarily to the custodial authority; that is to say, the corrections department ... The duty of those agencies extends, at least, to the provision of a reasonably safe custodial environment, the provision of sufficient and competently trained personnel to staff custodial facilities and the issuing, to those personnel, of appropriate orders and directions, the performance of which should be supervised by persons of appropriate training and authority."

The Commissioner considered that the duty of care owed by custodial officers to persons in custody should extend at least to putting into practice the precepts of their training, observing their orders and directions and otherwise acting as a reasonable person in the given circumstances.

A corollary of this was that government has a clear duty to ensure that custodial agencies are well aware of their responsibilities, and that appropriate regulations and orders are made. In accepting and recognizing their duty of care, custodial authorities should take appropriate steps to properly inform their officers about the existence, the nature and extent of that duty of care.34

As indicated earlier, the standards used in this inquiry to evaluate the health care and forensic services, are those enunciated in international instruments, national standards, the governing legislation and common law. Invariably there is a gap between the ideals expressed and their attainment, but if resources are inadequate and planning ineffective, then the organisation is unlikely to achieve its key objectives and may fail in its duty of care to those in custody. Part of this inquiry has been to evaluate the prison health care and forensic services against these standards to determine whether or not they are deficient and, if so, to make recommendations to help remedy these deficiencies. In evaluating health services, it is not feasible to consider the Risdon Prison Hospital in isolation from the Risdon Prison, as this impacts on every aspect of the functioning of the Hospital and the delivery of health care and forensic services.

In part, the duty of care of the DJIR is met by proper physical infrastructure, an appropriate organisational structure; adequate staffing levels, services, treatment and activities for those in custody. Attaining an appropriate standard of custodial care requires developing strategies to better address, resolve, manage and prevent some of the adverse consequences of detention. This requires Corrective Services to administer the prison in such a manner that the security and custodial requirements do not unnecessarily adversely impact on the capacity of the hospital or “special institution” to create a therapeutic environment.

Training, as to the existence of a duty of care, and the standard of care required to fulfil that duty in custodial situations, also provides a framework for the performance of duties in a professional and competent manner. This means maintaining adequate staff so that services and programs for those in custody can continue when staff attends training. It also imposes an obligation on agencies to effectively plan and co-ordinate matters which impact on other agencies, services and individuals.

3.5 THE ISSUES

The key issues which are the focus of this investigation relate to the health service, care and management of persons detained either by virtue of a custodial sentence, on remand or detained under a restriction order arising out of their mental illness. Irrespective of legal status, there are issues which relate to the special needs of a prison population, including those at risk or with personality disorders, which give rise to challenging behaviours, including self-harm. There are the overarching issues of the agencies’ and individuals’ responsibility to fulfil their duty of care to those

16 in custody. There are issues concerning the FMHS and the effects of various changes implemented in 1999 by Dr Jager.

Included amongst issues for this investigation are whether the services for those who have a mental illness and the strategies to prevent suicide and self harm are adequate, and whether the management of those with severe personality disorders is appropriate. There is an issue as to whether mentally ill persons who are presumptively innocent should be detained in the Risdon Prison with persons who have been convicted of crimes, rather than be accommodated in specialist psychiatric facilities. The Review of Forensic and Secure Psychiatric Services conducted in 1995 regarded the use of the maximum security unit at the Risdon Prison Hospital and the lack of specialised facilities as far from ideal, yet this situation remains unchanged. There are also issues concerning the treatment and accommodation of prisoners who become mentally ill during their sentence or require continuing care at the conclusion of their sentence.

A further issue in this investigation is whether appropriate standards of health care and treatment for those who are mentally ill can occur when the special facility for treatment purposes is part of the prison system. The detention, as a minimum standard, should be detriment-neutral and aim to restore or appropriately manage the mental health of the person subject to the restriction order. By law, the Attorney-General needs to be satisfied that the place is suitable for the accommodation and medical treatment of those required to be detained in conditions of special security. The principles embodied in the National Strategy For FMHS and the AHMAC Discussion Paper provide an appropriate standard for evaluation purposes.

A number of persons interviewed during the investigation said that these objects and safeguards, including appropriate conditions and treatment for those with mental illnesses, are either subordinate to or influenced by the security requirements of the prison. Evidence was given that the Prison Hospital not a therapeutic environment. In support of this contention, reference was made to past investigations, including the 1995 findings of the Tasmanian Review Committee. The Committee reported that the location of mental health services within the Prison Hospital, the custodial atmosphere and the lack of comprehensive treatment and rehabilitation options, constrained the delivery of optimum quality psychiatric care.

3.6 PERFORMANCE MEASURES

There is a frequent criticism that health care needs are compromised in a custodial environment because of the emphasis on security, but that eventually almost all those detained will be released back into the community and the success or otherwise of their reintegration will depend in part on their rehabilitation.

For this reason criminologists and others state that the corrections system has to accommodate the general goals of social reintegration, the reduction of recidivism and the restoration of mental health. If the system fails to attain these goals and becomes prone to adverse events such as an increased rate of suicide, self-harm and assaults, this would suggest that there is systemic failure. It would indicate that the prison system is not detriment-neutral and that it has failed in its duty of care.

In the reporting year covered by this investigation, the death rates for total prisoners from apparent unnatural causes ranged from zero in the ACT and the NT, to a rate of 1.12 per 100 prisoners in Tasmania (figure 10.6).35 This death rate, on a comparative basis, suggests that the respective agencies responsible for inmates including forensic mental health patients, are failing to meet an acceptable standard of care. 17 Figure 1: Total prisoner death rates from apparent unnatural causes 1999-2000

The Government comment, contained in the 2001 Report on Government Services, was that the Tasmanian prison population (remand and sentenced) continued to increase and that this increased prison population, changes in the prisoner profile and the inflexibility of prison facilities within Tasmania has contributed to a continuation of the types of incidents experienced in recent years. It was acknowledged that rates of assault, death and escape remained high in 1999-2000. Reference was made to the proposed Prison Infrastructure Redevelopment Program recently announced by the Government. Despite the opening of the Hobart Remand Centre in 1999, the increasing prison population has continued to place pressure on the system. The maximum security prison at Risdon has continued to be used for additional remand accommodation.

The report noted that: “A continuing policy issue for corrective services, as for the wider criminal justice system, is the need to balance community expectations of compensation and reparation for crimes committed against other sentencing objectives (such as deterrence, punishment, rehabilitation, and containment), and to balance the manner in which these diverse sentencing goals are expressed in correctional objectives (such as requirements to maintain prisoner security and community safety as well as minimum standards of prisoner care).” 36

I accept that the public has a right to expect that security and controls will be imposed for the protection of the public and that this is a critical performance indicator for Corrective Services in relation to those in custody. There is also an expectation, proscribed in legislation, that the corrective system and Corrective Services will have regard to the goals of rehabilitation. Implicit in the concept of diminishing restrictions as the person in custody demonstrates a capacity for "social responsibility", is the concept of the least restrictive alternative in the manner of detention. This is part of a person’s reintegration, and the security classification and parole system are in part premised on prisoners demonstrating such a capacity. The Report on Government Services also defines the agreed objectives of Corrective Services in similar terms37 and states that these objectives are to be met through the provision of services in an equitable and efficient manner with effective resource management.

Also implicit in the notion of rehabilitation is the prevention of further deterioration of a person while in custody and the concept that, even if rehabilitation or social reintegration is not achieved, custody should at least be detriment neutral. This applies also to those forensic mental health patients in the “special facility” who were placed under a restriction order by the courts because of

18 actions which otherwise would have attracted criminal culpability, but which arose as a consequence of their mental illness.

These are all issues to consider in determining whether the current service model at the Prison Hospital complies with the statutory obligations imposed on both Departments and provides a reasonable standard of care for all patients. Even if those detained under restriction orders were removed from the prison system to separate secure psychiatric units under DHHS which were designated as “special facilities”, there would still be a need for FMHS at the Prison. These FMHS would still be required for prisoners or detainees who are mentally ill but whose condition is perhaps chronic but stable, not acutely psychotic or does not otherwise warrant a transfer to a secure psychiatric unit. It is necessary to consider whether preventative measures are adequate to better protect “at risk” inmates and this extends to the concept of rehabilitation both as an end in itself and to reduce recidivism.

It is also necessary to consider what action Corrective Services has taken at the prison to manage the transition from custody to community. The Report on Government Services referred to this as a key policy issue, and referred to the need to maintain family and community links and to enhance prisoners education and employment skills.38 It is widely acknowledged that enhancing employment opportunities through education and training is important for successfully re- integrating prisoners into the community and reducing the risk of re-offending.

19 4. THE PRISON POPULATION

The prison population is a “special needs” population, requiring service provision appropriate to these needs. Dr Beadle endorsed the principle that the right to appropriate health care should not be affected by the legal status of the individual and that “Health services ideally should be available to people within the prison system at the same level, in terms of quality and quantity as the level generally available in the community.” He said that as the prison population was a “special needs” population, the level of resource allocation and provision of health services, should be at a level based on the assessed needs of that community. The principle of equity in access to health services was, in his view, a very important principle for resource allocation and other purposes.

In Dr Beadle’s view, “Prisoners represent one of the most marginalised groups within our society. This group has the highest incidence of specific physical and mental health problems. Compared to the general population the inmate population has a higher incidence of infectious diseases (STD, hepatitis C and B), traumatic musculo skeletal conditions, epilepsy and assault, and a higher occurrence of mental health problems (relationship breakdown and domestic violence, self harm, suicide, behavioural problems and major mental illness). Inmates take part in high risk activities to a greater extent that the general population such as intravenous drug use and tattooing, which in a prison environment, with its inadequate harm minimisation strategies compared to the outside community, leads to a higher level of risk.”

Several of those interviewed made the observation that there has been an increase both in the number of older prisoners and juvenile offenders, inmates who are psychiatrically disturbed, mentally ill, have personality disorders, intellectual disabilities, or who are alcohol or drug dependent. There was a widely held perception, both in Tasmania and other jurisdictions, that the prison had become “a dumping ground” for seriously disturbed men and women who had long histories of disturbed behaviour, admissions to psychiatric institutions and attempted self harm.39 There are older persons with diabetes and associated problems who require hospital care and others with a range of health needs, all of which require adequate funding.

It is generally recognised that prisoners as a group have probably the worst health by comparison with any other group in the community and a history of significant social and economic disadvantage. There is a high prevalence of communicable and chronic diseases, such as HIV/Aids and Hepatitis C, and problems associated with substance abuse and chronic ill health. This special needs population is likely to require specialised care and medical services, which are resource intensive, in order to provide a standard of care and health services equivalent to that available in the community outside the prison.

As stated in the Western Australian Ombudsman report:40 “The fact that these groups of prisoners present a range of health problems which are likely to absorb a disproportionate amount of the health services budget, does not absolve the Ministry from accepting and discharging its responsibility to treat offenders who are admitted to prison with serious pre-existing conditions, even if that involves the employment of more staff and a commensurate increase in the allocation of health services funding. The treatment of small but costly prisoner groups cannot be compromised by lack of funding nor can it compromise the provision of health services to other less- demanding groups of prisoners.”

20 The prison population continues to increase nationwide. The Report on Government Services 2001 41 reports that on average, 20 753 people per day were held in Australian prisons during the year (excluding periodic detainees) - an increase of 4.5 per cent over average daily numbers in the previous year. Nationally, the daily average number of prisoners in 1999-2000, comprised 19 442 males and 1310 females (94 per cent and 6 per cent of the prison population respectively) and the daily average number of Indigenous prisoners was 4041 (or 20 per cent of prisoners nationally). Census data over the past decade indicates that, in addition to increasing numbers of prisoners, the characteristics of the overall prison population is also changing and that a higher proportion of prisoners are serving sentences for assault and sex offences as their most serious offence. The average age of prisoners has increased as has the proportion of those serving longer sentences.42 Changing prison populations and increasing prison numbers have combined to place increasing pressure on corrective services facilities and programs, and in Tasmania this has occurred in the context of aging prison infrastructure and a progressive reduction in staffing levels.

The growth rate of the total prison population has increased in Australia by an average of 4.2 per cent a year from 1982-98.43 Figure 2 represents the general prison population growth at a rate per 100,000 adult persons in Australia. Figure 3 shows the individual states rate of growth between 1988 and 1999. The Tasmanian prison population rose from 297 in 1988 to 343 in 1999 which, in comparison to the other states, is relatively stable. However, this still represents an increase of 15.49%.

Figure 2 - Imprisonment rate per 100,000 adult persons44

10000 8000 6000 1988 4000 1999 2000 0 NSW VICT QLD SA WA TAS NT ACT

Figure 3 - Population of Prisons

Over the last decade, Australia has seen a shift in the average age of the prison population. Figure 4 compares the mean age of the individual state prisons in 1991 and 1999. Although the mean age has remained relatively stable, the table still represents an increase in the median age of prison population.

21 35 30 25 20 1991 15 1999 10

Mean Age (Years) 5 0 NSW VICT QLD SA WA TAS NT ACT AUST

Figure 4 - Mean Age of Prison Population

The rising age of the population of the prisons, as shown in Figure 5 represents the current trend within the Australian community of the rising age of our population, with people entering prison relatively later in life.45 Further evidence of the rising age of prison population can be seen in the decreasing percentage of the prison population under 25 years of age from 1988 to 1999, as seen in Figure 6. Nevertheless, Tasmanian has the highest percentage of the prison population under the age of 25 years. Figure 7 shows the Tasmanian prison age categories in comparison with that of the Australian percentage. This table highlights that whilst the Tasmanian percentage of the male prison population under 24 is greater than that of the Australian, the Tasmanian percentage of prisoners aged 65 years and over is also above the national percentage. It should be recognised that the information in regard to prisoners under 18 years of age contains data from Victoria, Queensland, Tasmania and the Northern Territory. NSW, South Australia, Western Australia and the ACT do not place their juveniles in an adult prison environment.

Figure 5 - Inmates Aged 50 and Over as a Percentage of the Total Prison Population, Australia 1987-97 46

30 1988 20 1999

Percentage 10

0 NSW VICT QLD SA WA TAS NT ACT AUST

Figure 6 - Under 25 years (% of total population)

22 30

20 TAS 15 AUST 10

0 18 19 over 20-24 25-29 30-34 35-39 40-44 45-49 50-54 55-59 60-64 65 and Under 18

Figure 7 - Percentage of Age Categories of Male Prison population - Tasmania and Australia

45 40 35 30 25 1988 20 1999 15 10 5 0 Less 5 to 10 than 1 less years year than and Aggregate Sentence Length (%) 10 over

Figure 8 - Aggregate Sentence Length (5)

The rising age of the prison population can be contributed to another factor that is, the increasing sentence length of prisoners. Tasmania has seen a rise of nearly three times the number of prisoners serving 10 years or more between 1988 and 1999, as shown in Figure 8. This rise in sentence length generally in Australia has been accredited due to the nature of the most common category of offences for over 50 (refer to Figure 9). Violent and Sexual crimes are more likely to result in imprisonment, and for longer sentences. Juveniles and those under the age of 25 are more likely to commit property offences which often result in lesser imprisonment sentences. The median age in regard to robbery is the only recorded decline.47

23 70% 63% 60% 50% 47.5% 40% Under 50 29.3% 30% Over 50 20% 14.8% 14.20% 9.6% 7.9% 5% 5.7% 10% 3% 0% Percentage of Offence Type Drug Other Driving Sexual Violent/ Property Offence Type

Figure 9 Offence Breakdown by age in Australia, 1997 48

In reference to the above tables, it has been shown that males are receiving longer sentences and are entering prison later in life for the first time for more serious crimes. This realisation may dissuade the widely held perception that offenders entering prison are generally younger.

4.1 JUVENILE OFFENDERS

At the time of the investigation, many of those interviewed said that juvenile offenders were now coming into the prison system when they turned seventeen, and there was reportedly a high percentage in the prison population of very young offenders. Under amendments to the Youth Justice Act 1997, which commenced in February 2000, juvenile offenders are remanded and detained at Ashley Detention Centre unless circumstance warrant that person being remanded or detained in the Prison Hospital. This perception of an increase in younger offenders appears to be supported by the statistical data, as indicated in Figure 7. There was a general belief that the incidence of violence in the Prison, had increased with this influx of younger offenders and this, together with other social problems, had created a volatile prison population.

There was a perception that the increase in violence within the prison system was linked to the younger age of offenders and the management of these younger offenders was made difficult by the importation into the Prison of some of the attitudes and social problems prevalent in society. There was a widely held perception that in the prison intake are a greater number of “more violent younger offenders” who seem fearless of authority and acted without regard for the consequences of their actions.

A submission made by “Stepping Stones” 49 questioned the suitability of the hospital for young people, especially those with mental health issues. Their client group are younger offenders, many of whom are imprisoned for drug related offences or have drug and alcohol problems. They considered the Risdon Prison generally is an unsuitable facility for young offenders given its emphasis on high security and apparent inability to provide adequate protection to vulnerable people. They considered that staff of the main Prison needed to be, but were not, appropriately qualified and trained to assess the day to day physical and mental health needs of prisoners particularly in relation to the young offender.

As previously stated Tasmania also has a higher proportion of prisoners over the age of 65 years by comparison with the Australian average (refer to Figure 7) and in terms of health care, this brings with it special health care requirements for older prisoners.

24 4.2 ALCOHOL AND DRUGS

It was said that the prison population had changed over the last few years and that a greater percentage of the prison population had significant drug and alcohol problems. The hospital admission statistics indicated 82 separate admissions diagnosed as alcohol and drug withdrawal, which represented 13.6% of all prison hospital admissions. Both Dr Lopes, the former Director of FMHS and Dr Assenheimer, the FMHS psychologist, and others considered that an appropriately experienced professional therapist, and an adequately resourced service, was needed for those who have alcohol and drug problems. Prisoners suffering the effects of substance abuse represent the largest “special needs” group entering the prison system and withdrawal on admission to the prison is recognised as increasing the risk of suicide and self harm.

One view was that there were not enough specialised people in the intellectual disabilities, drug and alcohol and youth counselling area to stop the influx of young offenders into the criminal justice system. It was said that the prison inherits this problem via the criminal justice system because the filtering, prevention and support mechanisms are not there at an earlier stage.

There are clear links between illicit drug use and crime50 and health implications related to substance abuse. Despite this there is no discrete detoxification unit. People are assessed for detoxification or drug withdrawal management on admission but, reportedly, very little was operating in terms of on going rehabilitation and counselling and insufficient resources had been allocated for this program. Counselling and rehabilitation programs for those with substance abuse problems are concentrated at the end of the sentence rather than at the beginning, due apparently to the limited resources, but a view was expressed by a number of interviewees that an opportunity was lost when the issue was not addressed at the beginning of the sentence.

The part-time psychologist and alcohol and drug counsellor, Dr Elida Assenheimer, said that almost the entire prison population had some kind of drug and alcohol related problem, including prescription drugs like benzodiazepines, and many in addition had some sort of stress, trauma or personality disorder. There is a higher incidence of Hepatitis C amongst prisoner populations and the longer term health implications for a percentage of those who might experience liver failure or liver cancer, is likely to have a significant and increasing impact on the prison health services in the next few years.51 Hepatitis C screening is voluntary but evidence was given which suggested that the program was not always adequately supported and, following a resignation, there was a delay of some months in re-appointing a Sexual Health officer to the Risdon Prison.

4.3 INTELLECTUAL DISABILITIES

Over the last five years an increasing percentage of the prison population reportedly have intellectual or physical disabilities. Many of those interviewed supported the policy of deinstitutionalisation and the closure of Willow Court, but believed that this had led to some people with intellectual disabilities becoming part of the criminal justice system. Some said some of those imprisoned were “revolving door” clientele of a treatment centre - such as 6A, Royal Derwent Hospital (RDH), John Edis - and were now recidivists in the criminal justice system because of inadequate community support. The view was generally expressed that with guidance and perhaps some hostel accommodation these people might not have come to Risdon Prison or been part of the criminal justice system. DHHS advises that with the closure of Willow Court, all those transferred to the community were placed in support accommodation and that Tasmania has the highest level of funding for community based supported accommodation by comparison with other jurisdictions.

25 There was said to be an increase of people with intellectual disabilities in prison. These people were vulnerable in the prison system and open to being persecuted, exploited or stood over. The Prison Hospital was regarded as providing the best protection, even though most regarded protection as a custodial and security issue, and not a function of the hospital. Most of those interviewed referred to the hospital providing accommodation for those seeking protection, as well as the intellectually disabled or those with severe behavioural disorders and an issue for this inquiry is whether the hospital should be used for non medical purposes.

Efforts have been made in the past to conduct skills and occupational therapy programs, but have declined because of lack of support, resources or available staff. For example, a program to teach the intellectually disabled inmates gardening skills ran for about two years then declined. Since the commencement of this investigation an occupational therapist from St John’s Hospital has been provided to the hospital to assist the Clinical Nurse Consultant Psychology (CNC Psych) in the management of intellectually disabled inmates.52 This initiative is endorsed and was funded through DHHS to provide an occupational therapist to the Prison Hospital for two days a week. One of the criticisms I have of the Prison Hospital is the paucity of rehabilitation and the lack of meaningful activities.

4.4 MENTAL ILLNESS

The view of members of the FMHS team, and virtually all Hospital staff, was that mentally ill patients ought to receive treatment in a secure therapeutic unit outside the Prison system. The National Strategy for Forensic Mental Health, the Standard Guidelines for Corrections in Australia, national trends, the consultants and many of those interviewed during this inquiry, supported this approach. Following this investigation I formed an opinion that the prison hospital was unsuitable as a “special facility” for persons with a mental illness and recommended accordingly.

In the prison environment generally, and in the twenty seven bed Prison Hospital, segregation was regarded as necessary to better manage the whole gamut of patients with psychological, mental and medical problems, as well as those who are intellectually disabled.53. Dr Jager had advocated the decommissioning of the “special facility” at Risdon Prison but, whilst that situation existed, he accepted that it was part of the Prison and under the prison regulations. However he also believed that the Prison Hospital could not function properly as a hospital while custodial staff were able to disregard the professional opinion of the medical staff.

There was a widely held view that the Prison Hospital was not a suitable facility for the mentally ill. Mr de Bomford, the DON, as did most interviewees, supported the transfer of FMHS clients to a separate secure psychiatric unit. In the past both he and the CNC Psych, had advocated a more appropriate separation of clientele within the hospital to better facilitate care and treatment.

There is also a separate issue of the circumstances in which a person should be diverted from the criminal justice system. The DHHS has appointed a court liaison officer to help identify and refer persons with intellectual disabilities and those who are unfit to plead either by reason of incapacity or mental disorder.

4.5 SEVERE PERSONALITY DISORDERS

Amongst the prison population are persons with severe personality disorders, some with a dual diagnosis, underlying mental illness, who were sometimes accommodated in the Prison Hospital. These inmates frequently exhibited challenging behaviours and were often a risk to themselves and 26 others. There is an on-going debate, both at a national level and in this particular inquiry, as to who ultimately ought to be responsible for the care and management of those with severe personality disorders.54 Dr Jager's view, as Director of Forensic Mental Health Services, is that these ought not be clients of the FMHS as they do not have a mental illness. Another view, expressed by the consultant Dr Falconer is that, as general mental health services are not available to people in prison, the threshold of who is a FMHS client, and the services they receive, should be lower.

Dr Beadle said persons with a severe mental illness requiring specialist psychiatric attention were a very small part of the overall health services, but that the general mental health needs of the prison population were quite vast and could include about 80 per cent or more of the prison population. Dr Beadle was prepared to accept that perhaps for a pure forensic psychiatry unit, the clientele and model proposed might be appropriate, but that within a prison environment it was too restrictive.55 Dr Beadle supported the allocation of further resources for such services, and a greater focus on preventative programs and rehabilitation. He supported Dr Falconer’s multidisciplinary approach.

In relation to the general facilities, “Stepping Stones” supported the recommendations made by the Legislative Council regarding immediate upgrade and replacement of the Risdon Prison.56 In relation to forensic mental health patients and prisoners who develop serious mental health problems whilst incarcerated, they advocated a separate facility, away from the main prison and for prisoners who are or become physically unwell, appropriate hospital facilities separate from those with mental health problems. They submitted that, in the Prison Hospital under the current arrangements, the failure to separate clients/patients according to their treatment needs was detrimental to their care and rehabilitation. Dr Falconer was of the same view and the issue of designated beds is dealt with in his report.57

4.6 FEMALE PRISONERS

The number of female prisoners as a proportion of the total prisoner population is both nationally and in this State significantly smaller than for their male counterparts. An AIC recent paper on prison demographics reported that the national ratio had remained relatively stable at 5.3% in 1988 and around 5.7% in 1999. To some extent female prisoners are a forgotten minority but they have special health care needs, including pregnancy. Frequently female prisoners have a history of physical and sexual abuse, and like their male counterparts, problems with substance abuse.

The women are accommodated in a separate building in the Risdon Prison complex, which consists of 23 single and one double cell with no separation of prisoners according to their security classification or of mentally ill detainees under a restriction order. The female prison was at the date of inquiry, full to capacity and the ages of the prisoners ranged from 17 to almost 70 with a significant number engaged in work.58 Some female prisoners were critical of the failure to separate prisoners by legal status or classification and considered that those who were mentally ill ought to be treated at a special psychiatric facility. Prisoners in an acute phase of their mental illness are transferred to the Prison Hospital and others may be transferred for observation. There is a separate cell used as a time out room and for disciplinary reasons. One prisoner reported that she objected and resisted to being taken for observation to the Prison Hospital and was charged. I have some concerns that disciplinary charges should proceed in these circumstances.59 Programs, work and activities appear to be more consistently provided to a greater proportion of female prisoners than to their male counterparts in the main prison or Prison Hospital. Inmates cells are unlocked at 8.00am and locked down at different hours according to their security classification.60 A number of prisoners considered the 5.45pm lockdown time unreasonable particularly in summer with day light saving when the cells were frequently hot. 27 Although female prisoners have special health care needs, these needs have not been considered separately in this report. On the 11th of January 2000 there was a suicide attempt in the female prison, which was not reported to this Inquiry. However the conclusions I have reached regarding the precursors to or indicators of suicidality, and the strategies needed to minimise harm, apply equally to the female prisoners and to all those detained under a mental health restriction order.

28 5. THE RISDON PRISON HEALTH SERVICE

Prison Health Services in Tasmania are primarily the responsibility of the DJIR although Dr Beadle, the visiting medical officer, (VMO) is employed by the DHHS. Forensic Mental Health Services are provided to the prison and “special institution” by DHHS and during the investigation the Clinical Director, Dr Jager, was also the “responsible medical officer” (RMO) appointed under the Criminal Justice (Mental Impairment) Act by the Attorney General.

In addition to primary care provided at the RPH, at the time of the investigation the following ancillary health services were provided. · Sexual health services by the Sexual Health Unit, within the Division of Health Advancement (DHHS). A half time position is provided.61 · Radiology and pathology services. However some delays were being experienced in relation to pathology. Investigators were advised that testing for HIV is a statutory requirement at reception.62 Testing for Hepatitis B and C is available on request. · Physiotherapy services were provided to the Prison Hospital from Community and Rural Health (DHHS) under a contractual arrangement with the DJIR. This appeared to be on the basis of two half days a week. · Dental health services were purchased by the DJIR from Tasmania Dental Services within the Division of Health Advancement (DHHS). A dentist and dental assistant were attending the Prison on a weekly or fortnightly basis. Generally this is on the basis of half a day each fortnight. · An optometrist was contracted by the DJIR from OPSM Pty Ltd to visit on an as needed basis. Optical services were purchased by DJIR on a fee per client basis from several local providers. · Alcohol and Drug services to the Prison were provided both by the prison medical officer and hospital, in terms of managing alcohol and drug withdrawal, and also by “Your Place Inc”, an entity funded through the National Drug Strategy (Commonwealth State share agreement) and are monitored by DHHS.63 · Methadone maintenance treatment is provided to all who enter prison who are at that date on the community Methadone Maintenance Program. · Public health services, including infectious disease control, food safety and water quality, are provided by Public Health and Environment Unit (DHHS) on an as needed basis. The Clarence City Council Senior Environment Health Officer has a responsibility for certain aspects of the prison environment, such as the cleanliness of food preparation areas, and this is an ongoing statutory responsibility.

5.1 PLANNING AND COORDINATING THE PRISON HEALTH SERVICES

Given the difficulties inherent in planning, accountability and reporting to different entities in two separate agencies, it is essential that health service planning is coordinated and that the responsibility for this occur at a senior executive level in the DHHS. This requires effective cooperation between DJIR and DHHS, so that changes in health service delivery do not impact adversely on the prison population or other prison health services. At the operational level, planning and effective execution requires health services to be coordinated, delivered competently within an appropriate time frame, and with a proper utilisation of scarce resources. Systems for communicating relevant information for prisoners and detainees who are patients of either FMHS, the VMO or receiving health services is essential, including clinical notes in the prison medical record and discharge arrangements.

29 There appeared to be a lack of a cohesive planning in relation to prison health services, and a lack of liaison between entities such as FMHS, the VMO, other health related services, and the Prison authorities. Decisions, such as the move of FMHS from Risdon Prison to Glenorchy Health Centre, were sometimes made at a senior executive level in or between agencies without sufficient consultation with other service providers such as the VMO or the DON. Just prior to the commencement of this inquiry, the DHHS established the "prison health forum” to ensure that various agency plans for prison health services were more cohesive.64 This forum had the potential to improve and reinvigorate planning both between the respective agencies and at a service level, and that initiative is acknowledged.

Dr Beadle considered that quality assurance within the prison was an important issue for management. He was of the view that the Prison Health Service should use Australian and international standards in health care,65 to implement best practice in service delivery; to evaluate procedures and policies in the health service; to ultimately provide a comprehensive, efficient and high quality health service; and to aim for accreditation of the Prison Health Service within an appropriate timeframe.66

Dr Beadle referred to the need to look at the primary health care model of service delivery and the needs of the prison group as a single population in order to allocate resources on the basis of population need. He referred to preventative mental health care, the need to examine the notion of good mental health, and the care required to produce an optimal outcome in terms of the general well-being of that particular inmate or individual. He considered that it was also important that those providing health services within the Prison have an appropriate attitude as a health service provider, and provide services at an appropriate standard.

For planning to be effectively implemented, there needs to be a clear organisational structure, effective communication and clear lines of accountability. Dr Jager commented that the “Lines of responsibility in the service are blurred and there has been little accountability, in recent times, to the Clinical Director.” He said that this was particularly evident in the Prison Hospital, where it is uncertain, at any one time, as to who has the ultimate clinical responsibility for an individual patient, and admission and discharge arrangements appeared idiosyncratic. Similar concerns were expressed by the VMO, DON and others. In light of these concerns the consultants made various recommendations that nursing staff at Risdon be organisationally reallocated to the DHHS and the nursing structure be reviewed. They considered that this would create clear lines of organisational accountability and professional support for medical and nursing staff.67

I have accepted these recommendations and on the 27th March 2001 advice was given that the organisation structure will alter as from 1 July 2001 following a decision of Government to transfer the management of the Risdon Prison Hospital and other correctional health services from the DJIR to the DHHS.68 A ”Prison Health Service transfer Project” and “Prison Health and Related Services Renewal Project” is currently being undertaken by DHHS in conjunction with DJIR.

It was apparent during the investigation that health related matters had at times been brought to the attention of prison authorities and had been ignored, or there had been a failure by staff to inform Prison management of problems. For example, Dr Beadle provided documentation showing that over a period of many years he had objected strenuously to the supply of unpasturised milk before this was finally attended to. In November 1999 there was an outbreak of bacterial gastroenteritis at Risdon Prison and Hayes Prison Farm and Campylobacter enteritis had been isolated from milk supplied to the Prison Hospital from Hayes. It appears that due to a breakdown in EQuIPment, the milk had not been pasteurised for some two months. The Director of Prisons took prompt action

30 when informed but said that neither he nor the Director of Industries had been informed of the EQuIPment failure.69

Statements were made that breakdowns in communication and a lack of co-ordination sometimes led to prisoners missing the initial health assessment at reception, not being advised promptly of blood test screening results, being transferred without their medications, or being discharged without follow up arrangements being made. The consultant, Dr Falconer, reported that discharge summaries are not routinely generated for prisoners released from Risdon Prison. Rather, information is made available to external health providers as considered necessary on the basis of a written request.

On the issue of missed health assessments it was said that sometimes the initial health inspection of a person about to be admitted to prison was missed at the Remand Centre as remandees can short circuit the loop.70 Dr Beadle thought that over a 12 month period there may have been one or two receptions into custody where the initial health assessment by the prison medical officer was missed but he did not believe that any inmate missed the initial health screening assessment by nursing staff. He thought it was possible that a certain number of inmates might miss their initial HIV blood test screening, but not their initial health assessment, which included their risk assessment.

The Sexual Health educator said that part of his role was to provide instruction about needle stick injuries, blood spill procedures and counsel prisoners in relation to the voluntary screening and vaccination procedure for Hepatitis B. In his view formal procedures and policies were lacking in many areas and there was no commitment to promoting health in other prison units.71

He was also critical of the processing of the test results by the Prison Hospital and referred to the futility of encouraging people to undertake tests if these health messages were being countermanded or not acted on. He said that Dr Beadle would receive the test result sheets for vaccination approvals and would send the authorisations to the CNC Medical, who was responsible for instigating the hepatitis B vaccination program, but there were then frequent delays.72 In his view, the longer the delay between the test and the vaccination, the less relevant the test result. From his perspective, which I have accepted, there was not at that date an effective system in place for processing the test results. On the separate issue of the compulsory testing of all prisoners for HIV, Dr Falconer was of the opinion that this was an unnecessary expenditure. I accept his reasoning as outlined in his report73 and recommend accordingly. Dr Mark Jacobs, the Director of Public Health (DHHS) advised that he had no problem at all with compulsory testing for HIV ceasing, as compulsory testing is not consistent with DHHS general approach to control of communicable diseases in this state. However, he stated that it is important to recognise that prisoners are a high risk population for blood-borne viruses such as HIV and hepatitis B and C viruses, because of behaviour both prior to and during their period of imprisonment. It is therefore vital that voluntary testing for these infections continues to be offered (and encouraged) at both entry to and release from the prison system, and that this testing meets requirements in relation to consent and pre- and post-test counselling.

Dr Beadle also objected regularly to the Prison Management about the unhygienic state of the Prison kitchen but it was not until a complaint was lodged by prisoners with the Ombudsman that an inspection was undertaken and the responsibility of the Health Officer from the Clarence City Council defined. The Health Officer inspected the Prison Kitchen on 15th January 1999, and issued Corrective Services with a compliance notice to conduct a thorough clean up of the kitchen area74. Inevitably health services personnel were critical of the failure of Corrective Services to address problems which they regarded as significant.

31 5.2 THE DIRECTOR OF NURSING

The Director of Nursing (DON) at the date of the investigation was Mr de Bomford. The DON is employed by the DJIR and reports to the Director of Prisons, Mr John Dodd. The position of DON involves an important planning, liaison and consultative function. As DON, he is responsible for the nursing services provided and for the overall management of prison health services within Corrective Services. This includes coordinating the health services provided by other Departments or entities. Mr de Bomford said that the organisational reporting and accountability structure between himself, Dr Beadle and Dr Jager had "never actually been spelt out" but they reported to different entities. He considered that the establishment of a "prisoner health forum" would assist with strategic planning and the coordination of services between the agencies and their officers and address some of the difficulties inherent in reporting to different entities. The DON believed that his capacity to plan an effective prison health service, had in part been impeded by the custodial focus and by not having control over a discrete health and hospital budget.75

With regard to clinical matters, Dr Beadle and Dr Jager give Mr de Bomford directions as to patient treatment and management, within their respective areas of responsibility 76 and he in turn consults them on professional and planning issues. Since this inquiry commenced, this has been facilitated by a joint meeting, one afternoon every second month, between Dr Beadle, Dr Jager and Mr de Bomford to discuss any administrative issues at a unit level. Mr de Bomford said that there were two meetings a year with nursing staff, to review the previous year and plan operations for the next year.

Mr de Bomford was asked whether the Prison Hospital had any involvement in setting performance criteria for contracted services such as the drug and alcohol service. It appears that these services are monitored by DHHS and come within the Programs Unit of Corrective Services, without the DON having an involvement in setting performance criteria or quality assurance.

5.3 INMATE HEALTH SURVEY

For the purpose of this investigation a Hospital Admissions database was formulated and recorded details of all inpatient admissions in 1999.77 The compilation of admission and treatment information was to better assess who was admitted to the Hospital, for what purpose and what type of services were provided or required according to the recorded admission diagnosis, the length of the stay in the Hospital and the average daily bed occupation rate to give some indication of the demands on nursing staff providing the primary care. The admissions profile by primary diagnosed condition gives an indication of the range of conditions requiring care and treatment.

Dr Beadle considered these statistics were a good start for planning and resource allocation purposes, but he was of the view that a similar analysis had to be taken in the outpatient area which forms a larger part of the health services, and of the other primary health care services that were either provided, required, or needed to be provided at an increased level. I agree that this more comprehensive data would have been very useful for this inquiry, however due to the inadequate recording system at the Prison Hospital Outpatients this exercise was not warranted. I do however endorse Dr Beadle’s view that a health survey is an essential management and planning tool for resource allocation purposes. Further that there should be proper assessments, evaluations, and audits in a number of areas to ensure that nursing competencies are maintained and health care outcomes are qualitative.

Dr Beadle made a submission titled the “Health Needs of the Tasmanian Inmate Population” on reviewing the health services at the Risdon Prison, and the methodology for undertaking such a 32 health needs analysis. He referred to a 1997 Inmate Health Survey by the New South Wales Corrections Health Service and suggested that this model could form the basis for the Tasmanian review for planning purposes. Such a survey was necessary so that appropriate new services could be developed, health resources directed according to need, and appropriate health goals and targets developed for the inmate population. Mr de Bomford also agreed that a data base would assist better management for the health service in the prison system.

5.4 RESOURCES

Funding for Prison Health Services is the responsibility of the DJIR. Under s.19(2) of the Commonwealth Health Insurance Act 1973 prisoners are ineligible for Medicare benefits while in custody and this funding is met by the State. Many of those interviewed were critical of the level of funding and its decline both in real terms and its failure to keep pace with the increased prison population. It appears that in this State and some other jurisdictions78 Treasury has agreed to provide funding on a pro rata basis to increase funding when, or if, prisoner numbers reached predetermined levels. This approach is endorsed as it has inherent flexibility to respond to demand.

There was a recurrent theme that the Prison Health Services were under resourced and the Hospital under staffed. A number of those interviewed referred to the conflict between the stated objectives of the DJIR as expressed in Mission Statements and business plans, and the resources available to give effect to planned objectives. There was a view that security concerns and the Corrective Services focus was to the detriment of either creating a more therapeutic environment for the mentally ill79 or in addressing the rehabilitation issues which might better serve prisoners once released back into the community.

Since the events that precipitated this inquiry, additional funds have been allocated by the DHHS to the FMHS. Dr Beadle considered that the general application of resources recently had focused on forensic psychiatry rather than focusing on the overall health service requirements. He believed that it was necessary to consider the overall needs of the prison population and referred to the hospital inpatient statistics in support of his view that there was an imbalance in the recent additional resource allocation to FMHS. While he supported the allocation of additional services for FMHS, he also supported an increase in resources, particularly to the nursing area. He regarded the provision of one nurse for the care of 26 inpatients as totally inadequate, as did many of those interviewed.

Dr Beadle, was also concerned that the DJIR would not give priority to the consultant’s recommendation that additional psychologists and social workers be appointed to attend to inmates with severe behavioural problems. He expressed an opinion that some in the DJIR regarded the rehabilitation of inmates, and the less visible aspects of the inmate’s mental health needs, as unimportant even though some aspects of an inmate’s mental health were a factor in the offences perpetrated resulting in imprisonment, and that rehabilitation had the potential to reduce recidivism.

5.5 SUMMARY

I accept Dr Beadle’s submission that it is necessary to look at the primary health care model of service delivery and the needs of the prison group as a single population with “special needs”. He advocated an Inmate Health Survey which I have accepted though I also accept that a state wide database recording all essential data and recording an assessment on health care needs at reception and subsequently, could serve the same purpose on an ongoing basis. Further, that the Prison 33 Health Service should use recognised standards in health care as quality assurance measures for service delivery; and should aim for accreditation of the Prison Health Service within an appropriate time frame. I have adopted and endorse these recommendations.

I accept that the prison population has increased without adequate commensurate funding and this would have exacerbated the pressure on the Prison Health Service. However, there also appeared to be a lack of a cohesive planning in relation to prison health services, and this was compounded by the difficulties inherent in accountability and reporting to different entities in two separate Agencies. There was a lack of liaison between entities such as FMHS, other health related services, and the Prison and a blurring of clearly defined lines of accountability. Some measures, such as the prison health forum, and meetings at a unit level, had the potential to better co-ordinate the delivery of prison services but both the organisational structure and the redefining of positions and roles needed to occur.

Dr O'Brien and Associate Professor Farrell considered that effective forensic medical and nursing leadership was lacking and referred to the key responsibilities of the DON and the clinical nurse consultants.80 They made a number of recommendations aimed at rectifying the perceived deficiencies. Dr Falconer also made recommendations regarding service planning, forensic and medical liaison, and problem resolution. Having interviewed the nursing staff and others, I would endorse the views expressed and recommendations made by the consultants and I have also formed a view that there needs to be a transfer of the Health Services and Hospital management to the DHHS, a reallocation of nursing staff from DJIR to DHHS, a redefining of the roles and essential tasks of the Director, and CNCs and regular meetings to better co-ordinate health services and determine the services required in a corrections setting.

However, in forming my opinion and endorsing some of the conclusions reached by the consultants, I acknowledge the difficulties inherent in planning a health service and operating a hospital as part of the prison system. It is a unique environment and there are special custodial issues. Over the last decade, suicide, self harm and related matters such as death through drug overdose, have emerged as volatile areas of correctional management. It has been suggested (Harding p18) that hand in hand with aging infrastructure and depressed conditions has gone "deteriorating prisoner health” (Paulus 1988) and increased suicide and self mutilation rates. 81 Staff morale has also deteriorated and there has been a growing cynicism as to the value and purpose of prisoner programs. I accept that Tasmania is not unique in this respect.

The conclusions I reached and the recommendations formulated were based on my assessment of the Prison Health Service as it was in 1999 and early 2000. I accept that a number of concerns have either been rectified or are in the process of being addressed jointly by DJIR and DHHS. In particular I refer to the decision to transfer the management of Prison Health Services and reallocate nursing staff from Corrective Services to the DHHS, and also to the “Prison Health and Related Services Renewal Project”.

34 6. THE RISDON PRISON HOSPITAL

The Hospital is a twenty eight bed infirmary housing a heterogeneous mix of inmates which is also a “special facility” for persons who are mentally ill. It is the administrative responsibility of the DJIR and Minister for Justice and the DJIR has the responsibility for the planning, management and resourcing of the facility. As with prisons in other jurisdictions, a hospital will need to remain co- located or accessible to the main prison even if those detained under a restriction order are moved to a secure psychiatric facility outside the prison system. As indicated by the 1999 Hospital Admission Statistics not all inmates are admitted for medical or mental health reasons. Other demographic data referred to earlier in this report indicates the fact that the prison population is both increasing and aging, and this is likely to impact on health care usage.

The nurses are employed by the DJIR under the Australian Nursing Federation (ANF) award and their professional practice is governed by the Nursing Act 1995. The nurses provide health care to a special needs population, including forensic mental health patients whose detention was directly a result of their mental illness.82 The organisational structure of the Prison Hospital and staff is covered in Dr Tony Falconer’s “Review of Primary Health Care Services”.

6.1 THE ROLE OF THE NURSES

The Nursing Board of Tasmania, as the regulatory body, has adopted several national standards (including the Australian Nursing Council Inc. or ANCI Competencies, Code of Ethics for Nurses and Codes of Professional Practice) and developed policies defining acceptable and competent professional nursing practice for nurses in Tasmania.83 The Nursing Act 1995 exists to fulfil the following 3 objectives: · To ensure that nursing services provided are of the highest possible standard; · To ensure that persons practice nursing to the highest professional standards; and to · Guard against unsafe, incompetent and unethical nursing practices.

These standards and competencies apply in all health care settings including the Prison Hospital.

Dr Beadle considers that the nursing staff were the foundation of health care at the Prison and this basic primary health care was, in his view, essential to the efficient and effective use of resources in the provision of prison health services. He believed that though the standard of nursing care remained high, the standard of overall service delivery had diminished because of a lack of nursing staff. Dr Beadle said that this caused significant difficulties, and in his view, arose from resources not keeping pace with the increase in the prison population. He believed that the nurses had a limited capacity to produce change in the way that they operated, and in the way that they provided services.84 This powerlessness in turn impacted on morale.85

The main concerns identified by nursing staff interviewed were: · The decision not to fill nursing position vacancies with permanent employees; · Inadequate staff numbers to cover shifts and the high patient nurse ratio; · The similarity between tasks undertaken by Level 1 and 2 nurses; · Inadequate policies, protocols, procedures, staff training, medication and OH&S issues; · The reduced level of FMH and other health care services; · The difficulty of creating a therapeutic environment and achieving rehabilitation goals in the context of a prison; and · The deaths in custody and low nursing staff morale.

35 6.2 THE NURSING ORGANISATIONAL STRUCTURE

There appeared to be little understanding amongst nurses interviewed as to whether nurses with psychiatric training reported to the CNC (Psychiatry), or what function he had in supervising or directing their work, formulating protocols or providing in-service training. This applied also in relation to the CNC (Medical). Dr Falconer considered that it was timely to review and prioritise core duties of health services staff and recommended that a review be undertaken of the positions of DON, CNC (Medical) and CNC (Psychiatry) to provide a clear focus on core responsibilities with a view to maximising health outcomes of offenders.86 I have endorsed and accepted that recommendation.

Unfilled nursing positions

The nursing establishment in 1999 consisted of one Level 5 position (DON), two Level 3 positions (CNC Medical and Psychiatric), eight Level 2 positions, three Level 1 position and one enrolled nurse position. Of the 12 nursing positions at levels lower than Level 3, one nurse had been reallocated to the HRC for the 12 hour day shift. Of the remaining eleven positions, five were filled on a casual basis following the resignation of five nurses. Some nurses were critical of the decision to fill these vacancies on a casual basis .87 Mr de Bomford, the DON, said the net effect was minimal because the same five people were employed as casuals on a regular basis. He regarded the unfilled positions as an opportunity to increase the number of nursing staff by increasing the number of Level 1 nurses proportionate to Level 2 nurses.88

There were two underlying reasons for this proposal. One was to gain an additional position as although three additional nursing positions had been gained following the 1995 Hospital Review two of these had subsequently been lost.89 The other was to create a more hierarchical structure with fewer Level 2s and more Level 1 nurses to encourage advice and preceptorship. Nurses interviewed said that there was very little difference, if any, between the functioning of a Level 1 and a Level 2 nurse, no delineation between the type of work undertaken, little to facilitate a career structure and no system in place for doing an internal performance assessment.90 From Mr de Bomford’s perspective, this could be addressed by increasing the proportion of Level 1 to 2 nurses. In his view some Level 2 nurses, by comparison with those in other mental health facilities, were not willing to accept their role as Level 2.91 This may be so, but the cause may not be as Mr de Bomford defines it. The deficiencies in the organisational structure of the hospital and other factors, in my view, would make it difficult for Level 2 nurses to achieve a preceptorship role.92

Dr Falconer was critical of the proposal to increase the ratio of Level 1 positions proportionate to Level 2. In his view it was very important in the correctional health environment to maximise the proportion of Level 2 nurses as they are required to work with a greater degree of independence and autonomy than their nursing colleagues in mainstream health services.93 I would endorse that view. While the Prison Hospital continues to accommodate forensic mental health patients, the solution for restoring nursing positions lost since 1995, is in my view not to increase the number of Level 1s proportionate to Level 2s, but to increase the number of nursing positions with an equivalent proportionality. Given the special skills required in the prison hospital, I consider it appropriate to fill the vacant nursing positions with permanently appointed rather than casual appointments and have recommended accordingly.

Nurse staffing shortages

Most nurses identified the need for additional numbers of nursing staff to be employed and generally supported a second nurse in the in-patient area in the Prison Hospital and a nurse at the HRC at night. I have reached a conclusion that the current health staff establishment is insufficient 36 to provide the range of services required by prisoners and forensic mental health patients. Further the capacity of nurses to create a therapeutic environment and improve health care is reduced as nursing numbers have not increased in line with the increased prison population.

I acknowledge that since August 2000, substantially increased nursing resources have been provided to the Risdon Prison Hospital by DJIR. An additional eight nursing positions in the Prison Hospital were provided, in direct response to the deaths in custody. The total estimated cost of this initiative will be approximately $890,000.00, which is made up of additional salary costs of $770,000.00 and overtime of $120,000.00.

The strategy adopted by DJIR to provide the additional nursing resources has been to employ nursing staff through an employment agency, and to supplement nursing resources overall by increasing overtime and the employment of casual staff. This strategy will continue until the end of the current financial year, as vacant positions for permanent staff have only recently been advertised. This approach has been necessitated by the difficulties in recruiting nursing staff to the Prison Hospital.

There has also been a change in the management structure in the Prison Hospital, with the necessity to recruit two management personnel on secondment from the Department of Health and Human Services. In March 2001 a Clinical Nurse Consultant was appointed and in April 2001 a new Director of Nursing was appointed. As well, in December 2000, a Project Officer was appointed to assist in the provision of advice and planning on a proposal to transfer management of the Prison Hospital from the Department of Justice and Industrial Relations to the Department of Health and Human Services by 1 July, 2001.

Further, in recognition of increased inmate needs, additional resources have been allocated by DHHS to the Forensic Mental Health Service, including: · a further 1.5 psychologists · one new prison-based social worker · a new position of part-time (three days) occupational therapist · a new full-time team leader · a new full-time intake and assessment position · two project workers to assist in the development of policy and protocols in the community and in the prison · one court liaison officer.

Strategies which were in use at the time of my investigation to address reduced nursing numbers, such as increasing the time inmates are locked in cells to about sixteen hours a day, are counterproductive. I would suggest that a failure to create a therapeutic environment for health care professionals is likely to impact adversely on job satisfaction and morale.

The redeployment of the second nurse from the Risdon Prison Hospital Inpatients to the HRC, was said to have breached an enterprise agreement, which provided for two nurses in the round house, at the central control area, at all times during the day shift. A number of those interviewed were critical of the decision to take one of the hospital nurses from central control as this left two nurses in separate parts of the hospital during the day.94 The general view was that there should be two nurses in the inpatient area during the daytime and another one at the HRC at night.95 It was generally considered desirable to have a nurse on duty at the HRC twenty four hours a day.

The nurses acknowledged that the HRC needs a nurse,96 but said that the opening of the HRC had not reduced the Prison Hospital workload.97 At night time there was only one nurse responsible for 37 every prisoner in Tasmania and the nurse on duty had nobody to confer with should a medical emergency occur. A number of those interviewed considered that this left that nurse in the central control of the hospital at risk, particularly during week ends or at night even with the after hours "on call" arrangements.

Two of the three additional nursing positions allocated after the 1995 review were lost by relocations and changes implemented and as a result there was no coverage for the award meal breaks for the nurses.98. Nurses said that there was a definite necessity for two nurses in Inpatients during the day to ensure liaison with forensic services, to assist the doctor and undertake the variety of things needed to ensure the continuity of care during the day including meeting with the psychologist, psychiatrists, assisting the doctor on his rounds, and observing those on the “at risk” categories. Dr Beadle’s belief was that the health services delivered through the morning medical parade, could be handled more efficiently with two nursing staff on duty.99 Arrangements had also been made at Dr Jager's request for a liaison nurse to attend Dr Jager's FMHS clinics, to facilitate the communication of relevant information about patients between the FMHS and hospital.

Nurses said that there was little time to take patients out to either the East wing or South wing gardens, or to engage in therapeutic programs or recreational activities, as even if there was only one person sick in a cell or at risk and under observation, then these patients couldn't be left in order to take others outside. The staffing levels at the time of my investigation, had altered and not kept pace with the increasing prison population.100 There was criticism of the high patient - nurse ratio.101 The 12 hour shifts did not overlap and there was no provision for a de-briefing or changeover time. Daily reports were filled out every day, risk categories were checked when the nurse first came on duty and were monitored accordingly, and the patients condition reported in their progress notes. There was no documentation that observation checks of cells had been completed at specified times. There were no alarms, either in the hospital or main prison cells, and the cell doors had a relatively small observation window. These issues are dealt with in detail in Dr Falconer’s report and were also referred to by the coroner.

There were concerns that nurses were also expected to perform non clinical tasks.102 There were criticisms from nursing staff that the casual staff were employed to come in and do filing and administrative tasks, yet sometimes shifts were not covered and nurses were called back on overtime.103 Nurses regarded the purpose of an "on call" pool as relieving and replacing absent nursing staff, and only undertaking administrative tasks as a secondary function. I would support the need for additional staff to undertake clerical functions and endorse Dr Falconer’s recommendation that a clerical position or an additional enrolled nurse position be introduced to perform clerical duties currently undertaken by nursing staff. The consultant’s recommended a review of nursing positions and levels. I endorse that recommendation and have concluded that additional nursing staff is required. Commensurate with that, an additional budgetary allocation will be required to implement this recommendation for an increase in nursing staff numbers.

The nursing roster

The roster was designed so that two nurses with complementary medical and psychiatric qualifications could be rostered on during the same shift and for staff to work with different colleagues but, due to the reallocation of a nurse to the HRC and reduced staff levels, this complementary pairing and the staff rotation did not operate to the degree indicated.104 An example of a nursing roster was sighted which showed a number of deletions and amendments and the nurse commented that it was difficult to follow and easy to make mistakes. While minor, I would suggest that a computerised schedule would be more appropriate and recommend accordingly.

38 An assertion was made by one nurse that some staff were consistently rostered on the night shift to the exclusion of others, and there were "times when people have been working fourteen and sixteen days straight.” If so, that is not good practice and should cease.105 I recommend that Nurses not be rostered on duty on a more frequent or continuous basis than indicated for medical officers in the AMA National Code of Practice and that roster be audited or checked periodically.

Allowance under the award

In the past an incentive or environmental allowance was paid. This has been retained in the award but is now paid to only some employees. These employees would regard its removal from the award as an erosion of their working conditions, as it was originally a condition of their employment. I accept that. However, the majority of nurses who did not receive this allowance regarded this as inequitable. It would be preferable that such anomalies did not exist.

Nursing competencies at the Prison Hospital

Following the death of Timothy Hayes, the DJIR commissioned a review which was undertaken by Ms Coral Muskett. Ms Muskett made a number of recommendations, pertinent to nursing competencies and their application to patient/client management and care at the Risdon Prison Hospital.106 Ms Muskett summarised some of the ANCI Competencies and the application of these practice standards to the Risdon Prison Hospital.

The competencies that appear inconsistently applied and largely unmet were those relating to establishing, maintaining, reviewing and evaluating patient problems and care delivered in the form of a management/nursing care plan (ie. Competencies 15-17). She reported that there is very little evidence of any care planning for inmates outside of the actions specified under the precautionary categories.107 She considered that the absence of care plans contravened the regulatory practice standards under the Nursing Act 1995 and that the ongoing documentation and care management needed to be improved.108 Ms Muskett also recommended that standardised assessment tools should be used to monitor ongoing progress both in relation to patients with mental illness and others,109and that the use of these tools would both add a degree of rigour to ongoing observations and give a very clear indication of ongoing changes in inmate mental health status.

A number of those interviewed, the consultants and Ms Muskett were critical of the deficiencies in the medical record keeping. Ms Muskett reported that gaining a quick insight as to where an inmate/client is at from the current methods of record keeping is extremely difficult. She said, for example, it takes quite a lot of concentrated reading through many pages of often barely legible progress notes to determine what is happening with an inmate/client and that reliance on progress notes, as a primary source of information, is also not always particularly accurate unless there is a degree of rigour in writing regular entries. In her view the progress notes needed to be augmented with a summarised version of care, that is, a care plan. Some nurses also acknowledged that they had ceased keeping detailed notes as they did not believe that they were referred to as part of the patient’s care.

The medical record content should be in accord with that advised by the Australian Council of Healthcare Standards (ACHS) Accreditation Guide.110 I have accepted and endorse Ms Muskett’s recommendations and I have incorporated these into the recommendations I have made.

Protocols and Standing Orders

Several nurses interviewed were critical of the absence of policies, procedures, guidelines and protocols as they considered that the absence of these left them uncertain as to their accountability 39 and the extent of their jurisdiction and whether their actions were in conformity with prison regulations and their legal liability.111 For instance, the uncertainty as to whether nurses could leave their post to attend an emergency in the main prison was said to have been created by the reduction in nursing staff levels.112 Nurses were uncertain of their legal accountability should they not respond to an emergency call, or if they did, their responsibility if a medical emergency occurred in their absence. One nurse said that only remandees in the HRC were the responsibility of the nursing staff but not those in the police holding cells, some 20 feet away.113 It was said that the previous manager of the prison apparently agreed to change the prison regulations, so the nurse could leave the area and respond to an emergency call without breaching regulations114 and, in the interim, the DON instituted an after hours "on call" arrangement. This was not considered satisfactory because of the delays in responding.115 In my view, the “on call” arrangement is not satisfactory and the issue has only arisen because of the reduction in nurse staffing levels.

Concern was expressed at the lack of in service training including matters relevant to a custodial environment116 and instructions and protocols defining their responsibilities, obligations and practice. It is the responsibility of the DON to facilitate in service training, develop and promulgate policies and protocols, and address key areas of maintaining competencies which relate to the nurses’ legal responsibility and accountability for at-risk patients in a custodial environment. A greater emphasis needs to be placed on this task.117 Dr Falconer considered that his proposal for the review of the organisational structure and individual positions, together with additional clerical support would help overcome these deficiencies.118 Dr Beadle provided examples of the procedures developed in consultation with Nurse Norris in relation to the Prison Medical Service. The protocols developed to date are of a high standard and reflect community best practice, however most of these have only been formulated in the last year and a half. Accordingly I recommend in relation to procedures and staffing levels that resources be allocated so that the formulation of appropriate procedures and protocols can be undertaken as a matter of priority and promulgated to nursing staff and that staffing levels be maintained at a level to allow an immediate response to a medical emergency.

6.3 STAFF DEVELOPMENT

In service training

All nurses interviewed said that there was a paucity of in-service training and that it should be far more frequent, comprehensive and regular. Some claimed they had requested in-training and development during their yearly assessments but to no avail.119

The CPR skills of nursing staff were generally considered to be inadequate, particularly as several inmates had heart conditions, and an increasing number of inmates were elderly.120 Dr Falconer considered that annual updating of emergency resuscitation skills should be mandatory for all nursing staff and might be able to be contracted in from external providers (such as the Ambulance Services) and conducted on site. Some nurses had sought to redress this paucity of in-service training by attending venipuncture and other courses at their own initiative. Some had been refused permission to attend other in-service training courses.121 There were concerns about the dispensing and management of medications and the need for training to keep up to date and to ensure compliance with the Nursing Board Guidelines. There was a perception that there was a lack of commitment by the DJIR to nursing in-service training. Some suggested that this arose because the nurses are employed by the DJIR and not by DHHS. There was a widely held perception that under the DHHS,122 and a health and medical

40 model, there would be a greater focus on in service training enhancing nursing skills, than under Corrective Services.123 Some nurses suggested that there was a lack of commitment by management to in-service training but the more general view was that it was largely due to budgetary constraints.

However, there were other impediments to in-service training closer to home. In part this was due to time constraints and reduced staffing levels, but motivation and incentive was lacking and morale was low. Nurses were asked if there were slack times in the twelve hour shift, particularly after lock up, where in-service training modules could be given. One person expressed a view that personnel would not be willing to start an in-service lecture at five o'clock.124 In relation to the possibility of setting aside time and accessing material over the internet, nurses commented that they had not been taught computer skills, were not very computer literate, and that they no longer had access to a computer. The CNC Medical, also referred to the difficulty of organising training courses or calling staff in on their day off to attend training.

There was a five day induction provided to nurses which was regarded by those more recently employed as satisfactory.125 Dr Beadle however, was critical of the standard of induction and of the induction process, and with good cause. He gave an illustration of one nurse being inducted by another who had been working at the Hospital for less than a month and had little understanding of the procedures and protocols within the service.126 Dr Beadle considered that a significant procedural outline of the induction processes concerned should occur and those commencing employment at the Prison Hospital be properly instructed. I agree and have recommended accordingly.

Staff exchanges to other hospitals were regarded as beneficial and relatively cost neutral. Nurses affirmed that staff exchanges assisted them in maintaining their nursing competencies, and they regarded the ability to move around to different institutions as a means of bringing their work up to date even in ordinary things like dressings.127

In my view there is a need for more frequent in-service training across a broad spectrum of competencies. Nurses are employed by the DJIR and the Head of Agency and senior managers are responsible for ensuring that sufficient resources are provided so that nurses are given sufficient workplace training to maintain their essential nursing competencies. This requires an appropriate budgetary allocation from government. Dr Falconer believed the reallocation of nursing staff to the DHHS should facilitate improved access to, and accountability for, delivery of training to nursing staff and that, as an interim measure, an additional Level 2 nurse should be appointed at Risdon solely for the purpose of allowing nursing staff to go off line for the purpose of training.128

I endorse this view and have formed an opinion that the in-service nursing training is not sufficient for nurses to maintain essential nursing competencies and skills. Further that the resources allocated by the DJIR have been a factor in the paucity of in-service training. I have accepted and adopted the consultant’s recommendations. The transfer and reallocation of nursing staff from DJIR to DHHS will however not be neutral in terms of its budgetary allocation as the current expenditure is insufficient to provide the training to maintain the competencies of the existing nursing staff. This allocation will need to be increased for DHHS to be able to fulfil this function.

Attendance at Conferences

There was some criticism about a lack of flow-on of information following staff attendance at conferences. It appears that no report, conference papers, staff training or development has followed senior staff attendance at interstate conferences. Such attendance has tended to be

41 viewed by nursing staff as for the personal benefit of those attending, and not as means of enhancing skills for nursing staff generally. A disproportionate allocation of the budget was said to fund one or two people attending conferences leaving little allocation for the rest of the staff.129 Generally the DON and the CNCs were satisfied with their own personal in-service training and development and felt that they were being given the opportunity to be kept up-to-date with conferences and seminars and recent developments but acknowledged that funds available for training for nursing staff were insufficient and the demands on their time meant that they in turn were unable to properly pass on information they had acquired.130

It was suggested that these training sessions declined partly because the DJIR gave priority to the training of new prison officer recruits.131 There was a widely held view that Corrective Services Officers benefited from in-service training as it could give them a greater insight into the nature of mental illness and the special needs of the hospital clientele.132 This is recognised in other jurisdictions.133 The issue is not reducing the training of Corrective Services Officers but increasing resources to provide essential training opportunities for nurses.134

6.4 DISPENSING OF MEDICATION

Various issues arose in relation to the storage and dispensing of medication. These included: · The safety aspects of having the dispensaries in the yards, as opposed to a central dispensary at the Prison Hospital; · The supply system and the absence of stock takes and audits; · The signing of the Dangerous Drugs register by Corrective Services officers; and · The system of dispensing medications at LRC and Hayes Prison Farm.

Branch dispensaries

At the time of my investigation, current practice was that medications are stored in the Prison Hospital, the Women’s Prison and in satellite dispensaries in the blocks. The majority of nurses believed that all the medication rounds should be done centrally through the Hospital and that, for security reasons, the nurses should not be going up into the yards at all.135 Nurses who supported a central dispensary said that this enabled a better assessment of inmates prior to or after taking medication if required. Previously prisoners were escorted to the Hospital to receive medication but increasing prisoner numbers and the amount of movement involved made this impractical. This practice resumed after the 1999 incident, but nursing staff interviewed said that they were under pressure to fit into the custodial officers’ time frames at a time when they needed to check that the correct drug and exact amount was being administered.136 Other nurses had no objection to dispensaries at different locations, providing the safety aspects were addressed.

During the May 1999 incident, inmates broke into the dispensary and raided the medications. This was the third break in that year and became an industrial issue after that incident. The dispensaries were considered to be substandard by virtually all nurses interviewed.137 Some nurses also considered that there were several safety aspects regarding the dispensing and the storage of medication which did not meet occupational health and safety standards in relation to personal safety,138 or were not in conformity with Nursing Guidelines. Mr de Bomford directed the nurses to recommence medicating in the "F" Division dispensary. Some nurses said that part of an industrial agreement with the union was that modifications would be undertaken and that the DON had promised that, within two weeks, he would provide a report on the dispensing of medication in custody. Some nurses said that months had elapsed with no sign of the report, and no change, and that other promised safety measures had either not been introduced or had lapsed.139

42 At one stage there was a proposal to improve safety by putting another entry into the hallway and welding off the area into F yard so F yard inmates could not get into that area at all. This proposal appears to have lapsed.140 The dispensary is still unmodified, and many of those interviewed described it as grossly inadequate. They said that when these concerns are raised with management the standard response is it is an interim measure, or that no action has been taken because of the costs involved.141 There was simmering discontent about this issue, including amongst those nurses who did not object in principle to branch dispensaries in the main prison.

Nurses also said that sometimes they had to wait a while before the custodial officer comes to the gate to escort them and sometimes officers will only escort them part of the distance. Nurses going down to the female division three times a day are unescorted, and sometimes when restocking they are carrying a bag full of drugs. Part of this area is not under constant security and camera surveillance. This raises security concerns as access by road to the Risdon Prison car park is not prohibited.142

Drugs, whether prescribed or obtained unlawfully were a significant problem in terms both of substance abuse and prison violence. While nurses in a prison environment need to be vigilant when dispensing medication to inmates who might attempt to misappropriate the drugs, 143 and need to have regard to their own safety, it is the responsibility of the employer to create a safe system of work and to adopt risk management strategies to reduce drug abuse in prison. The nurses expressed legitimate concerns for their own personal safety and the potential for adverse outcomes should there be another incident or break-in with inmates raiding the medications. The nurses considered that relatively simple, inexpensive measures would enhance security but that a low priority had been given by the DON and prison management to these concerns. I agree that urgent remedial action is needed to address safety concerns and alternative sites for the branch dispensaries in the main prison need to be considered.

Narcotic checks, drug stock takes, supplies and audits

It was said that it was difficult to keep control over drugs issued to three and four different dispensaries, and carried in people's pockets,144 particularly as extra medical supplies are kept in all of those dispensaries, and medications in one dispensary are used when supplies in another dispensary run out. This was one of the reasons given in support of a central dispensary.

At the time of my investigation, there was no system in place at the Prison Hospital for doing drug stock takes in order to do an audit and audits were not undertaken. Most nurses believed that there was not a problem with misappropriation or unauthorised use of medications by staff but said that, apart from Narcotic Substances, there was not a system for checking or reconciling.145 It was suggested that a full-time ward clerk or Hospital clerk, should be employed to undertake some of these drug reconciliation and audit tasks. Records exist in the form of credit notes from Fauldings giving details of drugs ordered and delivered, and there is no reason why there should not be a reconciliation between stocks and these supplies. Narcotic Substances must be stored in accordance with Regulation 22 of the Poisons Regulations 1975 and the DON reported compliance with these requirements.146

It was generally assumed that illicit drugs came into the prison through contact visits, but it was also recognised that medications prescribed could be misused by prisoners and the system for the storage of drugs was not sufficiently secure to prevent misuse by staff, nor was the recording on medication charts timely or accurate enough to be confident that medications prescribed were actually administered to those for whom they were intended. A few isolated examples were given of instances where medication was known or suspected of having gone missing, and rare instances

43 of counselling and disciplinary action taken. These actions were compromised by not having a good audit system. The systems for handling drugs was sometimes lax.147

The CNC (Medical) spent some time ordering and dispensing the drugs for the nurses, fetching these and attending other errands, and going out in the car.148 After hours, if a drug is not in stock, staff call him and he either contacts Fauldings or borrows the drug from Royal Hobart Hospital. He reported that he had done this on numerous occasions. This appeared to be a poor utilisation of his time. Mr de Bomford considered that it might be possible to hand the control of the pharmaceutical supply and audit to either Fauldings or the local pharmacy, who are their current suppliers and that any increase in costs, would partially be compensated for by increased efficiency. I would support a review of this practice and also the broader recommendations of Dr Falconer regarding medication management.149

Dr Falconer recommended that arrangements be introduced to enable a Registered Pharmacist to visit Risdon at least twice a year to provide education to staff and to report on issues such as storage of medication, stock levels, dispensing practice, adverse medication incidents and potential adverse drug interactions.

Corrective services officers signing the dangerous drugs register

Some nurses commented that custodial officers sometimes counter sign the Dangerous Drugs register, although the Guidelines clearly indicated that if there is another registered nurse available, then preferably both registered nurses should sign.150 It was said that the DON, and the two CNCs were reluctant to check drugs and sign the register.151 The administration of medication was sometimes not recorded and one nurse said that days might pass where people forget to sign. If so these practices need to be improved. I have recommend that the Nursing Board Guidelines be followed and only in the absence of a second registered nurse, should a custodial officer or some other responsible person sign the Dangerous Drugs Register.

The administration of medication at Launceston and Hayes

There was general concern expressed by those interviewed that there was no nurse at the LRC, or the Hayes Prison Farm and custodial officers dispensed medication in Webster packs prepared by pharmacists. At Hayes, Prison Farm officers pick up the prescriptions which are then kept in a locked drawer. There was some question as to whether this constituted a legal storage area, and a belief that the system was not a safe system in that mistakes could be made and no medical or nursing staff were present at Launceston and Hayes, should a prisoner have an adverse reaction to medication. Custodial officers had no special training which compensated for the absence of medical or nursing staff when prescribed medications were administered.

Medication Management - predispensing

The female division dispensary at the Risdon Prison was regarded as quite satisfactory, though there was criticism about dispensing from plastic cups. It was said that sometimes RN's will set up the little plastic containers and another registered nurse will come in later and administer the medication to the inmates. If this is so it would seem to breach the prohibition on predispensing.152 Nurses appeared to be aware of the Nursing Board Medication Management requirements, however if nurses are predispensing then this practice should cease.

44 Quality assurance in medication management

The responsibility for medication management falls both on the DJIR, as an employer and as the Agency administratively responsible for the Prison Hospital and “special facility”, and on nurse practitioners. Competency in medication management is the responsibility of the DJIR and the Department, through the DON, should ensure that the mandatory updating of skills used in medication management should be in place in all nursing care settings, including the Risdon Prison Hospital. Medication management is one of the core competencies for nurses. Registered nurses are accountable under law for the management of medication in accordance with legislative provisions. The Nursing Board of Tasmania has issued “Guidelines in Medication Management for Registered Nurses” which stipulates that a registered nurse has a non-delegable duty of care to the client/patient for the accurate health assessment, education and monitoring of the client/patient’s response in the process of medication management.

Quality assurance in medication management for individual nurse practitioners should be supported by audits of the hospital supply, storage and management of medications. In part, this is to ensure that supplies are obtained efficiently, that storage is safe and to reduce the possibility that medications may be diverted for illicit purposes by nurses and others. The DON should develop and make known to staff, as part of a Medication Management Policy, a procedure to be followed in the event of suspected medication diversion/abuse. If a particular medication prescribed by the medical officer or forensic psychiatrist requires nursing staff to have additional training or instruction, then this should be provided.

In relation to the administration of the drug Clozapine, it appears that the nurse from the Registered Centre at the RHH attended the prison hospital on only one occasion for a brief period and only a limited number of nursing staff were instructed. Most it appears were unaware of the Clozaril Patient Monitoring System Protocol (CPMS) nor had they consulted the current MIMS nor fully appreciated the implications or the increased risk of seizures in patients receiving a dosage in excess of 600mg/day or the need for monitoring purposes, to record both the time when the medication was administered and blood taken. I do not consider that this constituted adequate extra training. It is also questionable whether nurses supervising the forensic patient, Laurence Santos, would have been able to provide the close medical supervision and properly observe any adverse drug interactions given that Mr Santos, like other Hospital patients are locked down in cells for some 16 hours a day. After hours nurses also cannot access cells without two custodial officers present and the capacity to observe and check patients through the cell door is, as commented on by the coroner, extremely limited.

There are Nursing Board Guidelines covering situations where verbal orders have been given or where an authorised prescriber has omitted to sign. Regulation 37A(3) of the Poisons Regulations 1975 requires that the authorised prescriber sign the order within 24 hours.153 On one occasion Dr Jager had prescribed the drug, Cogentin, on the basis it was to be administered if required, but had not signed the form and apparently was in Sydney on that weekend. Whether the drug prescribed should have been administered is a matter of professional judgment about which no comment, adverse or otherwise is made. As this treatment related to Mr Holmes, one of the persons who died in custody, whether the purported request was processed and whether an alternative on call arrangement had been made to cover Dr Jager’s absence, was a matter for the coroner.

I have formed a view that audits and better quality assurance in medication management and supply is required at the Prison Hospital including, as part of a Medication Management Policy, a procedure to be followed in the event of suspected medication diversion/abuse. Human Resources

45 should provide advice as to the circumstances in which employees are warned, notified, counselled, subject to disciplinary action or performance assessment, and the procedures to be adopted.154

6.5 OCCUPATIONAL HEALTH AND SAFETY ISSUES

A number of those interviewed commented about occupational health and safety issues. These include the absence of fire drills, the risks relating to the system for dispensing medication, the low staffing levels which at that time left one nurse on the 12 hour night shift responsible for all prisoners in Tasmania, and the stresses associated in working under-staffed in a facility which was both a psychiatric facility and a prison hospital. The nurses in general were deeply concerned and had been adversely affected by the recent deaths in custody.

It was apparent from those interviewed following the deaths in custody, that occupational health and safety concerns and workplace stress needed to be reduced. This probably means that, in addition to crisis intervention and debriefing, some regular, formal supervision and professional support was required. This is necessary both to keep staff ‘sane’ and in turn to ensure that they have the capacity to provide a high quality of service for clients/patients who have high needs and complex health problems.155 I have noted that DJIR provides an Employee Assistance Program through an external service provider, and that this facility was available to, and used by, staff at the Risdon Prison Hospital both at the time of my investigation and since. DJIR also provides a staff counsellor in Corrective Services to assist in dealing with workplace health and safety issues.

Critical incident debriefing or counselling should, in my view, be available if requested or offered if required, and this is now one of the tasks undertaken by the staff counsellor156 Until recently, little had been done in terms of post-traumatic stress disorder counselling or debriefings following suicides, incidents or inquests, for either staff or inmates. Dr McCarthy is to be commended for extending counselling for inpatients following a recent hanging. This should be a standard practice in response to any significant adverse event. Staff involved in stressful situations should be given appropriate follow up support. If there is any question about the manner in which they performed their duties then this is a work performance issue and should be dealt with appropriately, but they should also be given support at the same time. As a general statement, even if an incident is not handled correctly by an officer and corrective action needs to be taken, this does not obviate the need for debriefing or counselling if the incident was traumatic. There are two parallel requirements - the need to minimise workplace stress and the need to ensure that work is performed competently. The focus should be on improvement rather than criticism.

A forensic mental health nurse interviewed described one incident and, having interviewed the police attending the incident, my view is that she ought to have been offered counselling or given an opportunity to debrief following the incident. She alleges that she was offered neither but was reprimanded for being late to the FMHS meeting, and was told if it happened again she could hand in her resignation.157 If such a statement was made, it was ill considered and not good personnel management practice. It is my understanding that there were difficulties in the working relationships and discord between members of the FMHS team which were the subject of complaints to management.158

With regard to the fire drills, one nurse said that staff at the RHH went to fire drills at least once a year but that in the eight and a half years he was at Risdon Prison, he had never participated in a fire drill. He said that one day there was a fire and there was all sorts of confusion in that evacuation. In his view, fire drills should be done on a regular but random basis. I endorse that view and have made recommendations accordingly.

46 6.6 REHABILITATION AND QUALITY OF CARE

The custodial environment of the Risdon Prison Hospital was generally described as not conducive to proper health care outcomes.159 Some nurses felt they were covering physical health, but not the mental health or rehabilitation aspects of inpatient care. The Prison Hospital was viewed by nurses primarily as an institution under a prison management system with a regimented custodial regime, where mental health and medical care came a poor second. These problems were regarded as having been exacerbated by the increase in the prison population, the prevalence of drug misuse, a more complex and diverse clientele with special health care needs and the failure to separate clientele according to their treatment needs. Nurses said that it was very hard to balance or combine the patients physical and mental health with custodial requirements. Some nurses described a desensitization process where their own safety and their own issues became more important than the inmates.160

The suicide prevention strategies and assessments on admission were generally regarded as adequate, but there was wide spread pessimism about their capacity, in a custodial environment under a maximum security prison regime, to care for those at risk. In terms of risk management, at the time of my investigation, there did not appear to be an adequate system of monitoring incidents of self harm, nor a proper risk assessment process other than the categorisation system, and no long term comprehensive client/patient treatment care plans. The procedures for the referral, assessment, classification and management of those at risk of suicide and self harm have been substantially revised and are a significant improvement on those in place at the date of the investigations.161

There was a general criticism that on occasions admissions would be made to the Hospital from the main prison for non medical reasons.162 The use of the Hospital for protection and behavioural management purposes was regarded both as inappropriate and disruptive to long term patients.163

Dr Beadle and others commented that the major focus of the hospital needed to be health care rather than security though adequate security is essential for health professionals to deliver health services in a custodial environment. A number of those interviewed believed that the high security presence, and the focus on containment, was adverse to the health outcomes of the Prison Hospital inmate population. Some staff mentioned the conflict between the security and health care system indicating that this conflict extended beyond the Prison Hospital to virtually every other program. The inherent culture of custodial staff was, however, said to have changed for the better, partly because of changed recruitment and selection procedures.164

Dr O’Brien and Associate Professor Farrell affirmed that the issues and problems inherent in prisoner populations pose enormous challenges for staff.165 They wholeheartedly endorsed Dr Beadle’s comments believing all prisoners should have the opportunity to engage in a range of rehabilitation and occupational programs. In addition, “counselling”, brief or supportive psychotherapy, and other psychological therapies, should be available for prisoners. The decision as to who should run these programs will need to be addressed with Corrective Services and with key health care stakeholders.

Health practitioners interviewed described a situation where inmates in the prison hospital spend some 16 hours daily in isolation in their cells, and the balance of their time in a corridor or small concrete enclosed courtyard. For those under a mental health restriction order the period detained on average may exceed the length of a comparable sentence under the criminal justice system, and years might pass with little certainty as to when the detention might end. Days are passed with little human contact, activity or access to the outside environment.166 Nurses said it was difficult to find time during the day to take inmates out to the East wing or South wing gardens because of 47 factors such as the reduced staff leaving no cover for meal breaks, and the change over of custodial officers’ shifts.167

In the morning inmates are unlocked at 7.30am, and their morning regime consists of a shower, morning medications, breakfast, then the Doctor's parade. Some nurses said that this could be finished by 9.30am or 10.00 m, but it was difficult to predict, and there is little time to engage in activities before lunchtime.168 The inmates are locked up at 12.00 noon and unlocked again at 1.30pm, so staff can have their meal breaks. The change over of the custodial officer’ 8 hour shift at about 2.30pm - 3.00pm also tends to reduce the availability of custodial officers to assist in taking inmates outside. Custodial staffing levels apparently determine the 4.30pm lock down, as the evening meal is served around 4.00pm while the custodial staff is still in attendance, then inmates are locked up at 4.30pm before custodial staff finish at about 5.00pm.

During the sixteen hours patients spend locked in Hospital cells, there is no alarm or intercom system, and inmates attempt to communicate with each other after lock down by lying on the floor and attempting to speak to each other under the gap at the bottom of the cell door.169 Inpatient activities are principally the television and radio, which inpatients provide for themselves. Nurses said that there were no real educational or rehabilitation programs for inpatients. They described a sterile existence where inpatients spent most of their time "just seated outside in their little area, the table tennis area, which is very dank and revolting, and smoke and talk, that's about all." Nurses observed a progressive institutionalisation where "as inmates became unmotivated, the less they want to do it”.

Occupational therapy, activities and programs

It was said that if the lock down regime were eased, inpatients could be involved in suitable activities170 between 4.30pm to 7.30pm, and evening literacy courses and programs could be conducted in the Prison Hospital. Programs designed for the maintenance of daily physical activity,171 occupational therapy172 and intellectual activity,173 were described as minimal. It was acknowledged that the opportunity for inpatients to engage in formal education programs was minimal and this was impeded by the physical environment, the lockdown times and the failure to separate a diverse clientele.174 It was generally considered that if inmates had to be placed in confinement and relative isolation for long periods, it would be better if they had tasks to do and if they had a positive program to follow.175

Annual Departmental reports over the last decade clearly illustrate ongoing concern about the mixing of various inmate groups, the limited scope of treatment programs (for the mentally ill, sex offenders and violent offenders) and the use of the hospital for those who were difficult to place in the main prison. The therapeutic mental health programs were described as ad hoc. Some programs, such as the Horticultural Therapy Program, made progress over a few years only to decline, primarily due to staff unavailability.176

Dr Assenheimer submitted a “Rehabilitation Case Management” model. Her view, which corresponds with the findings of various Commissions of Inquiry into psychiatric and corrective institutions, is that rehabilitation is essential for the reintegration of a person into the broader community this is a factor in reducing recidivism in offenders.

Time spent in seclusion

Some nurses considered that there was little that could be described as a normalization concept in the way long term inmates were managed. Some considered that it would be better for the long term inmates to be accommodated in a separate wing under a different regime with a decent 48 television room where they could sit and relax and make coffee. One person interviewed said the room had about five chairs, one of which is broken, " there's no carpet, it's cold..” Mr de Bomford said that the long term inpatient’s quality of life would improve if the locks from the “E” wing cells were removed and they had the ability to let themselves outside into the gardens. He said that even some medium and minimum security people were in locked cells. He believed that some of the long term people could live more communally and under a less restrictive regime but were still “at risk” in terms of potential suicide. One consequence of fewer nursing staff allocated to the Hospital, is that patients spent a greater amount of time locked in their cells. A comparison was made with RDH, Ward 7, where patients cannot be locked up for periods in excess of that provided in the Mental Health Act and lock up times have to be justified.177

The “special facility” at Risdon Prison

The Prison Hospital is a “special facility” under s.6 of the Tasmanian Criminal Justice (Mental Impairment) Act 1999. The hospital services the entire prison system and provides general medical services as well as mental health assessment, care and treatment. The inpatient facility for forensic mental health patients in Tasmania is within this 25-bed prison hospital. The facility is not a dedicated forensic mental health facility but accommodates the mentally ill who are subject to a restriction order imposed by the court.

Dr Jager is critical of the system in this State whereby those found “Not Guilty” by reason of insanity are subjected to the same rules, regulations and restrictions as persons who have been convicted of a crime. Dr Jager regards the physical premises and the custodial regime at the Prison Hospital as ill suited for a psychiatric facility for those with a mental disorder and this view was shared by a number of nursing, medical and other staff. Dr Jager said that the inpatient facility does not mimic a general mental health facility in that patients do not have 24 hour access to psychiatric nursing staff, their cells are locked as opposed to having an open bedroom door, there are no soft furnishings in evidence, the ambience of the place is noisy and distressing and there are no appropriate time out areas, therapy rooms, recreational facilities or facilities for the rehabilitation of patients including access to educational opportunities and vocational training. Dr Jager expressed a view that “this has created an environment of frustration, stress and despair, for inmates, detainees and staff, alike.”

There is the overarching issue of whether the Prison Hospital is suitable a “special facility” for the mentally ill and whether persons with a mental illness should be accommodated in a prison. The DHHS Forensic Services Review policy document says that: "There is also some evidence that prison based treatment is counterproductive, and that the trend is to treat mentally disordered offenders in psychiatric units or stand alone units external to the prison.” 178.

Dr Jager regards the minimum requirements of the “special institution” as being the separation of psychiatric patients from those who are kept at the hospital for their own protection, security purposes or for suicide observation. Dr Jager submitted that psychiatric patients should have freedom of movement within the facility during a larger portion of the day, and should have 24- hour access to psychiatric nursing staff. Further, that they should not be locked in cells and should be maintained under the guidelines of the Mental Health Act 1996. Dr Jager is critical that there are no designated area for patients with mental disorders to be housed, no group therapy room, no occupational therapy service, no "time out" area and that prison timetables under the prison regime are maintained. For example, patients are locked in prison cells from 4.30pm to 7.30am and again from 12.30pm to 1.15pm every day and if an alert occurs in the main prison, patients are liable to be "locked down" for 24 hours a day. The majority of health practitioners interviewed were critical that there is only one designated psychiatric nurse present during office hours, and on the twelve

49 hour night shift a sole nurse is responsible for all inmates and detainees both at the hospital and in the HRC, and that there is very little separation of patients according to treatment needs. 179

The conclusion I have reached is that the statutory principle under s.7 the Mental Health Act 1996 relating to the minimum interference with civil rights, and the requirement under s.6(a) to provide care and treatment in accordance with the best possible standards while at the same time safeguarding and maintaining the person’s civil rights and identity is not being adhered to. Section 6(b) prescribes an objective to “ensure that the services provided to persons with mental illnesses are equitable, comprehensive, coordinated, accessible and free from stigma and in particular to ensure that standards of care and treatment for those people are at least equal to the standards of care and treatment for people with physical illness and disabilities”. Under the principles of comparable legislation such as the Disability Services Act 1992 principles such as “the least restrictive alternative” consistent with security and safety considerations is not being adhered to. In my view the long periods without activity, the social isolation, the lack of stimulus and the excessive period of time patients spend locked in cells in solitary confinement, is to the detriment of patient rehabilitation. There are also provisions under s.35(2)(a) of the Mental Health Act 1996 which place certain obligations on nursing staff and medical practitioners with regard to patients in seclusion which are not followed with respect to forensic mental health patients who are on suicide observation.

While no direct causal relationship may exist between this environment and suicide, the environment is not detriment neutral nor is it conducive to minimising harm to those who are vulnerable and at risk. In my view, having considered the research on suicide and self harm, it is likely to exacerbate the stressors on those who are vulnerable and increase the potential for self harm.

I have made recommendations intended to alleviate some of these stressors including a substantial increase in the number of out of cell hours spent by inpatients at the Prison Hospital and a greater focus on rehabilitation, including the formulation of individual care plans, the provision of appropriate programs and activities and facilitating community and family contacts which might enhance that persons eventual re-integration into the community. This will require an increase in staff levels in order that such programs can be conducted.

Custodial officers located at the prison hospital

The custodial officers, particularly those who had elected to work in the Prison Hospital, appeared to be caught between two systems, each with its own culture.

Those custodial officers who had participated in the initial basic training program, designed to give them a better understanding of mental health issues, regarded that training as important in defining their role.180 The induction training of custodial officers appeared to be adequate, and officers in reception completing assessment of risk forms appeared to be adequately instructed in this task. There was a general consensus by custodial officers and nursing staff that additional training in general mental health matters was needed by custodial officers working in the Prison Hospital and in the main prison to better enable them to fulfil their respective duties in identifying and managing inmates with mental health disorders who required treatment or who were at risk.

Staff reductions, shift change over times and other duties were given as the primary reasons why custodial officers could no longer supervise some activities and programs, or engage in outside activities with inpatients. Some officers were astute observers and such activities enabled them to better assess the inmate’s general well-being and how they were interacting with others.

50 The custodial officers were also affected by the changes which had occurred in 1999 following the resignations of the long serving Psychiatrist, Senior Psychologist and Welfare Officer. These changes included the appointment of new staff and a new Director of Forensic Services, the relocation of the FMHS to Glenorchy, the reduction in work hours by that Service to the Hospital, the opening of the HRC and the consequent reduction in nursing staff in the Hospital. The perception of a number of officers interviewed, was that their practical daily observations about inmates were no longer regarded by the new Director of FMHS as relevant.181 Many officers indicated that morale was low and expressed a view that communication, co-operation, accessibility and a sense of a shared purpose in the prison hospital seemed to have diminished. But many custodial officers also referred to problems in the main prison, the changing prison clientele, issues with prison management, the lack of resources, concerns about occupational health and safety and security issues, as matters impacting adversely on the prison hospital. These views were generally in accord with those of hospital staff.

In relation to the liaison between the Prison Hospital and the Prison, there was support for the retention of the hospital Unit Manager’s position, previously held by Mr Ken Bain. As the Director of the Prison, and not the hospital or medical officer, had control over admissions to the hospital from the main prison this liaison at a senior level was regarded as useful. The Hospital appeared to be regarded as the only area where the concept of unit management had been relatively successful.

Dr O’Brien and Associate Professor Farrell considered that the custodial uniformed environment and prison regime mitigated against the ability of the health care professions to create a therapeutic environment. Their view was that the Corrective Services security staff should be withdrawn from the hospital. This recommendation is feasible if a separate psychiatric facility outside the prison system is established for the mentally ill and a separate Personality Disorders Unit is established within the prison for inmates with severe personality disorders. On this basis I accept and endorse their recommendation that Correctional Services security staff be withdrawn from the Hospital premises and that internal security be a function of the nursing staff providing that safe and secure systems are in place to ensure workplace safety for health practitioners.

Ambulance transfers and medical emergencies

Some corrections officers were critical of the lack of security consciousness by hospital staff, and gave valid examples of a disregard or ignorance of security requirements. Conversely there were instances where security measures delayed a response to a medical emergency and the issue is finding the right balance between custodial security requirements and urgent medical care. A custodial officer described how he found a prisoner hanging in a hospital cell. He was able to access the cell immediately because the final lock down had not occurred and the keys were still at the hospital. Had this occurred after lock down this prisoner may not have been able to be resuscitated. Obtaining the keys from the main gate can result in a delay of about 5 minutes before the hospital cell can be unlocked. Nurses and custodial officers estimated that it may take anywhere from three to fifteen minutes (in a worse case scenario) to obtain the keys.182 This delay is critical in responding to a suicide attempt or other medical emergency.

Various reasons were given for the decision to keep the keys at the main gate.183 Custodial officers with many years experience at the hospital, appeared to regard the previous system of keeping the keys in the hospital as satisfactory, and suggested that the keys could be retained in a safe or glass emergency box which if broken would be linked to an alarm to the main jail. Custodial officers and nurses accepted the rationale behind the Standing Order requiring two officers be present before a cell is accessed but others had concerns about the delay in an emergency.

51 From the nurses experience, a diversion or incident in one part of the prison meant that it was very unlikely that custodial officers could assist in a medical emergency in the prison Hospital. It was also said that sometimes cell access to administer basic medical treatment had been refused at night time on the grounds that the Prison had not had staff available to attend the hospital and provide the second officer required by the regulations.184

There was a concern that security requirements sometimes prevented a proper response to a genuine medical emergency, for example an ambulance escorting a prisoner to the Royal Hobart Hospital should have an accompanying escort. There was criticism of the potential for major delays if an inmate needed to be transferred to the Royal Hobart Hospital by ambulance if there were insufficient custodial officers on duty to escort the patient in the ambulance. Nurses said that ambulances had been turned back in the past.185 There was a general criticism by nurses that non- medical people can, by phone, decide whether an inmate should be transferred for medical treatment.

This criticism was put to the prison management in order to ascertain the current ambulance transfer arrangements. Mr Graham Harris, the then General Manager of the Risdon Prison, referred to the 1997 Direction.186 The Direction clearly provides that the Call Officer’s permission is not required in a life threatening situation or an emergency, and the escort is to proceed as expediently as possible, with due consideration to security protocols. Mr Harris advised that the senior nurse on duty will contact either the Operations Chief or Senior regarding the nature of the medical emergency, and will advise the prisoner’s name and any other relevant particulars. The Operations Chief or Senior will arrange for custodial staff to attend the Prison Hospital or the location of the medical emergency and if this has occurred after hours, the Operations Senior will contact the On-Call officer to advise him of the situation.187

Mr Harris stated that Custodial staff attend to the request of the senior nurse for an ambulance, and that he was not aware of questions to nurses about the person’s medical treatment, or “of an ambulance/s being turned away by any person once called”. This was supported by the Operations Manager, Mr Jones.188 However it is apparent from the Coroner’s findings in relation to the death of Mr Fabian Long, that contrary to an instruction by nursing staff, “no ambulance was ever called to attend Fabian”.

It was said by Mr Harris that in most cases escort staff can be redeployed from within the Complex and one Custodial Officer accompanies the ambulance with, if possible, another officer in a prison vehicle. The DON was invited to provide details over the past five years of delays in ambulance transfers of prisoners to the RHH in a medical emergency, but did not provide it. Given the paucity of adequate documentary records, the verbal reports of Dr Beadle and nursing staff provide the main basis for this assertion but I have also taken into account the findings of the Coroner in relation to Mr Fabian Long and two incidents during the course of this inquiry. In one incident a cell extraction was said to have taken priority over providing an escort in a medical emergency.189 An internal investigation was conducted by prison management and, while not conclusive,190 indicates that there are still circumstances where genuine medical emergencies have been poorly handled. Another instance was reported which alleged that prison management had refused to allow the transfer of a prisoner to the RHH, despite the recommendation of the clinical nurse on duty and the DON. This involved a suspected opiate overdose. Reportedly the senior management at the prison that day would not allow the prisoner to be transferred. Dr Falconer has commented on this incident in his report and it is also referred to in the Risdon Prison report.191

52 Staff also advised that between a quarter and a half of all external appointments to the RHH recommended by the VMO are cancelled due to custodial escort being unavailable. Dr Beadle was also critical of these cancellations but submitted that these estimates of cancellations were over estimated.192 Whereas during 1999 they may have been as high as 15% this has significantly reduced. He did however comment that the RHH appointments are often made to suit the availability of security for transporting prisoners rather than clinical urgency. I have endorsed Dr Falconer’s recommendation that the cancellation of external medical appointments due to unavailability of escorts be reviewed and addressed.

6.7 SUMMARY

The Prison Hospital accommodates a “special needs” population with complex and diverse health care requirements. It is also a “special facility” used to detain persons subject to a restriction order who are mentally ill. The conclusion I have reached is that the Prison Hospital is not a therapeutic environment and is not suitable as a “special facility” for the care and treatment of the mentally ill. In my view this detention for forensic mental health patients should be provided in a separate secure psychiatric unit designated a “special facility”. Accordingly, but without specifying a location, I endorse the recommendation of Dr O’Brien and Associate Professor Farrell that a separate Forensic Psychiatric Unit be built and located outside the Correctional system. This is consistent with the conclusion I have reached following my investigation. I have considered the time frame proposed jointly by DJIR and DHHS for the construction of such a facility and while mid 2003 is not ideal it is none the less acceptable. In the interim there needs to be a better separation of clientele according to treatment needs and steps need to be taken to create a better therapeutic environment within the RPH and “special institution”.

I also endorse the recommendations of Dr Falconer that Prison Hospital beds be specifically designated as far as possible as Acute Medical Beds, Suicide Observation cells, Long Term Placement cells for prisoners with mental disorder and Inpatients of the FMHS. Beds so delegated are to be the responsibility of relevant professional staff. Dr Falconer suggests that the remaining cells to continue to be used for prisoners with behavioural difficulty and other management purposes. However, in my view, consideration should be given to creating a separate specialist unit for prisoners with personality disorders and the Hospital reserved for medical and psychiatric care and treatment. Those detained in the special facility under a restriction order should be housed in a secure psychiatric facility outside the prison system and similarly prisoners transferred to such a facility during an acute phase of a mental illness. I would suggest that the practice of separation according to safety, security and treatment needs to be the primary consideration but precisely how this is to be put into effect and the degree to which this alters the standard rules applying to inmates with different security classifications, be a matter for those charged with the responsibility of the Hospital in conjunction with prison authorities.

Due to the allocation of a nurse to the HRC and the loss of a position in the change to a 12 hour shift, there were too few nurses in the hospital, and as a consequence the lock up times had increased and the quality of care had diminished. Some nursing competencies were deficient, such as care planning, the failure to utilise standardised assessment tools, and inadequate documentation on medical records. There was insufficient in-service training, particularly in CPR, and a lack of policies, procedures and protocols. I have formed a view that staff levels need to be increased, the nursing positions organisationally relocated to the DHHS, and the proportion of Level Two to Level One nurses be maintained. In addition training for nursing and custodial staff needs to be improved and Protocols and Standing Orders further developed. I endorse Dr Falconer’s recommendation that practice in relation to the management of prisoners felt to be at risk of self harm be formally reviewed and note that there has been a substantial revision by FMHS of the 53 procedures governing Suicide / Self Harm Management. Dr Falconer also recommended a move towards a model of multi-disciplinary management in the least restrictive environment in which safety can be adequately ensured. There would need to be sufficient training and support provided for nursing and custodial staff and would need to be given to the appointment of additional staff to facilitate these changes.

Dr Beadle considered that the induction process was deficient and that the 12 hour shift, combined with the rotation of nurses to different locations, had the potential to restrict continuity of care. Dr Beadle regarded continuity of care and the lack of continuity of care as probably one of the major problems at the prison at the present time, and considered that the 12 hour shifts mitigated against continuity of care for inmates.193 The consultants also had some concerns about the 12 hour shift and considered this should be reviewed. I endorse Dr O’Brien and Associate Professor Farrell’s recommendation194 for reviewing the re-instatement of an 8 hour shift, with a limited number of additional short term shifts to enable suitable and stable patients to engage in occupational and recreational activities and rehabilitation programs. This will be a matter for DHHS following the proposed transfer of the management of Prison Health Services from DJIR to DHHS.

Nurses employed on a casual basis were filling five permanent positions in part as a strategy to increase the number of nurses by increasing the number of Level 1 proportionate to Level 2 nurses. I consider that, given the complexities of a custodial environment which is also a facility for the mentally ill, the proportion of experienced nurses at Level 2 should be retained. Dr Falconer considered, and I agree, that the proportion of Level 2 nurses needed to be retained, that professional training needed to be facilitated, that clerical staff be appointed to perform non nursing duties and that nursing numbers be reviewed. I endorse Dr Falconer’s Recommendations.195

Dr Falconer, on page 10 of his report, has referred to the need for a review of nursing roles to clarify an organisational, reporting, and accountability structure in conjunction with having designated beds for psychiatric and medical cases 196 Dr O'Brien and Assoc. Professor Farrell also referred to the role of clinical nurse consultants and the need for these positions to be reviewed.197 The consultants all considered that the nurses should be organisationally reallocated to the DHHS both for reasons of accountability, clarity of reporting, and for an enhanced health focus. I accept and endorse these recommendations.198

There was a criticism of the lack of a nurse at the HRC for the 12 hour night shift and the absence of a nurse at LRC.199 I accept that, due to the increase in the prison population and the intake from the north of the State, the duties at the Hospital had not diminished with the opening of the HRC. Given the delay in the time to respond, there were legitimate concerns about the “on call” system as a substitute for a second nurse in circumstances where the nurse was called into the main prison to respond to an emergency. Nurses were concerned about their personal accountability if an incident occurred when they left the hospital without nursing supervision to attend to an emergency in the main prison.

Health care staff were critical of the delay in responding to a medical emergency at night because the keys were at the main gate. There was also some delay after hours in obtaining custodial staff to access a cell, or to escort an ambulance to the RHH, either for clinical appointments and sometimes for a medical transfer. There was some dispute as to the frequency of these occurrences. In terms of response to medical emergencies at night I have accepted Dr Falconer’s view that this practice needs to be reviewed and consideration needs to be given to having access to keys to cells in the hospital area overnight in case of emergencies. The protocols and communications between the main prison and the Hospital and within the main prison need to be improved to better respond

54 to medical emergencies in the main prison. The system for escorts to accompany prisoners to external medical appointments similarly needs to be reviewed.

There was criticism that the blood screening tests were not facilitated by some prison managers, and the results for vaccination purposes not processed promptly by the CNC (Medical). I have made recommendations that this be improved and that Protocols and Standing Orders be developed to facilitate more timely and flexible delivery of health services.

There were concerns about OH&S issues relating to fire drills, the safety of nurses when unescorted and moving drugs to branch dispensaries, the state of some of the dispensaries, and also about medication management practices. These ranged from a failure to ensure quality assurance in medication management, including the absence of audits and stock takes, pre-dispensing, non compliance with the Nursing Board Guidelines when signing the Dangerous Drugs register, storage at Hayes and the absence of medical or nursing supervision at Hayes200 and LRC. The lack of an audit system compromised taking appropriate disciplinary action, for suspected breaches of medication management. In part Dr Falconer and Ms Coral Muskett’s reports addressed this issue and I have adopted and endorsed their recommendations.

I have recommended that the OH&S aspects of the "F" Division dispensary and other aspects of the branch dispensaries be reviewed to ensure a safer system of work for nurses; that fire drills be undertaken and proper procedures be put in place to cover emergency evacuations from the prison hospital. In relation to personnel management I consider that additional strategies need to be introduced to reduce workplace stress including regular, formal supervision, and professional support and crisis intervention or debriefing when required. Further that Human Resources personnel provide appropriate assistance and advice to the DON and Clinical Nurse Consultants, in relation to the supervision of nursing staff, grievance procedures, setting performance standards, managing under performance and performance assessment, disciplinary matters and the procedures by which employees are warned, notified and counselled.

Insufficient funding is a critical factor underlying many , but not all, of the concerns and criticism made about the operation of the Prison Hospital and health care services. The RCIADIC Recommendation 328 was that “sufficient resources should be made available to translate those principles201 into practice”. The Western Australian Ombudsman, in evaluating the performance of Prison Health Services in that State formed a view that can equally apply to Tasmania. That is that “the Ministry has for a number of years failed to implement this recommendation in practical terms because of the shortages of suitably and appropriately trained staff and adequate facilities; the lack of structured and ongoing health education and preventative strategies and regular health reviews for certain prisoner groups.”202 I have reached a similar conclusion.

There has been an agreement by government in principle that the responsibility for the Prison Hospital will transfer from DJIR to DHHS pending agreement as to the allocation of funds and other issues. The current DJIR budget is insufficient to fund the requirements of the Prison Hospital and Prison Health Services. Underlying the systemic failures identified is this resource issue. Without additional budgetary allocation the capacity of DHHS to address systemic failures will be severely compromised and will be ongoing. This is a critical matter for government to address.

I have reached a conclusion that there has been a failure of effective long term planning, and an inability to translate principles into planning and planning into practice. The problems represent a systemic failure which finds its expression in virtually every aspect of the Prison, the Prison Health Services, the Hospital and the special facility for the treatment of the mentally ill. Dedicated staff working in this environment are stressed, and acknowledged that their capacity to achieve positive 55 health care outcomes in the current environment is substantially compromised. In my view this created a conflict between their professional background, as health care providers, and the failure in their particular workplace to achieve the outcomes one would expect in a health care setting. The deaths in custody had deeply stressed some staff. Some felt demoralised including some nurses who had resigned in part because of their perception of the difficulties in the work environment and in achieving health care outcomes. Other OH&S issues such as fire drills were virtually ignored. The DJIR needs to review all OH&S concerns as a matter of priority.

In addition to my earlier comment that the budget allocation to the Prison Hospital and Prison Health needs to be increased in order to address the systemic failures which have arisen. I am of the view that the Prison Health Service should have a discrete budget and greater internal control over the allocation of these resources subject to the broader policy objectives of the DJIR and DHHS. Both departments accept this in principle and the Prison Health Service will receive a discrete budget when DHHS takes over management of the Health Services at the Prison on 1 July 2001. DJIR advise that the Prison Service receives annually an appropriation from the Department of Justice’s global budget allocation. At least since the introduction of the Financial Management Information System on the 1st July, 1996 there have been a number of distinct cost centres which form part of the Prison Service. The Prison Hospital was one such cost centre. Each cost centre was, and continues to be, apportioned a percentage of the appropriation made to the Prison Service. It is the responsibility of the cost centre Manager, in the case of the Prison Hospital this is the Director of Nursing, to manage that allocation within the confines of the amount that is provided. The Prison Hospital’s allocation is entirely for the purposes of hospital and nursing expenses, both employee related and administrative. All custodial expenses are met out of the Risdon Prison Maximum Security allocation. The Director of Nursing has total control over where the funds appropriated to the Prison Hospital are spent and must certify the correctness of invoices prior to them being processed for payment.

56 7. THE RISDON PRISON MEDICAL SERVICE

7.1 THE ROLE OF THE PRISON MEDICAL OFFICER

The Prison Visiting Medical Officer (VMO) is appointed by the DHHS and in the organisational structure, reports to the District Manager, SE Region, while for professional purposes reports to the Senior Medical Officer at the Clarence Community Health Centre. Dr. Beadle attends the Prison Hospital and HRC each morning, from 8.00am to 12.15pm Monday to Friday.203 The Clarence Community Health Centre covers the period 12.15pm to 7.00pm and provides an “on call” service after hours. Guidelines exist for the after hours service covering how to contact Clarence and who to speak to and what to ask for. The two clinical nurse consultants are also "on call" after hours from approximately 4.00pm or 5.00pm. Dr Beadle also conducts reviews of the Risdon Prison, Hayes Prison Farm, LRC and the HRC on a quarterly basis.

Dr Beadle’s view is that the Prison Medical Officer position, in addition to clinical duties, has an administrative planning function and a multidisciplinary, educative function. 204 Part of the role of the VMO relates to public health issues, health promotion, preventative strategies (to manage better care outcomes) and contributing to the development of the Prison Health Service. In his view the role of the VMO is central to the ongoing development of the Prison Health Service but that the VMO is not the “gatekeeper” for all health services and the VMO has a generalist function but is not a “general practitioner” within the prison system. Dr Beadle submitted that part of the function of a visiting prison medical officer should be to provide a consultancy and advisory role in relation to overall planning issues.

The advisory and consulting role extended to developing policies and procedures to define how the Medical Services operates. A number of these had been either recently written or revised by Nurse Norris, one of the nurses employed at the Prison Hospital, in consultation with Dr Beadle and were of a good standard.205 Dr Beadle outlined those policies and procedures of the Prison Health Service recently developed or changed and the recently agreed review and referral procedures In his view it is not necessary for all patients to be reviewed by the Prison Medical Officer. He expressed a view that the nursing staff are the foundation of the health care at the prison and it was not always necessary to involve a doctor in that ongoing monitoring and support function, and to do so could be an inappropriate use of those resources. The nursing staff at the prison provide the majority of the health services and referral services for the inmates to gain access to other health services whereas the VMO provides some of the primary medical care, some of the referrals to the tertiary services, and also some other aspects of the prison population’s health needs such as the management of drug and alcohol detoxification.206

Requests for referrals by Inmates

Inmates were critical about the delays in acting on requests for appointments, the prioritisation scheduling inmates for appointments, and the perceived lack of response to some requests.207 Inmates say that if they are not scheduled for an appointment it seems to be presumed that they will continue to submit request forms each day until they are seen, whereas it was reported that some prisoners simply give up. When this was put to Dr Beadle he said that he recognised that inmates would benefit from feedback on requests for health service and in response had drafted a new request form, so that inmates would be notified of their appointment time.208 I accepted that the inmates had a legitimate cause for concern and needed better feedback as to whether their requests were being processed. Measures are apparently being taken to address this issue.209 However, in 57 general, there needs to be an improved system for identifying and alerting those responsible to circumstances where vulnerable prisoners are increasingly at risk and that measures need to be undertaken to better ensure their safety and an appropriate response.

In some circumstances a failure to process a request to access a service, might lead to a breach of the prisons duty of care to an inmate if, as a consequence, that person suffers harm attributable to the failure to provide that service. In relation to Custodial Officers processing requests from inmates and others, Corrective Services and the DJIR are responsible for ensuring that officers are aware of their responsibilities and act accordingly. Proper systems and protocols for communicating relevant information must be put in place and referrals, including self referrals, facilitated. Such systems need to have regard to the level of literacy or prisoners and the fact that, if a person is mentally disordered, they may not have the capacity to be sufficiently rational to recognise and initiate a self referral from the main prison yards to the Hospital. I am satisfied that, as at the date of publication of this report, the referral and request system has been revised for all services, including health and FMHS.

There was an issue of the hours for which the VMO was contracted and whether this was sufficient for both his clinical duties and other functions. Dr Beadle referred to the increase in the prison population over the past two years, and the proportional increase in demand for medical attention. He said that the demand cannot be met during the current hours of the VMO. In Dr Beadle's view there is insufficient time for the VMO to perform routine medical procedures and to institute appropriate health screening and preventative health programs within the Prison.210 Routine health assessments should also, in my view, be made for long term prisoners and appropriate funds be made available for this to occur.

On the other hand some inmates requiring surgical procedures are referred to the RHH and Dr Beadle’s view was that surgical procedures that are appropriate to perform in General Practice should be performed at the Risdon Prison Hospital. Dr Beadle estimated that the cost of employing the Medical Officer for additional hours to take on these tasks, would be less than the security costs and hospital costs now incurred in transporting and treating inmates at the RHH. This may be the case. Dr Beadle advised that he was involved in ongoing discussions with the SE Manager of the DHHS and the Interim Manager of the FMHS, in respect of his position within the Health Services as well as other issues related the Prison Health Service, management and operation.211 Dr Falconer also recommended that one option was that Hayes Prison farm inmates could be attended to by a contracted local GP.212

Second opinions or a transfer of treatment

It was suggested by some nurses that circumstances could conceivably arise where a second opinion was either sought by a patient or the treating practitioner. I consider that potentially there are circumstances in which a second opinion or the transfer of treatment to another practitioner ought to be facilitated even if the current practitioner does not consider this to be warranted. Certainly this would not be routine, but in my view it is a right which should not be denied simply because a prisoner is incarcerated or a mentally ill person detained in a “special facility”. On Mr Newman’s file was a note indicating stating why he did not want to be treated by Dr Jager. In circumstances where a patient has formed a view that the professional practitioner patient relationship is unworkable then it is very likely that very little will be achieved and proper consideration needs to be given to what choice a person detained should have.

It is a policy in some other jurisdictions to allow second opinions. In Western Australia the Health Services Policy provides that a prisoner may seek a second opinion subject to the medical officer’s

58 approval if he or she agrees to pay for it and the medical practitioner agrees to see the prisoner in prison.213 Recognising the value of second opinions in appropriate circumstances could also increase awareness that “forensic” medicine is an area of specialisation and reduce the sense of professional isolation that nurses working at the Risdon Prison Hospital indicated they felt.

I would suggest that the rights and responsibilities under Health Charters and formal grievance procedures should not be denied because of the legal status of a person in detention. This raises broader questions of advocacy and independent representation or supervision. It is possibly a matter which could in part be addressed by agreed protocols between the prison and hospital management, the medical officer and Director of FMHS, and the Prison Visitors with the assistance of the Health Complaints Commissioner.

The respective roles of the VMO and the Director of FMHS

In terms of respective responsibilities the FMHS and the Director, Dr Jager and the VMO are in respect of clinical practice matters regulated by the requirements of their professional registration bodies214 and in administrative matters were responsible to the DHHS through their respective reporting structures.215 Dr Jager at the date of the investigation was the responsible medical officer appointed by the Attorney General for the purposes of the Criminal Justice (Mental Impairment) Act 1999. There was some difference as to the parameters of their respective clinical responsibilities. Dr Jager regarded the FMHS as a specialist service providing a consultant service to the Prison Health Service, and considered Dr Beadle’s position, as VMO, and the respective relationships as similar to that of a General Practitioner and specialist. Dr Jager said that while he accepted the clinical responsibility for the actions of the FMHS team, he would encourage the prison medical officer to accept some responsibility for ongoing care in terms of the reviews of patients and the maintenance of ongoing medication.216 Dr Beadle saw the VMO position as having characteristics which differed. In his view the role of VMO had a more generalist function and the relationship between specialist and general practitioner was not as clearly defined within the Prison Health Service, by comparison with other health settings.

An issue also arose during the course of the inquiry as to the extent to which the prison medical officer would take on the ongoing review and prescribing function of another doctor217 Dr Beadle was of the view that the initial doctor should take a significant responsibility for the ongoing prescribing of any particular medication, and that this should continue in the prison system. In essence he was cautious about making a comparison between a general practitioner and specialist and transposing this into a prison health service without qualification.

Dr Falconer considered that there was some validity in Dr Beadle’s position, given his workload and the fact that Risdon Prison is a reception prison.218 Dr O’Brien and Associate Professor Farrell, also doubted that the respective roles and responsibilities of health professionals could be as clearly defined in the prison context as suggested by Dr Jager.219 I have accepted Dr Falconer’s summation and Dr O’Brien and Associate Professor Farrell as a valid comment particularly in the context of prison health service in this jurisdiction. I tend to a view that in circumstances where Dr Beadle has no professional concern about extending script prescribed by another, and this is premised on having adequate time to make a proper assessment, then this should occur but in other circumstance the responsibility for the extension of the script should remain that of the initial prescriber.220 The consultants also were of the view that in normal circumstances there would be an expectation that the visiting medical officer would see stable mental health clients and on occasions extend scripts but the responsibility for on going review would remain that of the forensic psychiatrist.

59 Issues as to responsibility for the care and management of patients have arisen when a patient under the ongoing care of a private psychiatrist, has been detained in custody and admitted.221 An issue sometimes arises when a person on Methadone or other medication is admitted, and a determination required as to whether that person should continue that medication. This has been further discussed between Dr Beadle, Dr Jager and the DON and I understand that the issue has been resolved at least for those on remand and for short term detainees. Inmates who enter prison on the Community Methadone Maintenance Program have that treatment continued.

7.2 SUMMARY

Dr Beadle submitted that the role of the VMO is central to the ongoing development of the Prison Health Service and in part this covers public health issues, health promotion, and preventative strategies to manage better care outcomes in a “special needs” population. He has proposed a prison population Health Survey to better allocate funding and determine priorities in the delivery and provision of health services. I have endorsed this proposal and recommended accordingly.

In some instances examples were given by Dr Beadle of the failure of the prison management to adequately address health issues he had to their attention, including the failure to pasteurise milk from Hayes Prison farm or maintain a sterile food preparation area. These aspects of his concerns I have found to be substantiated and consider that they are examples of defective administration by prison management and ultimately by the Department administratively responsible.

There were other clinical issues such as who ultimately had clinical responsibility for forensic mental health patients. In this respect Dr Beadle distinguished his role from that of a generalist practitioner. Dr Falconer considered that the FMHS should accept responsibility for the supervision of long term stable mental patients, and ongoing prescribing of medication particularly given the visiting medical officers current workload and the fact that Risdon is a reception prison. I accept that the respective professional roles of general practitioner and specialist cannot be replicated in a prison setting to the same extent as in private practice and that, although in some circumstances Dr Beadle may extend scripts and see stable mental health patients, the ongoing review and responsibility is that of the psychiatrist and I recommend accordingly. The coroner’s findings in the matter of Mr Santos should be sufficient to support this recommendation.

There were issues as to the circumstances in which a second opinion might be warranted or treatment transferred to another practitioner. My view is that this is a right which should not be denied because of the legal status of the person incarcerated but such a request needs to be warranted and protocols should be developed to guide the circumstances in which this should occur. There were issues as to the continuing care and management of patients under the care of a private psychiatrist when admitted into custody and the continuation of that person’s treatment. This appears to have been resolved for short term detainees. There were also issues about remuneration for additional work hours arising out of additional responsibilities which were being partly addressed by the DHHS. Additional hours would allow some procedures to be performed at the Risdon Prison Hospital rather than the RHH and in my view additional hours should be provided for the VMO to enable this to occur and possibly contracting a GP to attend inmates at Hayes Prison farm would be preferable to the present system.

There were issues as to medical records and data collection for care and treatment purposes which were the subject of recommendations by the consultants. There were issues as to the responsibility for professional development and the role of the VMO, DON, and Director of FMHS in contributing to this. This included whose responsibility it should be to develop and promulgate policies and procedures governing the hospital and prison health services. I believe that there has 60 to be more emphasis on this and on developing a quality care index and recommend accordingly. With a reallocation of nursing staff from DJIR to DHHS the reporting structure would alter and the primary issue would be ensuring that sufficient liaison occurred between the Department senior management to ensure that the health care services were responsive to the special needs requirements of those in custody.

61 8. FORENSIC MENTAL HEALTH SERVICES

8.1 PERSPECTIVE ON FORENSIC MENTAL HEALTH SERVICES

Forensic Psychiatry

Forensic psychiatry involves the care and control of criminal, dangerous or difficult mentally disordered patients. Forensic psychiatry takes place across a broad range of care provisions ranging from care in the community through to care in controlled environments. Mental health professionals use the term “forensic patient” to refer to any prisoner with a mental illness and, as stated in the consultant’s report, “Forensic Mental Health Services’ is a much broader term compared to forensic psychiatry”.

National Mental Health Strategy

In 1992 the National Mental Health Strategy articulated a national reform agenda for mental health services in Australia in the 1990's but made little reference to forensic mental health. The Report of the National Inquiry into the Human Rights of People with Mental Illness 222 was of national importance in identifying issues relating to the mental health of prisoners. The Second National Mental Health Plan (July 1998) required all Mental Health Services in Australia to make tangible progress in the areas of mental health promotion and the prevention of mental disorders. This major National Strategy included Forensic Mental Health Services. The principles informing the national strategy for forensic health services endorse the basic equitable principle of an entitlement to a standards and conditions of care and treatment equivalent to those provided in the community, and delivered in accordance with international and national covenants relating to forensic mental health.223

Target population

In Australia, the inclusion of people with antisocial and/or psychopathic personality disorders in the forensic mental health population is a major issue for all jurisdictions.

In 1999 a Discussion Paper "Towards a National Approach to Forensic Mental Health” was prepared for the AHMAC National Mental Health Working Group and originated from a 1996 workshop.224 The 1999 Paper acknowledges that since 1996 there have been changes and developments in forensic mental health and identifies issues including the need to which need to reconsider whether the forensic mental health target group should include sex offenders and personality disordered offenders.225 There are issues as to what constitutes the target population for FMH purposes.

It was clear that in 1996 those participants, many of whom represented FMHS in each State, would prefer to limit their clientele to people with serious mental disorders who had committed major offences but by the time the Second National Mental Health Plan issued in 1998 and the Discussion Paper was published in December 1999226 the issue of target groups was being revisited nationally. The draft national policy document identified as a key issue, the boundaries and conflicting priorities between forensic mental health and the correctional system, and between forensic mental health and the general mental health system. It was said that the difficulties inherent in providing a health service within a correctional facility should not be underestimated. A major focus of

62 correctional institutions is secure containment, and in this environment conflicts could arise between correctional administrators and health providers.

This tension between the preventative and support role of mental health services and the provision of adequate medical services to those with severe mental disorders is a core issue in forensic mental health. There is a tension between the medical model of psychiatry (targeted at serious mental illness) and the more holistic view of mental health which is an unresolved policy issue across Australia and it is in this context that the provision of FMHS to the Prison Hospital needs to be examined.

Issues relating to the changes to the Forensic Health Service

A number of issues arise for investigation. Perhaps the key issue is the detention of persons who are mentally ill in the “special facility” which is part of the Risdon Prison. I have investigated the “special facility” and formed an opinion that it is unsuitable as a therapeutic environment for the mentally ill. The report outlines the submissions made and the reasons for reaching this conclusion. The matters I have taken into consideration are the principles outlined in the NMHS, 227 national and international trends towards care provision in secure psychiatric units (SPU) outside the prison system, and the care and management of the mentally ill within the prison system in this State.

The other issues more directly pertain to the operation and delivery of FMHS to the prison system and more particularly to the “special facility” and the Risdon Prison. These relate to the changes made during 1999 by Dr Jager, the newly appointed Director of FMHS, who sought to introduce a new model for the delivery of FMHS, a relocation and changes to the service provided at the Prison Hospital. The issue for this inquiry is whether these changes impacted adversely on the service, the clientele, the prison health services generally and what were the respective roles and responsibilities of Dr Jager and the key personnel in the DHHS and in the DJIR This cannot be considered without having regard to the impact of the main Prison on the Prison Hospital in terms of the ability of the FMHS to provide an adequate service. These issues are referred to later in this report.

In examining the issue of whether the changes to the FMHS left an inadequate service or unmet needs at the Risdon Prison Hospital, or to the prison, and whether the implementation process was flawed it is relevant to establish what understanding existed between Dr Jager, the DHHS, the FMHS team and others, regarding the changes proposed by Dr Jager and how these changes were to be implemented. The changes included the abolition of a full time psychologist position and its reinstatement as a half time position, the relocation, altered staffing levels and reduction in hours at the Prison, the alleged defining of FMHS clientele and other changes which had the potential to impact adversely on those in care. Others were critical of the level of FMHS to the Prison Hospital. Mr de Bomford the DON considered that the prison hospital as a “special facility” should have the same level of psychiatric care as medical care.228

To put these issues in context, the report outlines the 1988 Agreement between the then Law Department and the MHS Commissioner for the provision of psychological services to the “special institution” and Risdon Prison. This Agreement, though amended, was still in force immediately prior to Dr Jager’s appointment in 1999. During the period of the investigation the FMHS team consisted of the Director, Dr Alan Jager, a Manager Ms Lynn Young appointed in late 1999, and a team including a social worker, Mr Colin Harris, a community psychiatric nurse, Ms Sandra Barwick, one full time psychologist, Dr Estelle McCarthy, and one half time psychologist, Dr Elida Assenheimer. The full time psychologist is based at the Prison Hospital whilst the other members of the team are based at the Glenorchy Community Health Centre.

63 The treatment of the mentally ill within a prison environment

I would strongly endorse the recommendations made by Dr Jager, medical and nursing staff in relation to the better separation of patients according to treatment requirements and the inappropriateness of the prison system for the treatment of the mentally ill. I have formed a view that the Prison Hospital, as a "special facility" is not an appropriate therapeutic environment for the treatment of persons with mental illness. Dr O’Brien and Associate Professor Farrell also held this view and made recommendations which I have endorsed.229 In my view persons with a mental illness require a secure therapeutic environment. The physical infrastructure and the prison regime is not appropriate for those who are mentally ill and prison inappropriate for those who, in the criminal justice system, are presumptively innocent. I have formed an opinion that continuing to accommodate the mentally ill in what in essence is an annex of the prison contravenes the draft National Mental Health Strategy. In reaching this view, I had regard to the principles, standards and guidelines enunciated by the United Nations, and incorporated in the Standard Guidelines for Corrections in Australia. I have also had regard to the draft National Mental Health Strategy and Discussion Paper, the principles and objectives in the governing State legislation and underlying the common law duty of care.

The conclusion I have reached is that the mentally ill should be cared for and managed in a secure psychiatric therapeutic environment which is not part of the prison system. The Attorney General has the power to declare part of a public hospital or other suitably secure institution, a “special facility” under s.6 of the Criminal Justice (Mental Impairment) Act 1999 and the creation of a secure psychiatric unit outside the prison system has been considered by both Departments in recent years. I have recommended that the Risdon Prison Hospital "special facility" under s.6(2) of the Criminal Justice (Mental Impairment) Act 1999 be decommissioned, and that a separate secure psychiatric unit be established independent of the prison system and declared a “special facility” for the purposes of that Act. Persons detained under a restriction order should be transferred to such a secure psychiatric unit outside the prison system as soon as practicable. The DHHS and DJIR have indicated that such a facility will be constructed by mid 2003 and I accept that time frame providing that appropriate actions are taken in the interim to improve the therapeutic environment and separation of patients in the current “special institution”.

Prison based psychiatric services

Prison based forensic psychiatric services, are characterised by a security emphasis which was said to be the antithesis of rehabilitation or "humane containment” for the mentally ill. Many considered that a greater separation of the hospital unit from Corrective Services and the prison regime would enhance rehabilitation options by creating a better therapeutic environment. Risdon prison hospital was regarded by one nurse as “primarily a prison and secondarily a hospital”.

There was strong support from health personnel during this inquiry, and from various policy documents, for moving forensic mental health patients out of the prison system into specialist treatment facilities, and for transferring inmates who become floridly psychotic and mentally ill, out of the prison to a specialist psychiatric unit for treatment during the duration of the disorder. For those who did not need to be transferred, hospital staff considered there needed to be some flexibility within the prison system so that a person who became mentally ill could receive treatment, and not be subject to the rigid custodial regime of the prison.230

I accepted the view that a separate secure Forensic Psychiatric Unit would provide a preferable therapeutic secure environment for the detention, care and treatment of the mentally ill, including those on remand or serving a custodial sentence. I have recommended that the psychiatrically

64 disordered offender be excluded from the prison system and transferred to a secure psychiatric unit during the more acute and active phase of their illness, and be returned to the correctional system once their condition has stabilised. This is the same approach as a prisoner who becomes seriously ill and need to be transferred to the RHH or similar facility.

Secure psychiatric units outside the prison system

Many forensic mental health practitioners consider that there are compelling reasons in favour of a psychiatric hospital being the place of detention. These include that by law forensic mental health patients are presumptively innocent of a crime, as they have been found to be mentally ill and should be afforded the same quality of treatment and care as others in the community requiring specialist psychiatric observation and treatment.

The trend, both nationally and internationally, has been to remove forensic service delivery out of the prison system into psychiatric facilities, sometimes integrated with a community psychiatric hospital, and staffed by health professionals. These Secure Units are often built within the grounds of ordinary psychiatric hospitals; share some services, but are autonomous. The trend is to small, compact, multi-disciplinary units controlled by Health Departments, with correctional input being limited to advice and liaison. The purpose of the units is to detain mentally disordered offenders in a therapeutic environment where the treatment philosophy is relatively uncontaminated by custodial issues, staffing is not a serious concern, and follow up treatment mechanisms are already in place.

The 1999 Discussion Paper 231 outlines the wide range of forensic mental health service models operating in Australia. In most jurisdictions, but not in Tasmania, forensic psychiatry is treated as part of the health care system not the correctional system. The recent trend in other States has been to regular, multidisciplinary forensic mental health clinics in prisons, and an appropriately secure forensic hospital operated by a health provider, not located in a prison or co-located with a prison, offering a range of security and treatments (acute, rehabilitation, short and long term stays, transition and discharge programs).

There is a general view expressed in various policy documents, that prisoners who have mild mental health disorders ought be retained in the prison for management, but that prisoners who become seriously mentally ill should be transferred to secure units or psychiatric wards for treatment, at least during the more acute and active phase of the illness. This is in line with the Standard Guidelines for Corrections in Australia which provides that specialised facilities should be available for the observation and treatment of people with mental illness, and that inmates who become mentally ill should be transferred to "appropriate establishments" as soon as possible. Access to forensic services is regarded as a basic entitlement. Many commentators, including Dr O'Brien, believe that governments and correctional administrators have a clear obligation to provide access to forensic psychiatric services and a level of psychiatric care commensurate with the level of care and facilities available for those in the community and that it is the responsibility of Health Departments to fund, provide and support these necessary services. 232

Proposals for the development of a Forensic Psychiatric Unit

The DHHS sought to develop a Forensic Psychiatric Unit at the Royal Derwent Hospital (RDH). This did not proceed partly due to budgetary reasons and partly because it was considered, by some, not to be the best option. The Cabinet decision on 28th June 1999 not to proceed with a Forensic Psychiatric Unit (FPU) outside the prison system, predated the deaths which are currently the subject of the coronial inquests. The decision not to proceed with the FPU was made in the context of the RDH closure and the need to accommodate some ninety patients in facilities which met contemporary therapeutic standards. 65 The DHHS advise that the RDH closure continued to be the focus of mental health facility planning and in the May 2000 Budget session funding from the Capital Investment Program was allocated to fund the final component of this project, namely a short term secure unit within the grounds of the Royal Hobart Hospital.233 The DHHS view is that the need to complete this unit and the RDH redevelopment precluded the immediate development of a Forensic Psychiatric Unit. Since this investigation commenced the planning for a separate FPU has commenced.

Dr Jager was against the proposal for the construction of a Forensic Unit at RDH and urged the development of a Forensic Psychiatry Unit (FPU) in a central location such as the RHH or Launceston General Hospital and advised the Minister of his views on 23 July 1999. The DHHS supports the future establishment of a FPU outside the Prison but submitted that the site not be specified. Without suggesting a site, I regard the accommodation of the mentally ill outside the prison system within a reasonable time frame as essential. Such a development is in accordance with the principles in the NMHS and the Standard Guidelines for Corrections in Australia.234.

The earlier DHHS proposal in my view, had two flaws. First, it retained high security facility for forensic and other mentally ill patients within the prison system,235 and second, it separated medium and low security patients on the basis of their legal forensic status rather than their mental health care requirements.236 Dr O’Brien and Associate Professor Farrell recommended that provision be made for the accommodation of all categories of forensic mental health patients in a new Unit, irrespective of their security status. I would endorse this recommendation and consider that accommodation for those who are mentally ill ought to relate to treatment requirements. At present there is a failure to accommodate forensic mental health patients in accordance with the objects and principles of the governing legislation. The DHHS advise that such a Unit would include both long and short term prisoners, and a range of security classifications from minimum to maximum security. Some will only require short term acute interventions before being relocated back to the prison and others will require long stay accommodation within the FPU.237

Both Departments, DHHS and DJIR, in my view have failed in this respect for different reasons. The DHHS who, in failing to allocate and prioritise resources for a separate FPU, have accepted the Prison Hospital as the “special facility” despite the unsuitability of the facility for the care and treatment of the mentally ill. DHHS have submitted that the shortage of recurrent funding and the absence of any mechanism for determining growth of demand meant that any funds allocated for a FPU had to be found out of the Department’s current budget allocation. They submitted that attempts were made in 1996 to establish a FPU as part of the RDH redevelopment but this was not ideal and was not proceeded with in 1998. The DHHS has made representation about the context in which planning decisions were made and the extent to which their actions were compromised by budget shortfalls. I accept that planning and options were compromised by competing priorities and scarce resources.238

In some respects the DHHS and FMHS were also powerless to improve the conditions for forensic mental health patients at the existing “special institution” in part because, under the Corrections Act 1997, the Risdon Prison Hospital is a part of a proclaimed prison. The physical integration of the Hospital with Risdon Prison required the DJIR to impose a high security prison regime on all patients in the Prison Hospital. Due to the same shortage of recurrent funding referred to above, DJIR was required to maintain nurse staffing levels which led to forensic mental health patients locked in their cells for some sixteen hours each day in effective isolation and in a socially deprived environment. For the same reasons, the failure by the DJIR to provide meaningful rehabilitation programs, recreational and intellectual activities or stimulus, has contributed to an institutionalised environment to the detriment of those in their care. 66 8.2 FMHS IN TASMANIA

FMHS was until recently based at the Prison Hospital however it has been relocated to the Glenorchy Health Centre. An issue for this inquiry is whether as a consequence of the relocation and other decisions about positions, staffing levels, and who constituted the forensic clientele, there was a reduction in FMHS to the Prison Hospital, and if so, whether these factors operated adversely on those requiring care.

FMHS for people in custody includes: · Inpatient care at Risdon Prison Hospital; · Outpatient care at Risdon Prison Hospital; · Outpatient care at Hayes Prison Farm; the consultant psychiatrist and community psychiatric nurse (CPN) providing approximately one session a week; · Secure facilities to observe, assess and provide treatment for prisoners; · A twenty four hour outpatient facility for prisoners and correctional officers who may require emergency psychiatric care; · Observation facilities for prisoners diagnosed as having suicidal tendencies; · Referral to specialist clinics where required and for the ongoing treatment for released offenders; · Psychological assessment for prison based rehabilitation programs; and · Health screening for receptions into the prison system.

The 1988 Agreement for the provision of FMHS to the Prison Hospital

The 1988 Memorandum of Agreement between the Secretary of the then Law Department and the Commissioner of the then Mental Health Services Commission provided that a Senior Psychologist, based at the Prison Hospital, would devote not less than 80% of his working time to the delivery of services at the “special facility” and a second psychologist would allocate not less than 60% of his time.239 The Forensic Psychiatrist, Dr Wilfred Lopes, and the administrative base for the FMHS were also located at the Prison Hospital.

Provision of services as outlined in the Agreement changed over time, but until 1999 clinical services continued to be provided for: · Individuals with a diagnosed mental illness; · People with personality disorders experiencing crisis and extreme distress; and · People not diagnosed as having a major mental illness or a personality disorder but who were distressed and traumatised by the prison situation.

The FMHS psychological services included: · The comprehensive range of “psychological, neuro-psychological and vocational assessment services” (Clause 5)240; · Professional advice and consultation services to the Prison Classification Committee (Clause 6); and · Relevant training for correctional officers allocated to the unit (Clause 7).

In 1995 there was a comprehensive review of forensic and secure psychiatric services which identified community based FMHS as an important element in the development of a comprehensive service delivery model. FMHS were extended to people who were clients of Community Corrections. The Tasmanian Mental Health Services strategic plan was subsequently revised and incorporated those principles formulated in the 1995 Review.241 The widely held perception of the

67 longer serving nurses and members of the FMHS team was that the service from its inception had continued relatively unchanged until around 1995 when the increase in the prison population, a changing prison clientele, and the extension of FMHS to clients of Community Corrections, increased the FMHS workload within the prison.242

In 1998, there was extensive consultation as to service provision but the FMHS core business remained the provision of psychiatric and psychological services to inmates within the prison system. It was agreed, and recorded in the 1998 FMHS Policy Paper, that there was a need to prioritise in order to deliver services more effectively in the climate of overall mental health changes.243

In 1999 there were substantial changes in FMHS personnel due to retirements, transfers and new appointments244 but at that date the FMHS team was a multidisciplinary team consisting of a psychiatrist, 2 psychologists, a social worker, a community liaison nurse and an administrative assistant located at the Risdon Prison Hospital. The FMHS was providing services to a broadly defined clientele substantially in accordance with the terms of the 1988 Agreement,245 as affirmed by the 1998 Policy Review.246 The FMHS Director was clinically autonomous but the line of reporting remained unchanged.247

8.3 CHANGES INITIATED BY THE DIRECTOR OF FMHS

Dr Jager’s appointment and review of the Forensic Health Services

Dr Jager was appointed Clinical Director of FMHS on 8th February 1999. A New Zealand medical graduate, Dr Jager spent some years in general practice before commencing his post-psychiatric training within the Victorian training scheme in February 1994. Subsequently he spent one year within FMHS, Calgary, Alberta, Canada. The consultants expressed a view that by the time Dr Jager took up his position in Hobart, he had been exposed to modern and “best practice” forensic psychiatry. They reported that when he took up his new position in Tasmania, it appears that he did so with “considerable energy and a clear vision for the future”. That is accepted. However Dr Jager did not meet the essential qualifications as set out in the DHHS Position Description, in that he had not yet qualified as a specialist psychiatrist and was still completing the psychiatry training program through the Royal Australian and New Zealand College of Psychiatrists. Up to the end of 1997 and 1998 (as found by the Coroner), his only experience in forensic psychiatry was a period of about 15 months under the supervision of other qualified and experience psychiatrists.

In February 1999, three days after he formally took over the service, Dr Jager undertook a review of the existing FMHS and formed a view that the service fell far short of the national Mental Health Guidelines and was deficient. He articulated a vision for the future. Dr Jager states that, as part of this review process, he made recommendations regarding staffing requirements, implemented internal changes focusing on productivity improvements, and moved the Unit to Glenorchy.248

The key changes in 1999, which potentially had an adverse impact on the Prison Hospital, were the relocation of the administrative base of the service to the Glenorchy Health Centre, the perceived change in the “target population” to exclude those with severe personality disorders, the reduction in hours allocated to the Prison Hospital of the psychiatrist and other members of the FMHS team, the reduction of the second psychologist position,249 the cessation of the Registrar’s involvement with FMHS and a change of the role of the Senior Psychologist with regard to the Classifications Committee and Parole Board.

68 In order to assist in assessing some of the FMHS issues, and in particular, whether the mental health service provision in Prison Hospital was compromised on account of a perceived reduction of service provision, assistance was sought from the consultants; Dr Ken O’Brien, Director of FMHS in South Australia and Dr Gerry Farrell, Associate Professor and Head of the School of Nursing at the University of Tasmania.250

The reduction in psychological services

The DHHS acknowledge that Dr Jager’s review of FMHS, included “requests regarding changes to the staffing profile” and to the position of second psychologist. The advertised full time position for the second psychologist was withdrawn and, following objections, the position was filled on a .5 FTE basis, but based at the Glenorchy Health Centre with short sessions at the Prison. The DHHS approved this reduction in the second psychologist position, despite opposition from Dr McCarthy, other staff and the Health and Community Services Union.251

The DHHS acknowledge that the reduction of one psychologist position by half was agreed by senior management, but with the proviso that the DJIR senior management agreed and other stakeholders were consulted. This consultation process was said to have been abridged by Dr Jager obtaining the approval of Mr Denbigh Richards, the then Deputy Secretary of the DJIR and Director of Corrective Services. While I accept that Dr Jager discussed this with Mr Richards,252 and may have been referred to Mr Richards by Ms Allen, in my view senior management in DHHS and DJIR approved the reduction and accepted the rationale put forward by Dr Jager for the changes. Dr Jager said that a shift in emphasis would allow the psychologist's time to be more focused on clinical assessment and management rather than clerical tasks, stating that this should result in a workload neutral result.253

Senior management in both Departments were aware that the change of location and the reduction in the psychologists position altered the 1988 Agreement but accepted these changes despite the increasing demand resulting from the increase in the prison population and reportedly a more difficult clientele.254 The reduction of this position impacted on the senior psychologist whose tasks were altered and workload increased.255

Dr Jager has stated that he negotiated these changes with the agreement of management in both Departments. From his perspective, the role of the psychology service had altered and evolved since 1988, and it seemed logical that the service agreement needed to be changed to reflect this change.256 I accept that it was logical for Dr Jager to seek to re-negotiate the agreement and review the service model, particularly given his wish to obtain the services of a Registrar and to provide a state wide focus for the Forensic Service. However, I do not consider that there was adequate consultation, or a comprehensive analysis of the level of psychological services required, before the decision to cancel the second psychologist position was made, and only after HACSU involvement was the DHHS required to provide information to justify their action.

The 1988 agreement provided for a “full consultation between the parties” prior to any variation in arrangements. This did not occur in any depth. In my view, Dr Jager and DHHS, ought to have given the Senior Psychologist, the DON, and Dr Beadle an adequate opportunity to make representations on the effect of the proposed reduction in psychological services.

I also regard Mr Denbigh Richards, the Director of Corrective Services as remiss, in that he conceded to Dr Jager’s proposals without discussing the effect with Ms Allen (DHHS), Dr McCarthy, the DON and other health service employees, as to the possible impact of the alteration

69 of the 1988 Agreement on the FMH service delivery to the Hospital and Prison. Mr Richards in his response [1st May 2000] said that his acceptance of the reduction of the second psychologists position to .5 was based on a shared perception between Dr Jager, Mr John Dodd and himself that the 1988 Agreement could be ‘revisited’ and that the changed arrangement was “to supplement an aspect of the Forensic Service which had been relatively less resourced.” 257

The view of a number of those interviewed was supportive of the provision of adequate mental health services in the community but they were critical that this was at the expense of a reduction in mental services to a prison population with a high concentration of special needs. The widely held view was that if there was need in the community for a forensic psychologist, then this ought to have been an additional position and not a reduction of the second psychologist position hours. This is a policy and funding allocation issue, but in my view each agency failed in that they did not undertake a proper analysis of the level of psychological services required at the Risdon Prison and “special facility”.

Limited participation in Classification Committee Meetings

Dr McCarthy, the Senior Psychologist, states that she was directed by Dr Jager to stop attending meetings of the Classification Committee. This constitutes an alteration to the 1988 Agreement258 and to the endorsement given to the role of the psychologist given in the 1993 Neasey report.259 The issue is whether the decision to limit the role of the senior psychologist was appropriate, and authorised, and whether adequate consultation informed the decision making process. It appears that this alteration was arranged between Dr Jager and Mr Richards without prior consultation with either the Classification Committee or the senior psychologist, and without the knowledge of the DHHS.260

The DHHS state that departmental managers were unaware of the change in role of the psychologist in relation to the Classification Committee and that there is no record of any indication by management of support for the change in the role of the psychologist in relation to Classification Committee meetings. The DHHS acknowledge that they authorised the reduction in the second psychologists position by 0.5. I consider that the DHHS should have ascertained the likely impact before agreeing to the reduction as it was both likely to impact on the workload and tasks of the senior psychologist. Further it was also foreseeable that the reduction in psychological services in the face of an expanding prison population was likely to have adverse consequences in terms of meeting demand and the level of service delivery.

Dr Jager also stated that had he been aware of the 1993 Neasey report, then he would have taken it into account when reviewing the attendance of the psychologist at Classification Committee meetings. I accept that submission. I also consider that it is the Department executives, through management, who should ensure that this corporate memory or historical information is available to inform current decision making. In this instance, this was the responsibility of the DJIR. I would regard it as good practice for the psychologist to routinely attend any Classification Committee dealing with inmates known to the Forensic Unit, and to provide advice and written reports as required. The assessment of inmates for classification and planning purposes is essential to the good management of the prison.261

I am satisfied that consultation did occur between Dr Jager and the DJIR management, but not with members of the Classification Committee or the Senior Psychologist. I have concluded that the 1988 Agreement was varied without adequate consultation or a proper consideration of the potential consequences of the variation. In making these changes both Department’s senior personnel ought to have been aware of the impact and some of the potential implications of this

70 reduction in psychological services and if they were not aware, then it was their responsibility to make proper inquiries. I am satisfied that as at about the 21st April 1999 Ms Allen, and subsequently Ms Blackwood, were aware that the reduction in psychological services impacted on some tasks or services previously undertaken by psychological services.262 However it is also clear that Dr Jager’s impetus for reducing the level of psychological services in the FMHS arose out of his desire to have a Psychiatric Registrar as part of the FMHS team.

The position of Registrar

Dr Jager believed that the half time registrar working for FMHS was a funded position.263 He subsequently found out that it was unfunded and it appeared that he had either misunderstood or been inadequately informed as to the current funding and staffing levels.264 Dr Jager considered that the position of Registrar ought to have been funded and in part his revised staffing arrangements were motivated by a desire to have a full time Registrar available to FMHS.265 The proposed reduction was an attempt to arrive at "a cost neutral solution by deleting half a psychologist position and replacing that professional time with 3 sessional psychiatrists”.266

Dr Jager expressed a view that, without a Registrar, there was a critical shortage of medical time available for the care of people with mental disorders involved with the justice system. As a consequence, the FMHS were not able to provide the depth of intervention he believed was required. Further this reduced the time that he, as Director of FMHS and as a psychiatrist, could allocate to the Prison Hospital.267

There was support for the provision of a Registrar. The Community and Hospital consultants considered that when the former Registrar left the Forensic Mental Health Service this resulted in “a net reduction in services.” The consultants regarded the absence of the position of Registrar as a serious issue 268 and advised that they “unanimously and strongly supported the appointment of a register in Forensic Psychiatry”.269 At Dr Jager’s instigation, the RANZCP had accredited a training position for a registrar in FMHS. Throughout 1999 Dr Jager continued to discuss options for the funding of this position with the Department, including by the reduction in psychological services. 270 The Department in turn explored funding from this option and other avenues.271

Dr O’Brien and Associate Professor Farrell also supported the provision of a psychiatric or senior registrar. They state that in Australia, this would be a reasonable expectation for a Director of Forensic Mental Health Services regarding medical staffing. I would endorse that the position of a psychiatric registrar/senior registrar be provided or a suitable arrangement be entered into to provide services of this nature. Further that a sessional psychiatrist, of seniority, be provided to assist the Clinical Director and the FMHS team as part of a system of clinical governance in relation to clinical work conducted at the Prison Hospital and “special institution”.

I also consider that Dr Jager at the commencement of his employment had a reasonable expectation that a position of Registrar would be funded as part of FMHS, and that the lack of a Registrar was a factor in Dr Jager’s motivation for making other changes to FMHS which reduced some aspects of the multi-disciplinary FMHS service, such as in psychological services. I am also satisfied that the DHHS agreed to these reductions in order to fund the proposal for sessional regional psychiatrists.272

Relocation of FMHS to the Glenorchy Community and Health Centre

On 3 May 1999 the administrative base of the FMHS, including Dr Jager and his secretary moved out of the Prison to the Glenorchy Community and Health Centre.273. Dr Jager considered that the relocation was an important symbolic shift for two reasons. First, he wanted to emphasise to the 71 patient population in the prison that FMHS was an outside agency working for the DHHS and not an agent of the DJIR. Second, that FMHS was a state-wide service. Dr Jager states that he discussed this with the DHHS and approval was given on the basis that he accepted the conditions imposed. On 3 May 1999, Dr Jager communicated his acceptance of these conditions to the Glenorchy Business Support Officer.274

The DHHS acknowledge that there had been discussions with Ms Allen, the Southern Manager of Mental Health, but state that these discussions were inconclusive275 and that the move to Glenorchy was not authorised or done with their prior approval. DHHS submits that neither the State Manager of Mental Health nor the Divisional Director were aware of the move to Glenorchy until they received a facsimile which was sent to many areas of the Department informing them of the move.276 Dr Jager states that Ms Allen referred him to the Finance Manager, Mr Rob Leach, to discuss the financial details and arrange for furnishings for the additional offices which include items from Ms Allen’s office at Wyadra. Ms Allen acknowledges that this occurred but said the referral to Mr Leach was to obtain costings and the furnishings were for offices for Dr Jager’s existing sessions and did not indicate approval for the relocation for which she would have obtained a formal authorisation had she been aware. Dr Jager asserts that Mrs Blackwood, the then State Manager for Mental Health, had prior knowledge of the move.

I have concluded that Dr Jager initiated the relocation and had prior, but not necessarily conclusive discussions, with the Southern Regional Manager, Ms Allen, concerning the move. Dr Jager proceeded with the operational arrangements for the move believing that it was accepted,277 or not opposed, and apparently not having been informed that authorisation for the relocation was required from the State Manager of Mental Health or the Divisional Director. Ms Allen knew the move was proposed, but was unaware that there was any date set, and believed that she and Dr Jager were working through the implications for the service prior to a decision being made. The DHHS outlined the difficulties experienced by Managers in adapting Dr Jager’s actions to the expected decision making process of the Department. I accept that Managers may have held this perception but I have concluded that Dr Jager believed that the relocation was authorised278 and further DHHS made no attempt to reverse the relocation partly because it was consistent with or symbolised a move to a community and state wide focus. Dr Lopes states that “The relocation to Glenorchy was probably a very drastic step which left the Prison Hospital bereft of day to day services”. His belief is that the Glenorchy base was already functioning efficiently dealing with community patients but the move was perceived by staff as FMHS not wishing to be involved with Risdon inmates.

It was noted that the relocation of the service to Glenorchy occurred with minimal consultation with the Forensic Services team, and virtually no consultation with the Prison Hospital staff. Dr Beadle said he became aware of the relocation only the day prior to the move and “was unaware of any discussion on relocation prior to that time”. Dr Beadle commented that as at 1 November 1999, he had no knowledge of any written protocols developed by the Forensic team to inform other health staff of the manner in which their team would operate. He said that new admissions might not be reviewed by specialist forensic health staff for a number of days and that this delay in assessment was exacerbated by an existing problem, namely insufficient staff to cover those on recreational leave.279

There was widespread criticism from the nursing staff concerning the lack of information about the relocation to Glenorchy in May which was said to have been compounded by a lack of information about the changes to the delivery of the service. There was not sufficient clarification of what forensic services would be provided, at what times, and who the clientele would be. There was insufficient information initially regarding the referral system, the roles and responsibilities of 72 members of the forensic team, and whether their service would be provided in-house or from Glenorchy.280 The DON said he became aware of the relocation only days before the move and believed that the lack of consultation deprived him of the opportunity to have an input into whether the level of service at the hospital was adequate.281

Dr Jager inferred that because of the need to obtain approval from Mental Health management, he only had approval a few days before the move. However, in terms of the relocation proposal and subsequently the transitional arrangements, I am satisfied that for some period there was a failure by Dr Jager, to communicate his sessional arrangements to nursing staff though it seems these may have been communicated to the DON.282 There was also a failure by the DON to facilitate the new sessional arrangements.283 Frustration was expressed by nursing staff interviewed who reported that they might be waiting for prescriptions for patients to be written up, and would be told that Dr Jager was coming in, only to make another enquiry and find that he had already attended and left.284

The further reduction in hours following the relocation

Dr Beadle commented that there were a number of health professionals, both within the FMHS team and within the prison health service as a whole, who were concerned that the movement of the FMHS team from the prison might result in a lack of support for mental health services at the prison. The view of the majority of nursing staff, the medical officer, both psychologists and many others interviewed was that there had been a reduction in work hours spent by the FMHS at the Prison. Having considered all the evidence I am satisfied that the second psychologist’s position was reduced to .5 FTE, and the psychiatrist’s, social worker’s and community psychiatric nurse’s hours at the prison reduced in part because their hours were reallocated to the community, or in the case of Dr Jager, were reduced to a 0.8 FTE position by virtue of his conjoint appointment at the University. The transfer of the Registrar, thought the position had not been funded also served to reduce the level of FMHS at the Risdon Prison and “special institution”.285 DHHS have undertaken their own analysis and the comparison indicates that there was a reduction in FMHS clinical hours between September 1998 and February 1999 which further reduced in July 1999 and again in January 2000 but, more critically, there had also been an allocation away from the prison to the community.286 I accept that the clinical hours as at April 2000 were higher than all comparisons back to June 1996.

These reductions need to be put into the context where the prison population was increasing and other DJIR facilities, such as the remand centre, required FMHS staff to attend areas outside the main prison. The opening of the HRC led to a requirement for specialist FMHS at the HRC and, on 8 July, Dr Jager arranged for the Community Forensic Nurse to undertake a clinic there on Thursday mornings which reduced the session formerly conducted by the Nurse at the Prison. However, with the increase in the Prison population and about half of the inmates arriving directly to Risdon from the north of the State, the Remand Centre did not lessen the need for this session at the Prison. Dr Jager’s expectation was that this would provide primary and secondary prevention of mental disorders and have an impact on reducing admissions to the Special Institution at Risdon Prison Hospital. Both Departments were aware of this change which was necessary given that just under half of all remandees are initially detained at the HRC.287

Dr Jager acknowledges that there was a reduction in FMHS time at the prison, but believes that the service is in fact more efficient and other factors need to be taken into account including the transition between prison and the community. He said that he increased the psychiatrist time in the community from one to two sessions per week, and while the social worker’s time at the prison had been reduced from a full time position at the prison (to 0.3 at the prison and 0.7 in the community), this in his view provided a better conduit between the prison and community for outpatients, and

73 provided better services in the community. Dr Jager asserted that, despite the very significant reduction in time, the service levels in terms of patient contacts for the social worker have increased in the prison. In his view the reduction has been offset by improved performance and he submitted client statistics which he considered supported his view. The Department contested that these conclusions could be supported by the statistical data.

There was concern that FMHS professional experience within the team was deteriorating. The view was expressed that forensic mental health is a specialised area and that it is preferable that all employees have demonstrated qualifications and experience in the forensic area. It was said that titles - such as ‘forensic’ nurse or ‘forensic’ social worker- were being assumed by staff with no accredited forensic experience or qualification. The consultants made a number of references to the professional training and skills of mainly forensic mental health nurses. I would agree in general that where specialist skills are required, appropriate appointments should be made of suitably qualified staff and skills maintained by training and development. These have been incorporated into my recommendations.

Whether the changes resulted in productivity improvements

Dr Jager believes that as a result of the organisational changes he implemented, there has been a greater focus on clinical work and productivity improvements. In support of this contention, Dr Jager compiled statistics which he believed are indicative of productivity improvements. He compared statistics for the period June to August 1999 with the same period in 1998, and submitted that there had been a 20% increase in individual patients seen at Risdon (129 to 173) and a 5% increase in total patient attendance at Risdon Prison (589 to 678). Dr Jager stated that all members of the FMHS have demonstrated a significant increase in clinical activity. He asserted that patient contact services had been maintained and increased.

The accuracy of these statistics was questioned and further information was sought from the DHHS. The information provided did not support Dr Jager’s contention and the DHHS have responded that the available statistics show a reduction in occasions of service and expressed reservations about the method of determining productivity. In their view the statistics for client contacts in the two periods selected for comparison show a percentage change of -14% at HMP and -33% in the community.288 The DHHS, while expressing reservations about the usefulness of such a comparison to determine productivity, were of the view that the statistics did not support Dr Jager’s contention that his statistics demonstrated a 5%‘productivity improvement’ over the same period.

Table 1: FMHS - Selected Activity Data 1998-99 Forensic (Prison) Community Forensic Clients Contacts Ave Ct/Cl Clients Contacts Ave Ct/Cl 1 Jun 1998 - 31 Aug 1998 166 888 5.3 55 291 5.3 1 Jun 1999 - 31 Aug 1999 173 768 4.4 50 196 3.9 Percentage Change 4.22% -14.00% -17.00% -9.09% -33.00% -26.00%

There was a reduction in expenditure in FMHS in 1999 by comparison with the same period in 1998 but this also does not serve as a basis for maintaining that there were productivity improvements as the reduction in expenditure was due to positions not being filled, or being substituted for part time positions.289 However, although neither the statistics nor the reduced expenditure support Dr Jager’s belief in ‘productivity improvements’, some aspects of the FMHS service may in fact be being delivered more efficiently, particularly the community service and Forensic Outpatients Service.290 Dr Jager sought to further rationalise the Forensic Outpatient case

74 load, and in July 1999 the FMHS Outpatient Service commenced seeing patients by the Telehealth (Videolink) consultations, initially at Launceston General Hospital.291

As stated previously, the principle criticism with the relocation to Glenorchy and reduced hours at HMP was not with the development of a community service model but that the relocation and reduction had an adverse impact on the FMHS at the prison. This was compounded by the position of Registrar no longer being funded, the relocation and the change to sessional attendance.

I have concluded that these changes were not sufficiently canvassed with the relevant participants and were exacerbated by uncertainty as to who were FMHS clients and inadequate information reaching Hospital staff about the transitional and referral arrangements following the relocation. There were deficiencies in the revision of the 1988 Agreement including the level of psychological services proposed by Dr Jager, and accepted by Mr Dodd and Mr Richards representing the DJIR and by the DHHS. The view that I have formed is that the DHHS was aware of the substantive changes and did not prevent them, or accepted these changes once they had been implemented. I do not consider that either DHHS or DJIR gave proper regard to the potential adverse impact of these changes on the Prison, Prison Hospital and “special institution”. For some time DHHS was aware of but failed to address staff disquiet though DHHS has made representations that information communicated at an earlier date, was done so informally to an EEO officer and not until after the death of Mr Laurence Santos was information communicated which gave DHHS management reason for concern. This lack of communication between members of the FMHS team and the Department left those employees to a degree isolated and resulted in an alienation and deterioration in the professional relationships between members of the FMHS team.292

Inmates with personality disorders

The issues as to who should constitute the “target population” for FMHS is a national issue. An issue for this investigation is whether Dr Jager attempted to restrict FMHS at the Prison Hospital to persons with serious mental illness to the exclusion of persons with severe behavioural and personality disorders and if so, whether this was authorised by the DHHS. If this did occur then there is a second issue and this is whether restriction in the target population left a gap in FMHS at the Hospital and an unmet need at the Risdon Prison. This issue, as to what falls within the jurisdiction of the forensic psychiatrist and what might be managed under general mental health services underlies the dispute between Dr Jager, the DHHS and other members of the FMHS team.

Dr O’Brien and Associate Professor Farrell293 state that “FMHS is a much broader term compared to forensic psychiatry”. In their view it suggests a multi-disciplinary approach and an emphasis on the individual in his or her institutional or community based setting together with the provision of more integrated and comprehensive services. “Compared to general psychiatrists, forensic psychiatrists tend to adopt a broader definition of mental disorder. Without question, a personality disordered individual manifesting, eg.; suicidal ideation/behaviour and/or depressive symptoms should not be denied access to forensic services on the grounds that the major diagnosis is within an Axis II rather than an Axis I category. In other words, any co-morbid illness or crisis situation during which psychiatric symptomatology is exhibited, is the legitimate province of the forensic psychiatrist.”

However, they note that there is considerable controversy as to whether or not psychiatric intervention is likely to be of assistance with respect to the ‘core pathology’ (that is the abnormal personality structure in its own right), and given the limitation on resources, they said that forensic psychiatrists tend not to admit personality disordered individuals into specialised psychiatric units. However they considered that it would be prudent to have a consultation-liaison forensic

75 psychiatric service available to such units, as pathology can change over time and a more medical approach may need to be considered. Dr Falconer however set the eligibility criteria lower. He considered that the benchmark as to who constituted FMHS clientele had to be set lower in a prison setting as prisoners did not have the same access to general mental health services as persons in the community. He considered that FMHS should provide assistance with the management of prisoners with personality disorders or behavioural difficulty, either through clinical assessment of individuals or by providing assistance with the development of clinical protocols and guidelines. I concur with his view.

Dr Jager’s view is that the forensic target population he identified for FMHS delivery purposes was in line with the National Mental Health Strategy. However the 1999 Discussion Paper 294 identifies as a key issue the need to reconsider whether the forensic target group should include personality disorder offenders. The DHHS state that the issue of the target population is being examined in depth across all mental health services in Tasmania and elsewhere, and there is a long standing process attempting to define this group and the priorities to be given to each target population. Their view is that Dr Jager’s decision to exclude those not diagnosed as having a major mental illness/“Axis I” disorder from services provided by the Forensic Mental Health Team cut across this process. I accept that there are differing views on the issue as to who constitutes the forensic mental health target population.

The DHHS submits that senior management did not approve any change in relation to what comprised the FMHS target population. The DHHS state that: “It is particularly important that recognition is given to the ongoing work that is occurring within the Department regarding definition of client groups and prioritization of services and that these processes should continue to collaboratively develop a service model for forensic mental health services.” 295 The DHHS say that Dr Jager’s decision to change the service model and restrict access of prisoners to the FMHS to “those with major illness/Axis 1 diagnosis” was never discussed with any of the appropriate managers and that they were unaware of this very significant change until it was brought to Ms Melanie Allen’s notice by FMHS staff in December 1999.

The DHHS advise that the Senior Management Group (SMG) had been considering over the previous year, various drafts of the Forensic Mental Health “Interim Policy Paper: role and scope of the Service” and had not endorsed any changes to that document. They submit that this paper indicates that the debate about client group definition was widespread and there was an inclusive rather than restricted client group. I accept that the DHHS had not adopted a policy position which would endorse the restriction of FMHS clientele to those with a major mental illness and exclude those with severe personality disorder. The DHHS say it “is particularly important that recognition is given to the ongoing work that is occurring within the Department regarding definition of client groups and prioritization of services and that these processes should continue to collaboratively develop a service model for forensic mental health services.” I accept that submission as valid. However, it is less clear whether informal complaints made about the change and reduction in service should have made DHHS management aware that the end result was likely to be a concentration on the “core” business, those with major mental illnesses, to the exclusion of others.296

The national strategy in relation to forensic mental health, placed an emphasis on the prevention of mental disorders and the promotion of mental health in the community. The trend nationally was to remove forensic psychiatric units out of the prison system, to deinstitutionalise, and to place a greater emphasis on care in a community setting and to provide state wide comprehensive and integrated services. In many respects the focus proposed by Dr Jager, of which the changes were part, were in accord with the direction in which the DHHS was moving and had been recognised by 76 the former Director of Forensic Services,297 the former General Manager of Corrective Services,298 and the DHHS. Where Dr Jager and the Department differed was in defining precisely the parameters of the clientele constituting the Forensic Services target population.299

It is clear that Dr Jager believes that FMHS does not have a responsibility for the management of prisoners with severe personality disorders but he said that in practice the FMHS is not limited to those with Axis 1 disorders.300 Dr Jager acknowledged that severe behavioural and personality disorders are listed as psychiatric disorders in the diagnostic DSM-III-R.301 He also acknowledged that a very large percentage of the prison population who have severe personality and behavioural disorders, are disruptive, difficult to manage and may engage in self harming behaviours and constituted a challenge in the prison system, but he believed that the role of the FMHS should be one of secondary consultation, “with people describing the behaviour to us and then us advising on how best to tackle them.. with some input from the psychiatrist.”

Dr Jager said core psychological work is about modifying behaviour. He considered that it was appropriate to have a behaviour program and a specialised unit in the prison, as people with such disorders required hospitalisation. The consultants also supported a separate unit for the management of persons with severe personality disorders and suggested an advisory and consultative role for FMHS. I have recommended accordingly. The consultants also referred to a tension as to the scope and legitimacy of forensic psychiatry and the broader area of forensic mental health and the ongoing issue as to whether FMHS ought to extend to those with severe personality disorders. 302

Dr Jager’s view is that the FMHS diagnostic inclusion criteria are broader than those which are recommended in the national approach to FMHS and that those with severe personality disorders are regarded as not falling within the ambit of FMHS nationally. He sought to define who constituted the FMHS patient population at the FMHS planning day on the 3rd of May 1999 and states there was consensus as to that definition. Dr Jager does not regard those with severe personality disorders as the province of the forensic psychiatrist, and in this he receives some support from Dr O’Brien and Associate Professor Farrell who state that undoubtedly there is a tension as to the scope and legitimacy of forensic psychiatry.303 Dr Jager’s statement however needs to be qualified in that the 1999 Discussion Paper ,“Towards a National Approach to Forensic Mental Health” 304 has identified as a major issue in all jurisdictions, whether the forensic mental health target group should include sex offenders and personality disordered offenders.305

The DHHS state that the issue of the target population is one that is being examined in depth across all mental health services in Tasmania and elsewhere, and there is a long standing process attempting to define this group and the priorities to be given to each target population. The Department refers to the breadth of views that exist within forensic mental health, and that the defining of the target population is an unresolved policy issue across Australia and refers to the tension between the medical model of psychiatry and the more holistic view of mental health. In their view the purported decision of Dr Jager to exclude those not diagnosed as having an “Axis I” mental disorder from the FMHS team cut across this process.306

Dr Jager said that the assumption that the FMHS had in fact restricted its service to Axis 1 clients was a misconception, as people with personality disorders who are “in crisis” are seen by FMHS and constituted one of the larger groups seen. The fact that members of the FMHS team continued to manage inmates with severe personality disorders is separate from the question of whether Dr Jager attempted to exclude this class of clientele. Dr Jager was asked to clarify what he considered characterised a person “in crisis” and therefore the responsibility of the FMHS team. He described this as being represented by significant self harming behaviour, suicidal ideation and acting out 77 behaviour. He described a person in crisis is a person who has a “completely dysfunctional response (to) stressors, perceived or real.”

Dr Jager acknowledged that FMHS had responsibility for the management of prisoners “in crisis” and referred to his memorandum to the DON clarifying that the FMHS would see clients with personality disorder who were “in crisis”.307 This occurred in late in 1999 and I am satisfied that prior to that date, Dr Jager had told members of the team308 and others that the FMHS clientele did not include those with severe personality disorders. Only after the deaths of Messrs Douglas, Holmes and Newman did he extend the scope of the FMHS to those with severe personality disorders and other who were “in crisis”. Dr Jager states that all three were past or current FHMS patients and whatever was the perceived FMHS admission criteria, these patients would not have been excluded. He states that as one of the main roles of FMHS was to provide a consultative service to the prison for individuals in crisis, the memorandum was intended to reinforce that FMHS would provide a consultative service.

The DHHS did not approve of Dr Jager’s definition of what characterised a person “in crisis” and stated that if access to FMHS had been restricted to this definition then there would be legitimate concerns about people falling through the gap, and DHHS would be very concerned if this had been followed in practice.

Dr Jager expressed some criticism that the senior psychologist Dr McCarthy did not terminate or discharge patients with personality disorders once they were no longer “in crisis”.309 In her submissions and interview, Dr McCarthy supported many of the principles and aspects of the FMHS model espoused by Dr Jager. It is clear that the division in clinical practice is precisely at that point as to who constitutes FMHS clientele, and the degree of distress which constitutes a person “in crisis”. The respective accommodation of each other’s interpretations and assessments might have assisted both Dr Jager and Dr McCarthy to better appreciate each other’s viewpoint, however I have taken into account the Department’s opinion that Dr McCarthy’s view better reflects national trends.310 Having had regard to the coroner’s findings, Dr Falconer’s view about service provision and the findings of the investigation, I consider that FMHS should extend its services to inmates with severe personality disorders.

Dr Jager also acknowledged that “there has definitely developed a crack in the service provision whereby people are neither coming within the scope of forensic mental health service or programs and that needs to be remedied.” In his view the FMHS should be available for secondary consultation about management of people who are behaviourally disturbed, but he considered that the Corrective Services should be primarily responsible for the management of those with severe personality disorders. The DHHS also considered that the long term arrangements for the provision of these services need to be clarified and that the consultancy role discussed in Dr O’Brien’s report needed to be explored.. Dr Falconer also considered that FMHS should have an active role in the management of ‘at risk’ prisoners with no diagnosable mental illness. I accept that the precise role of the FMHS service to this category of clientele needs to be defined.

The conclusion I have reached is that the management of persons with severe personality disorders at the prison needs to be improved and has fallen below an acceptable standard. I have concluded that Dr Jager did define the FMHS clientele to exclude those with severe personality disorders and only following a number of deaths in custody did he seek to clarify that the FMHS did encompass prisoners “in crisis”. In excluding those with personality disorders from FMHS and having a narrower concept of what constitutes a person “in crisis”,311 I am satisfied that he limited the scope of the 1988 Agreement and changed the practice and emphasis of FMHS provision to the Prison and Prison Hospital. I am satisfied that there had been no approval by senior administrators in the 78 DHHS, to limit the FMHS target population to exclude those with severe personality disorders. I am satisfied that Dr Jager’s gave a direction to this effect which was in practice largely ignored. I do however consider that pressure to limit the “target population” arose in part out of the service reduction to HMP which the Department approved, the relocation which DHHS accepted and the greater community emphasis, which the Department endorsed.

It is necessary to consider the context in which the changes were initiated by Dr Jager. These changes took place within the broader context of the national mental health strategy and a trend to a greater community focus. Without additional funding to meet this community focus and the position of Registrar, and without compensation to offset the additional session required by the community psychiatric nurse at the HRC, this change in focus invariably resulted in a reduction in service at the prison. Given the increase in the prison population with its special needs, it was foreseeable that this reduction or withdrawal of services would have an adverse impact on the prison population. A proper assessment and evaluation was not undertaken by DHHS or Corrective Services. I regard this as a failure by the respective Departments to those in their care. However I also accept that the DHHS was undergoing very significant problems in attempting to reduce a budget shortfall and that this was a factor in the decisions made.

Referrals to FMHS

The main change associated with the relocation to Glenorchy was that a sessional arrangement was introduced with an "on call" arrangement for urgent referrals. It was generally acknowledged that prior to Dr Jager's appointment, there was an established framework and accepted procedures and protocols for delivery of service. These procedures and protocols were said to have been either ignored or changed by Dr Jager, often without consultation or notice, and that in some instances he had replaced these with "ad hoc" directions. Staff were said to be sometimes confused about what procedures, if any, they were meant to be following. There was said to be very little communication between Dr Jager, nursing and custodial staff.

Prior to February 1999 the FMHS received referrals from many sources. The Medical Officer could refer as well as Custodial Officers, Programs staff, and nursing staff. Inmates in the main prison could request a referral for a medical or psychiatric appointment. Under Dr Lopes there was a readiness to respond to a diverse range of problems/disorders rather than on purely psychological impairment. Dr Jager sought to rationalise the referral system and base the treatment and management of patients on strict psychiatric criteria and referral protocols.312

Various memoranda, referred to Dr Jager’s sessional attendance at Outpatients, Inpatients and the Remand Centre.313 On 1 April 1999 he advised that a written referral from a member of the nursing staff to FMHS was required in order to consider and prioritise the referral. The team was directed to only accept referrals from the Medical Officer or nursing staff. All other referrals were returned to the DON. The referral protocol was attached to the memo.314 The protocol indicates that the referral can be by Inmate request, Reception Screening, Nurse Initiated, or Prison Medical Officer Initiated. If a corrections nurse suspects a mental disorder, the nurse or doctor completes the referral and places it in the forensic in-tray.

A number of nursing staff interviewed said that they were told to accept only referrals relating to ‘Axis I’ disorders and that referrals were being returned marked ‘inappropriate’. There is some dispute as to whether and how often this occurred, or whether referrals were returned as coming from Custodial Officers or returned because they were not in accordance with the protocol. Of 531 referrals Dr Jager says that only nine were sent back to the referrer for further information. The CNC Psych commented that once he had forwarded a referral he did not receive a report back. Dr

79 Jager said that he had scanned his referrals for 1999 and did not find a single referral nominated as coming from the CNC Psych but this might be because the referral is listed as, for example, ‘nursing’ rather than a specific person. I accept that this was probably the case and under the revised protocols recommended all referrals would be seen by the CNC Psych.

I am also satisfied that as at the date of publication the referral process for all referrals has been altered, as has the suicide/self harm management, and referrals on behalf of prisoners can be made via medical, nursing, welfare, education and custodial staff through the Corrective Services “Consultation Request/Treatment Record Form”. DHHS advise that FMHS accepts referrals from all staff in the Prison Services, including the Remand Centre and Women’s Prison. The intake and assessment process has been reviewed and a new position of Intake and Assessment Officer has been created. This position is responsible for receiving and assessing all referrals in a timely manner and taking the assessments to the morning team meeting for discussion and allocation of a case manager for ongoing treatment. FMHS accepts primary responsibility for the supervision of long term stable mental health patients. It is everyone’s responsibility to monitor patients and report observed changes to the FMHS team.

Nurses advised that in an emergency they would have no hesitation in using the FMHS “on call” system and contact number, and they were generally aware of the procedure to be followed regarding referrals and urgent requests. There were mixed responses as to whether the "on call" system was adequate for responding to the mental health needs of persons outside these sessions.315 In general, nurses believed that there were unnecessary waiting periods before a session was available, and they questioned the reasoning for basing forensic psychiatric services outside the prison hospital when the hospital is the designated "special institution" for forensic psychiatric patients who are subject to a restriction order. Some nurses said there was difficulty in getting a same day service for medications. They believed that a degree of professional support had diminished with the re-location of the service.

There were concerns expressed about delays in assessment by Dr Jager. Some nurses said that two or three days could elapse before a patient on category A was seen by Dr Jager and as a consequence of this, and the failure to have a second full time psychologist, an increased work load had fallen on the senior psychologist, Dr McCarthy. There was an unresolved issue at the date of the investigation as to whether a psychologist could assess and categorise persons at the lower spectrum of suicide risk, or whether this was the role of psychiatrist.316 This has been rectified as at the date of publication by the FMHS revised Suicide / Self Harm Management Procedures.

Dr Beadle also reported delays in FMHS assessments. Dr Beadle commented that the paucity of procedures and protocols explicitly explaining to nursing staff when to access mental health professionals in relation to admissions, was one of the reasons for the difficulty of nursing staff not contacting these various health professionals.317 Further that such protocols and procedures would obviously have been of benefit particularly when there had been a change in senior staff within the FMHS, with the expectation that service delivery and operational factors within the service would change. I agree with that view.

With regard to reporting. Dr Jager stated that in every case a consultant report is prepared and returned to the DON’s office, or Dr Beadle, to be placed on the prison medical file and be incorporated in their notes. If Dr Jager is making a referral to Dr Beadle he says that it is his practice to write a letter rather than use the consultation forms and the response gets incorporated in the Forensic Mental Health Service notes.318 The letter also raised the issue, previously discussed, of clinical responsibility for certain types of disorders, and whether the ongoing responsibility to review medications falls on FMHS, or the VMO. 80 There were also concerns that requests to custodial officers by patients in the hospital or prisoners in the main prison for referrals to the medical officer or FMHS were not forwarded to be processed. The Coroner has made detailed findings on these deficiencies in communications. As indicated earlier a number of inmates were critical of the operation of the request system generally, whether to the medical officer or the FMHS. Father Farrell, a former inmate, described his circumstances when he repeatedly made requests to custodial officers and nursing staff to see the psychologist and subsequently found out that these requests were never received by Dr McCarthy.

Father Farrell said that at the time he was in a state of great shock, depressed, traumatised and having difficulty dealing with the pressure.319 He regarded the failure to process the referral as outrageous and indicative of a failure to take real cognisance of people’s needs. “I am the least suicidal person in the world, but I was deeply depressed and shocked and quite traumatised. I wanted simply to get away from the noise of the television, into my cell, and read some books and listen to some music. I repeatedly asked the nursing staff, all of whom were perfectly pleasant people, if I could go into my cell. No, I couldn't - because that was a risk for them, that I might do something unfortunate. They didn't seem to note that I was locked in my cell for at least twelve hours overnight and if I was going to hang myself of course I could hang myself then. All I wanted to do was to get away from the noise. So they said, ‘Well, you’ll have to ask the psychologist.’, so I put in repeatedly, day after day, a request to see the psychologist. I could have been quite suicidal at that stage. I wasn't, but I could have been.”

Mr Thomas Holmes had apparently also made requests to nursing staff for the drug Cogentin, which had been prescribed for use if necessary but had not been administered, and a request for a further appointment with FMHS which had not been responded to in the four days prior to his death. On that particular weekend of Mr Holmes death, Dr Jager was in Sydney. Details have not been provided as to the “on call’ arrangement covering that particular weekend. The DHHS advise that Mr Christopher Douglas, one of the deceased prisoners, also sought access to the services but the referral was not communicated to the FMHS team. These matters are dealt with by the coroner in her report.

While nurses understood the current operation of the FMHS referral system, it was clear that they had not been adequately briefed about the new arrangements for some months after the relocation in May 1999. While briefing is the immediate responsibility of the DON, the failure to adequately brief nurses illustrates that the relocation transition arrangements were inadequate and senior management in the DHHS, FMHS and the DJIR ought to have maintained better communications with each other and with staff working at the hospital and “special institution”.

Patients’ medical files and the transfer of information

Some of the problems identified related to the admissions procedure, the absence of protocols for nurses contacting health professionals, the sufficiency of patient information and medical record keeping, the adequacy of consultations and delays in assessment. Given the increased demand on prison health services, it is critical that proper systems for communicating information are in place. How information is exchanged, to whom and for what purposes may involve questions of jurisdiction, professional practice and privacy issues. There were criticisms about the content of information on FMHS and medical records case files.

Dr Jager was critical of the system for keeping medical records and sought to improve the record keeping system at Risdon Prison and Glenorchy320. The consultants described as “appalling” an

81 example of the patient file provided by Dr Jager which contained a diverse collection of doctor’ and nurses’ notes, papers and other matter, including newspaper cuttings thrown together in random order. Dr Beadle said that there were some inadequacies in the documentation within the case files, particularly for the nursing staff who work within the inpatient area. Ms Coral Muskett, both in her report321 and whilst entering data for the “1999 Admissions to the Risdon Prison Hospital”, was critical of the ongoing patient documentation and commented that it was not possible with the existing record keeping to gain a quick insight into patients’ current nursing care or management. There was also some criticism by nurses about the adequacy of their own documentation. The responsibility for maintaining orderly and up to date patient notes rests with all professional health care staff who have the use of the files and ultimately with the responsible Department to ensure proper systems are in place.

The consultants formed a view that at an early stage Dr Jager attempted to address the quite unsatisfactory referral system and similarly with respect to clinical record-keeping, made considerable efforts to improve the quality of the forensic mental health files. However, the consultants also said that unfortunately “his well intentioned more formal/professional approach to record keeping, confidentiality etc. resulted in less use being made of the previous informal style of record keeping and communication” which in turn led to relevant clinical information either not being readily available to appropriate staff or not being communicated, particularly to nursing staff.

Nursing staff said information provided by FMHS in the Prison Hospital file about patients was inadequate and incomplete. This was exacerbated initially by uncertainty as to the times that Dr Jager would be next attending the Hospital, the perceived reduction in the service hours, and the move away from daily clinical ward rounds and weekly case management meetings where information could be exchanged.

Prior to Dr Lopes retirement there were daily meetings with FMHS, the CNC Psych and other staff, where information was exchanged on all inpatients, and those in outpatients who might require ongoing management. Doctor Jager made it clear that he would not be available to attend daily ward rounds, or ‘hand overs” but that when he commenced his appointment it appeared that the regular scheduled hand over no longer existed.322 Dr Jager also expected that there would be meetings with management arranged by the DON, to which forensic staff would be invited, and that this would be a forum to discuss difficult cases. He said that this never arose, but it would be preferable to ad hoc meetings. I agree. It would appear that the time, format and number of meetings is not critical so long as sufficient relevant information is communicated, so that each entity can fulfil their respective obligations to patient care. I endorse Dr Falconer’s recommendation that meetings between the Prison VMO, DON and Director of FMHS should occur at regular intervals and that administrative support for these meetings to be provided by the DHHS with the minutes of meetings forwarded to the District Manager, South East Region, DHHS.

DHHS advise that a multidisciplinary team approach is being developed. Multidisciplinary clinical reviews occur each morning in the daily hand over for the hospital patients. Staff from nursing, custodial and FMHS attend to discuss patient progress and management planning and case conferences occur during FMHS weekly staff meetings. Staff, including the Assistant Clinical Director, has case discussions involving diagnosis, psycho-social problems and future management of both inpatient and outpatient clients.

A significant impediment to the exchange of information is that nursing staff are employed by Corrective Services and the VMO and FMHS team by the Health Department and a tension exists 82 between record keeping practices and what information is regarded as confidential and what is necessary for patient care. Two separate files are maintained regardless of whether an inmate has both a medical condition and a psychiatric condition. At the Risdon Prison Hospital the psychiatric notes are kept in a separate file that nurses are not allowed to see or access, and all the medical notes are kept on the medical files. The nursing staff were critical of the paucity of information provided by FMHS for recording on the medical files.

It was said that Dr Jager had directed members of the FMHS team, not to allow the nursing staff to see their file notes.323 It was also said that Dr Jager wrote extensively in the FMHS file and sparsely in the Prison Hospital file. Dr Jager acknowledged that he had directed that substantive notes be entered in the FMHS file but only a brief entry in the prison medical file. He said he had discussed this issue with the DON and Doctor Beadle324 and he had agreed that forensic staff would make a brief entry in the case file notes. It appears more extensive written information is required and the issue is referred to in the consultant’s reports.

Dr Jager sought to improve the exchange of information by arranging for a liaison nursing support for 3.5 hours a week at the Risdon Prison Psychiatric Outpatients Clinic to provide him with background information, sit in on consultations, and facilitate communication back to the nursing staff.325 Dr Jager reportedly found this liaison extremely useful as it enabled him to utilise his time more efficiently.

In terms of patient care and management, the use of electronic information systems and a merged file was discussed and it was noted that the Department of Psychological Medicine, at the Royal Hobart Hospital, has medical and psychiatric notes in one file. Dr Jager did not regard the merged file as comparable to the prison medical and forensic system whereas Dr Beadle submitted that “A uniform health record for inmates is ideal” and considered that sharing of the case files and clinical information is a priority.

There may be issues of client confidentiality and "ownership" of medical records, but this needs to be balanced to facilitate good care and management of patients. After all the purpose of a medical record ought to be to better facilitate the health care of the individual who is the subject of the record, and a persons past medical history may be relevant to their care. This is particularly so in a custodial environment where their detention deprives them of access to their practitioner of choice. Dr Beadle commended a recent policy and procedure document on the confidentiality of health records written by the DON, but said that the policy could be more explicit regarding who has legitimate access to the files. Dr Beadle also expressed a concern about the tardiness of implementation of such policies generally.

The Corrective Services custodial officers and the Unit Manager also kept day books recording admissions, discharges and any incidents. There appeared to be a duplication of record keeping but in some instances essential information, such as discharges from custody in time to arrange medication or other referrals, were not communicated in a timely fashion. The “1999 Admissions Statistics” illustrate that for many detainees information on who admitted them to the Prison Hospital and the reason for their admission is absent. There needs to be a more cohesive and efficient system of keeping records by all Corrective Services staff employed at the Hospital. I have adopted the recommendations made by Dr O’Brien, Associate Professor Farrell and Dr Falconer regarding medical records and recommended accordingly.

DHHS have advised that, as at the date of publication of this report, a single Prison Health Record has been designed and ordered and that consultation with an information management specialist has

83 guided design, storage and maintenance of the record system. DHHS advise that a file clerk has been employed to assemble and join information from the various files currently used.

8.4 CHANGES APPROVED BY SENIOR EXECUTIVES

As referred to earlier both the DJIR and DHHS senior management, in accepting the reduction of the second psychologist position from full time to 0.5 EFT, varied the 1988 Agreement. 326 The role of the Senior Psychologist at Classification Meetings altered. The unfunded position of Registrar was reassigned from the “special institution”. Dr Jager’s conjoint appointment with the University which reduced his time the “special institution” was authorised by DHHS. There were other changes in staffing profiles, including reduced hours at the Prison and Hospital, of the FMHS social worker, FMHS community nurses and administrative assistant. Other factors such as the opening of the Hobart Remand Centre by DJIR and the relocation of FMHS to Glenorchy impacted on the FMHS presence at the prison and “special institution” which senior management may have been aware of in a more general sense, authorised or accepted retrospectively.

Changes discussed with senior administrators in DHHS

An issue for this investigation is the extent to which changes in FMHS policy were discussed and approved or accepted by the DHHS. On 2nd of February 1999 the Acting Southern Manager of Mental Health, Ms Melanie Allen met with Dr Jager and Mrs Blackwood, the then State Manager of Mental Health Services, prior to Dr Jager commencing duty on the 8th of February 1999. On the same day he received a memo from Ms Allen agreeing to halt the appointment process for the second psychologist position. On 18th February 1999, shortly after Dr Jager’s appointment objections to the withdrawal of the psychologist position were made to DHHS by Dr McCarthy and Mr Nils Cochrane. Dr Jager forwarded his proposed revised model for Forensic Services Delivery to Ms Allen on the 22nd of February. This model was discussed at a meeting between Dr Jager and senior management in DHHS.327 The outline refers to proposed changes to the 1988 Agreement, the relocation of the second part time psychologist to Glenorchy (with 1 session at the Prison) 328 and the need for Dr Jager and Departmental personnel to further discuss some draft forensic policy issues.329 Between the 25th of February and the 3rd of March there were further representations regarding the psychologist positions with Ms Allen proposing a consultative meeting between DHHS and DJIR.

On 5th of March 1999 Dr Jager attended the State Management Group (SMG) meeting. The topics listed on the Agenda were covered in a discussion paper prepared by Ms Victoria Rigney, a senior policy officer at DHHS.330 The DHHS advised that the hour long meeting scheduled for discussion of forensic matters did not occur.331 From both DHHS and Dr Jager’s perspective, the discussion was to provide an overview of forensic services and discuss potential service delivery models. 332

On 9th of March 1999 a meeting was held between Ms Allen and Dr Jager regarding his proposed changes for FMHS. From the DHHS and Ms Allen’s perspective this was an attempt to discuss a more thorough and acceptable method of change management with Dr Jager. This meeting occurred in the context of the reduction of the second psychologist’s position to a part time position, and other alterations in the staffing profile. On the 13th the proposed consultative meeting between DJIR and DHHS was cancelled as Dr Jager had contacted and obtained the consent of Mr Richards, the then Director of Corrective Services and Deputy Secretary DJIR. At this meeting on the 9th the relocation to Glenorchy was discussed but from Ms Allen’s perspective these discussions were inconclusive. From Dr Jager’s perspective the relocation had been accepted. He proceeded to act on its implementation and moved the administrative base of the FMHS out of the “special institution” on the 3rd of May 1999.

84 Dr Jager had some discussions with Mrs Blackwood. On 26th of March 1999, by memorandum he requested funding for a FMHS position of Registrar and on 8th of April 1999 he presented his draft "Functional Model of Care Summary” for the proposed Forensic Psychiatry Unit to her.333 The DHHS state that the presentation of Dr Jager’s draft did not mean that the change in service model or the FMHS target population was endorsed or approved. I accept that in the circumstances the discussion was about possible options for FMHS.334 In relation to the FMHS “target population” and given earlier correspondence indicating a willingness on the part of DHHS to be involved in the provision of services to persons “with difficult or aggressive behaviour” I accept nothing arose at that meeting that could be construed as an endorsement of any endorsement of DHHS of any change in the FMHS “target population”.335 I am satisfied that the issue as to who constitutes the target population for resource allocation purposes and the delineation of the Forensic Service had been an ongoing issue with the DHHS for many years336 and is ongoing.

On the 3rd of May 1999 Dr Jager met with Mrs Blackwood, Ms Allen, Ms Boyer the then Director of Community and Rural Health and Mr Ferrall, the Director of Finance. The meeting appears to have primarily referred to the budgetary difficulties in funding the position of a Forensic Psychiatric Registrar but a file note indicates that the prison hospital situation, forensic unit and the Departmental financial situation was also discussed. Ms Boyer agreed that she would write to Dr (later Professor) Kirkby seeking a reprioritisation of psychiatric registrar positions and requesting members of the Mental Health State Management group to identify service changes which might enable savings to be directed to FMHS. Ms Boyer states that the meeting was to address issues in relation to Dr Jager’s plans for FMH and to provide a context for him in relation to the State budget.

On 14th of May 1999 Dr Jager conducted an internal FMHS Planning Day where he sought to communicate a proposed new model to members of the FMHS team.337 It is clear from the documentation and those interviewed that the FMHS model was for a state wide comprehensive mental health service “to individuals with mental disorders who are within the nexus of the criminal justice system”. Dr Jager’s belief is that the FMHS team agreed that this defined the FMHS target population. Although reference is made to inmates with “mental disorder” there is no reference to a broader target group including those with behavioural or personality disorders. The widely held perception by members of the FMHS team and hospital staff was that the service focus, particularly for psychological services through Forensic Outpatients, had clearly altered and shifted from the prison to the community. Further, that allied to this shift in focus, was a shift in emphasis as to who constituted the FMHS clientele.338 However no senior managers were present nor were the Minutes sent to any senior manager within either Mental Health or DJIR nor it appears were they aware of the widely held perception held by members of the FMHS team and others at the Hospital, that the FMHS focus had moved from the “special institution” to the community. It appears that one approach given the reduced hours at the prison, was to concentrate FMHS provision on forensic mental health patients with major mental illnesses .

I accept that, as at that date, the discussions between Dr Jager and senior management had not authorised either the relocation of FMHS to Glenorchy, a change in focus from the special institution and FMH patients to the community or a redefining of the target population. However there had been a number of discussions between Dr Jager and senior executives of DHHS, an on occasions DJIR, which covered a number of policy issues including staff profiles, funding for regional services339 and the relocation to Glenorchy. Given the increase in the prison population and the demand on FMHS, both factors known to DHHS, the DHHS ought to have appreciated that this constituted a reduction in FMHS at the prison and “special institution” which had the potential to place at risk those who required forensic or general mental health services. 85 DHHS indicated that for this managerial responsibility for FMHS delivery to be fully understood it needs to be put in the context of the events in the DHHS in 1999 that were impacting on all aspects of the Department’s administrative responsibilities. DHHS refer to the Government’s 1999 Funding Review of DHHS340 which identified a potential shortfall in 1998/1999 of $65m and the need to make expenditure savings. This included shedding some 55.5 FTE positions from the Division of Community and Rural Health in non service delivery positions. This involved staff transfers, including Mrs Blackwood who transferred to the Hospitals and Ambulance Division on the 17th May 1999, and other staff being allocated additional duties and responsibilities. Having considered the organisational structure I accept that senior executives had significant responsibilities. It is also asserted that matters known to members of the FMHS team were not bought to the attention of management and they attribute this to Dr Jager’s management style. This issues are referred to below.

Consultation with medical, hospital and members of the FMHS team

The perception of some members of the FMHS team as well as staff at the hospital was that the level and scope of the FMH service to the prison and “special institution” reduced in 1999.341 Dr Beadle, Mr de Bomford and other nursing staff were also critical of the lack of consultation about the relocation, the reduction of the psychologist position to 0.5FTE, and the transfer arrangements. I have concluded that the level of consultation with staff at the Hospital about the relocation and revised service, was inadequate both between Dr Jager, the members of his team and between Dr Jager, Dr Beadle and hospital personnel.

Information from those interviewed indicated that the initial transition arrangements following the relocation were poorly managed including the system for making referrals to the FMHS team. It was said that information regarding the times Dr Jager would be available to conduct sessions was not communicated to nursing staff though Dr Jager it appears, did communicate this information to the DON whose responsibility it was to make this information available to nursing staff. There was also criticism about the level of information from FMHS contained in the patients general medical record.

It is clear that Dr Jager, in seeking to change the focus of the service to a community focus had the endorsement, either explicitly or by implication, of senior executives in the DHHS. He also sought to improve and rationalise the referral system and improve the professional standards of medical record keeping. His commendable efforts, as articulated in the consultants report, initially resulted in less information being communicated. This, combined with the relocation out of the Prison Hospital, the actual reduction in hours and positions, the change from ward rounds to a sessional arrangement and a widely held perception that Dr Jager was not as approachable or did not pay as much heed to information from custodial officers and others about patients, contributed to a fracturing of the cohesiveness of the FMHS teams. The transitional arrangements were poorly managed.

The duty of care

The general view of hospital staff was that changes to the FMHS since Dr Jager’s appointment in February 1999 had left the Prison Hospital with an inadequate mental health service. It was said that Dr Jager had limited the FMHS to those with major mental health disorders to the exclusion of those with severe personality disorders, leaving a great many inmates who were distressed, disturbed or who had complex mental health problems without adequate access to services.

86 A number of nursing staff, some members of the Forensic Unit and Dr Beadle regarded this as a contravention of various standards or recommendations including National Mental Health Standards, the Recommendations of the Royal Commission into Aboriginal Deaths in Custody, the Burdekin Report, the 1988 Agreement, and the core FMHS business as identified in the minutes of the 1998 DHHS forensic policy planning session. Some supported basing the FMHS in the community. Their criticism was not with the aims and objectives of the community based FMHS but with the adequacy of the FMHS to the Risdon Prison complex, the Prison Hospital and forensic mental health patients. There was a belief that the scope of FMHS had been narrowed and those with severe personality orders excluded from the FMHS target population.

The DHHS initially responded that there was no quantitative data nor empirical evidence to support a conclusion that any inadequacies in the FMHS service has had an adverse impact to the extent that the DHHS could be considered to have breached its duty of care.342 Further that any changes in eligibility criteria or the target population did not affect the access to FMH services of Messrs. Holmes, Newman, Santos and Long, from either Dr Jager or the rest of the forensic mental health team as all fell within the FMHS and all received services. Receiving services does not mean that such services are adequate. The Coroner’s findings address the degree to which Dr Jager, DJIR and DHHS failed in their duty of care to those who died in custody. The DHHS further advised that Christopher Douglas sought access to the services but the referral was not communicated to the team. This was addressed by the Coroner. I accept that the DHHS is primarily responsible for providing services to persons brought to their attention and that, providing proper referral protocols are in place, the FMHS relies on others to alert the FMHS team to a request for services.

I accept that three suicides in a period of a month and a half,343 and the instigation of this inquiry on the 20th of September DHHS became more active in ascertaining the situation within FMHS and at the “special institution”. A meeting was held with Dr Jager on the 21st where senior managers expressed their concern and it appears that informal communications had been made to DHHS regarding Dr Jager but no formal complaints had been made. The DHHS concerns intensified following the death of Mr Santos on the 18/19th of October 1999, as the death of a mentally ill but apparently physically health young man did not appear to be as a result of suicide.

Other information was being communicated to DHHS. A member of the FMHS team who had been on sick leave for some 6 weeks (and was subsequently on leave worker’s compensation) was interviewed on the 19th of October and expressed a concern about the welfare of patients and Dr Jager’s treatment of members of the FMHS team. On the 20th Ms Allen attended the prison to make her own inquiries and on the same day the possibility of a clinical audit was discussed mooted and preliminary inquiries made as to persons who might have the skills to conduct such an audit or review of Dr Jager’s clinical practice. The DHHS decision was made to proceed with this audit or review on the 1st of November 1999, the Minister was briefed and on the 9th of November DHHS met with DJIR in relation to this matter. In mid November Dr Jager was notified. On the 30th November the then Ombudsman advised Mr Ramsay, the Secretary of DHHS that Dr O’Brien, the Director of Forensic Services in South Australia and Associate Professor Gerry Farrell had been appointed to undertaken a Clinical Review of FMHS and Dr Jager as Clinical Director.

During December and subsequently other matters came to the attention of DHHS. On the 7th of December the Senior Clinical Psychologist, the Clinical Psychologist and Community Forensic Nurse wrote documenting their concerns about the Clinical Director and stating that they believed that service delivery had been reduced to a point where their professional standards are compromised. Other information was communicated both in relation to the FMHS and Dr Jager and as a consequence DHHS recognised the need for further psychological services and social

87 work support. Additional resources were provided and a FMHS Team Manager appointed to ensure the effective operation of the FMHS team and DHHS .

8.5 SUMMARY

There are three critical issues arising out of the changes to FMHS since 1999 which are relevant to this inquiry. The critical issue is whether the change in the provision of FMHS to the Prison Hospital resulted in an inadequate or unmet service, or a service below an optimal standard of care which impacted adversely on those in custody.

The second issue is the manner in which the “special facility”, FMHS is directed, administered, managed and supervised. This extends to managerial responsibilities as well as clinical governance issues.

The third issue relates to the management and impact of the main prison on the Prison Hospital. The question is whether there were defects in the management of the main prison or other factors which resulted in a diminution of the quality and standard of care for forensic mental health patients at the “special institution” and whether it impeded the ability of the FMHS or Hospital staff to provide an adequate service for those in their care.

The conclusions I have reached are as follows: I accept the DHHS submission that no authorisation or approval was given for Dr Jager to relocate the FMHS administrative base to Glenorchy, or to limit the “target population”. Authorisation was given by DHHS to reduce the FMHS position of second psychologist, but without sufficient consultation which might have allowed the potential adverse impact of this to be assessed. I am satisfied that the relocation was discussed with Ms Allen and though from her perspective the issue was unresolved, this was not communicated with sufficient clarity to Dr Jager. However the DHHS state that the relocation to Glenorchy was not reversed for a variety of reasons including the recognition that a community based service was an appropriate direction in which the service should move. This would suggest that any concerns about the move were not major and not sufficiently articulated by Ms Allen for Dr Jager to construe the concerns as an objection. On balance, I accept that Dr Jager believed that he did have approval for the relocation and acted accordingly. With regard to the position of second psychologist, I accept that the consultative process intended by Ms Allen was short circuited by Dr Jager. I have formed a view that neither Mr Richards nor Mr Dodd undertook an adequate inquiry before agreeing to the reduction in psychological services and the relocation of the FMHS and that their administration was deficient in this respect. I do, however, acknowledge that they relied on the expert advice from Dr Jager, DHHS and FMHS in accepting the proposed changes in service delivery.

The DHHS authorised a reduction in the hours of the Director FMHS, from .9 to .8 FTE, to accommodate Dr Jager’s conjoint appointment with the University of Tasmania and approved the reduction in hours at the prison by the forensic psychiatrist and other members of the FMHS team. This occurred in the context of the relocation from the prison to the Glenorchy Health Centre and an approved change in focus to a community based service. This change in focus was in line with the Second National Health Plan (1998) and was in accord with national policy directions and the DHHS general policy direction. The issue was not the change in focus per se but that, as a consequence of DHHS not allocating additional resources, resources were drawn away from the Risdon Prison and “special institution” resulting in a depleted FMHS at the Prison and “special institution” in 1999.

88 I have formed a view that the reduction in psychological services to Risdon Prison left a level of service far below that required at the Risdon Prison and Prison Hospital particularly given the increase in the prison population.

While the number of Forensic Prison clients increased marginally (4.22%) DHHS statistical data indicates that there was a 14 % reduction in client contacts. During the same period the total prisoner death rate from apparent unnatural causes in 1999-2000 increased to a rate of 1.12 per 100 prisoners in Tasmania and far exceeded the death rate in all other Australian jurisdictions. All those who died were either forensic mental health patients or had a forensic mental health history. While suicide cannot be prevented, the risk can be minimised. The coroners findings are that there were breaches in the duty of care owed by the DJIR and DHHS, as well as Dr Jager, to persons in custody.

Deaths in custody generally arise from multiple factors, some inherent in the individual but other factors include the situation, circumstances and the custodial environment and a person’s response to the significant stressors in that environment. As custodians and health care providers, both Department have responsibilities and a duty of care to those in detention.

The DHHS authorised the reduction in hours of the second psychologist position in about April 1999, and accepted or did not monitor the reassignment of the hours of the social worker, second psychologist and community psychiatric nurse from the Prison to the Community. I am satisfied that Ms Allen and Ms Blackwood were made aware of the altered role in relation to the Classification Committee and Parole Board 344 and that the attempts to fund the position of a Registrar, or three sessional psychiatrists, was in part to be achieved through a reduction in psychological and social work services. I consider that the DHHS and the DJIR senior management accepted the reduction in the psychologists position without a proper analysis of the effect of this and that there was sufficient information in March 1999345 to generate a better inquiry.

What, in my view, could be anticipated was that this change in focus with the commensurate reduction in positions and hours at the prison during a period when the prison population had increased, would impact adversely on the level of service at the Risdon Prison Hospital. Any causal relationship between the deaths and the deficiencies in service was a matter for the coroner, however in terms of the reduction in psychological services, the relocation and other changes, I am satisfied that each Department accepted or endorsed these changes without adequate inquiry and that these changes had adverse outcomes in terms of the service to clients. I accept that in 1999 these changes to FMHS occurred in the context of a serious budget shortfall in DHHS, and in part out of a desire to accommodate Dr Jager’s plan for a Psychiatric Registrar and a forensic service with a statewide orientation and community focus and, in the case of DJIR, in reliance upon advice that this constituted a better model for service delivery.

I have concluded that the FMHS social worker hours allocated to the prison decreased. Apparently earlier decisions by the DJIR as a result of resourcing restrictions had reduced social work services to the main prison. Dr Jager commented that this reduction in DJIR welfare staff346 had thrown an extra burden on forensic staff347 and that were a range of services, such as alternative to violence programs, stress management programs, various health education functions and social work type interventions for prisoners with problems outside the prison, which had all declined. Dr Jager agreed with Dr Beadle that there needs to be enhanced resources, particularly in the social work positions, and that these should be located within Corrective Services. I would agree and consider that it is essential that these services are part of clearly defined case management and rehabilitation strategies.

89 I have concluded that the reduction in psychological and welfare support, combined with the stricter definition of forensic clientele and the relocation of FMHS, left an inadequate service for persons at risk of self harm, those with personality disorders, underlying mental illnesses or those with a dual diagnosis, who were not deemed to be in “crisis”. I have reached a conclusion that this constituted defective administration by the DHHS and, as the DJIR agreed to these changes without a proper assessment of their potential impact, then this too constitutes defective administration by that Department.

In terms of resources and whether these were sufficient to provide an adequate service for the “special institution” and the prison population, the DHHS dispute that the resource allocation was low by comparison with other States. It is difficult to make a comparative assessment when some of these positions were funded under the DJIR and not the DHHS. I also accept that in April 2000 DHHS increased both social work and psychology resources within the FMHS and these additional resources are now above 1998 levels. I acknowledge that these resources and other actions were taken by DHHS to respond to an increased volume of requests from prisoners and prison staff for counselling services and consider that it is an appropriate response to prevent a recurrence of the critical incidents which occurred at the Risdon Prison Hospital and “special institution” amongst forensic mental health patients and those at risk in 1999.

The DHHS states that the budget for the FMHS has remained constant, with an allocated budget of $433,345 in 98/99 and $434,000 in 99/2000.348 I accept that there has been no actual decrease in the budget allocation to the FMHS however the community initiatives should have been additionally funded if required rather than achieved by a reduction in services and hours at the Prison Hospital.

I am satisfied that early in 1999 Dr Jager gave an administrative direction to Dr McCarthy that she should concentrate on “core” business, that is patients with a major mental illness/Axis 1 diagnosis and expressed a similar view to the DON and senior nursing staff. This emphasis and a more clinical focus, combined with the reduced psychological and social work service and hours, had the consequence of redefining the clientele by excluding persons with a personality disorder, who are not “in crisis.” The Direction reduced the scope of the service provided under the 1988 Agreement. After a number of deaths in custody Dr Jager sent a memorandum to the DON in which he sought to clarify what constituted a person “in crisis” for the purpose of coming within the FMHS clientele. This was a broader criteria but again is not a definition which the DHHS would accept without qualification as the Department’s view is that it is too restrictive. As previously stated above, Dr Jager noted that, in practice, the FMHS did in fact continue to see a broader clientele including persons with personality disorders.

The consultant’s view was that “As Director of FMHS, Dr Jager must accept a major part of the responsibility for determining health care delivery for all prisoners with mental health problems….Dr Jager did not do enough to communicate his intentions to staff, or to provide opportunity for staff to discuss their concerns, nor did he put in place a proper mechanism for assessing the mental health and service needs of the prison population, especially those without major mental illness/Axis 1 diagnosis.”349

Recent research referred to later in this report indicates a link between personality disorders, self- harm and suicide as a continuum of self-harm. In my view, there is sufficient research undertaken to justify the involvement by the FMHS with inmates with personality disorders and with their management. The FMHS role may primarily be advisory or consultative, and operate in conjunction with the Prison and Hospital. The FMHS should however be sufficiently flexible and

90 inclusive to be responsible for the care and management of individual clients and responsive to these needs as and when required.

The conclusion I have reached is that regardless of whether the service comes within the province of a general mental health service or elsewhere, it is a service which is particularly necessary for a prison population. The current FMHS model in my opinion leaves an unmet service for persons with severe behavioural or personality disorders to the detriment of that group. Dr Falconer’s view is that, in the absence of access to general mental health services, FMHS should have a role in the management of prisoners with severe personality disorders either through clinical assessments or assistance with the development of clinical protocols and guidelines.

The DHHS stated that it was unforeseen at the time the DHHS agreement to reduce psychological services was given, that other changes would occur, particularly in relation to patient eligibility.350 In my view it was foreseeable that the changes that were approved would reduce the FMHS at the Prison to below an acceptable level irrespective of any redefining of the target population. While I accept that the DHHS did not authorise any alteration of who constituted the FMHS target population, Dr McCarthy, Dr Assenheimer and Sister Barwick with a number of nurses at the hospital believed that there had been a restriction by Dr Jager and disapproved that action. Despite some concerns about Dr Jager’s management style, it seems that Ms Allen did not seek to ascertain whether there were issues which needed to be attended to within the FMHS. I consider that there ought to have been a proper inquiry as to what issues were causing dissension, and the likely effect of the reduction in service level and the change in staffing profile. However I also accept that until about September 1999, apart from the union involvement and formal objections by Mr Cochrane and Dr McCarthy to the reduction in the position of second psychologist, the dissension within the FMHS team and concerns of nurses and others was either not communicated to Ms Allen or was discussed in confidence with an EEO officer but no formal complaint was made. Ms Boyer states that not until 28th of September 1999, at a meeting with Dr Jager which focused on resource and service delivery issues, was mention made briefly of staff relationship issues and that this was the first advice of staffing problems to senior management.

Dr O’Brien and Associate Professor Farrell were not prepared to attribute the sole responsibility to Dr Jager for the difficulties in delivering FMHS to the “special institution”. They expressed the following opinion: “Our criticism is tempered by the recognition that the problems he faced were longstanding and at the commencement of his appointment clinical and managerial direction was seemingly absent. Also, it does not appear that nursing leadership, or support, was as proactive as it might have been. In addition, until recently, there has been little in the way of administrative involvement and academic leadership available to Dr Jager.” I would agree with the general tenor of their views and addressed this issue below.

91 9. THE RESPONSIBILITY OF MANAGEMENT

9.1 THE DUTY OF CARE

The following is an opinion provided by Mr Peter Tree which outlines the duty of care and its application in the present circumstances.

“The term duty of care is used in two senses in the modern community; on the one hand it can connote a moral obligation resting upon a person or a Governmental agency, albeit that the failure to adequately discharge that duty may not sound in damages or any legal sanction at all; on the other hand it is used in a highly technical and legal sense as defining a particular legal obligation, which if breached, and if the breach results in a person suffering damage, will entitle a Court upon application of the injured person, to award damages. It is this latter meaning of the phrase to which this advice is directed.

In certain circumstances, the law imposes an obligation upon a person to exercise reasonable care as regards another person, so as to prevent that other person from suffering injury, loss or damage. The necessary circumstances before this legal duty of care will be owed are firstly, that it is reasonably foreseeable that lack of reasonable care may cause harm to the other, of the kind in fact sustained, and secondly, that the nature of the relationship between the two persons is such that it warrants the imposition of a duty of care. In the past, this second element has been referred to as “proximity”, but it is clear that that term no longer enjoys the majority support of the High Court of Australia: see Perre v Apand (1999) 164 ALR 606. It needs to be said however, that the recent changes in the law dealing with the pre-requisites for the existence of a duty of care, are almost exclusively restricted to cases involving economic loss, rather than the sustaining of physical injury or damage.

It is clear law that a doctor owes a duty of care to his or her patients, which duty extends to diagnosis, advice and treatment. In general terms the duty is “to exercise reasonable care and skill in the provision of professional advice and treatment”: see Rogers v Whittaker (1992) 175CLR 479. This duty exists in institutional settings, as in Thomsen v Davison [1975] QdR 937, where an army doctor was held to owe a duty of care to a soldier patient.

Similarly, it is tolerably clear that in the conduct of a hospital, and quite apart from the provision of therapy or treatment, the manager or operator owes a general duty of care of patients to take reasonable steps to prevent reasonably foreseeable injury to them. Thus in Brumen v State of Queensland [1999] QSC 238, the Court held that the Townsville General Hospital had breached its duty of care owed to an in-patient admitted under mental health legislation, by failing to provide premises which were reasonably safe, in this instance by having unprotected balconies over one of which, in a suicide attempt, the plaintiff jumped. The Court had no difficulty in concluding that the forcible detention of the plaintiff clearly gave rise to a duty of care. A duty of this nature is similar to the duty of care upon a prison authority, which requires it to exercise reasonable care to prevent prisoners from harming themselves [Howard v Jarvis (1958) 98 CLR 177; Nada v Knight (1990) Aust Torts Rep 67,916] or other prisoners [Ellis v Home Office (1953) 2 QB 135; Dixon v Western Australia (1974) WAR 65], or indeed prison staff.

92 The interesting question here however, is the extent to which a hospital owes a duty of care to patients for the treatment which they receive at the hands of medical, nursing and therapeutic staff, either employed by the hospital, or exercising privileges to consult from, or operate in the hospital. Up until 50 years ago, in general terms the law was that the hospital did not owe a duty of care to a patient for any medical treatment administered, however in the English Court of Appeal decision in Cassidy v Ministry of Health [1951] 2 KB 343, it was held that, regardless of whether the professional services were administered by employees or paid consultants, the hospital was under a duty to ensure that reasonable care was taken in the treatment of it’s patients. At page 362, Denning LJ (as he then was) said:-

“If [the] surgeons and nurses did not treat [the patient] with proper care and skill, then the hospital authorities must answer for it, and it matters not that they themselves did not perform their duty to [the patient].”

This duty, which is to ensure that reasonable care is taken, is different to the practitioner’s duty to actually exercise reasonable care. Moreover the Courts have been at pains to stress that the hospital’s duty cannot be discharged simply by the engagement of competent practitioners or carers; rather the obligation is to take all reasonable steps to ensure competent care, of which the appointment of competent practitioners is but one instance. This duty is commonly referred to as a “non-delegable” duty of care, because it always remains upon the hospital. Thus in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, the New South Wales Court of Appeal held that the defendant hospital had not discharged the non-delegable duty merely by employing a competent orthopaedic surgeon. Rather in discharge of it’s obligations, the hospital was obliged to make available all the skill and facilities which it was reasonably able to deploy, and this obligation remained with it, and could not be divested by delegation.

In Kondis v State Transport Authority (1984) 154 CLR 672, the High Court of Australia reaffirmed that the hospital/patient relationship did give rise to such a special non- delegable duty, and in Northern Sandblasting v Harris (1997) 188 CLR 313, explained that the basis for such a special duty rests in firstly, the control exercised over the other by the person who owes the duty, and secondly the vulnerability of the person to whom the duty is owed. Text writers suggest that, in the case of hospitals, the special non-delegable duty may extend to nursing, physiotherapy, pharmacy and medical services.

Several footnotes apply. The first is that the special duty does not extend to non-patients, for instance, where the patient is the patient of the doctor in question, who is merely using hospital facilities to provide services to his or her patient: see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. The second is that although the obligation imposed upon the hospital is no doubt high, the liability of the hospital is not founded on strict liability or otherwise independently of fault; in other words the hospital’s obligation is only to take all reasonable steps to ensure reasonable care is taken in treatment of the patient. Thirdly, out of the one set of facts the hospital may simultaneously be liable for a breach of its own non-delegable duty of care, and also liable vicariously for the negligence of its employee. The difference between those two is that in the latter situation, there is no element involving breach on the part of the hospital per se. Moreover, since medical practitioners in hospitals commonly are independent contractors, and hence not employees, vicarious liability is frequently excluded as an option.

93 Slightly different considerations may apply where the allegedly negligent person is a Government department or some other manifestation of the Crown engaged in socially difficult and important work. That is because a Court may construe the statutory regime under which the service is offered as impliedly rendering the department immune from civil claims. Two recent authorities; (albeit not in the context of hospitals), have dealt with departments carelessly conducting investigations into suspected child abuse, which resulted either in charges incorrectly being laid against a non-perpetrator, or compulsory separation of that person from family members deemed at risk. In both instances [Hillman v Black (1996) 67 SASR 490 and CLT v Connon 2000 Aust Torts Rep 81-572] the Courts held that the task of investigation of child abuse complaints was so important that, either as a matter of statutory construction or at common law, a duty of care was not owed by the relevant department to those whom it investigated or charged with offences. To recognise such a duty, the Courts said, would be counter-productive, as it would hamper the socially important work of the Departments in question.

Arguments of that nature do not seem to apply here. That is because firstly, I cannot discern any intention in the relevant legislation to render either Department immune from suit for the negligent conduct of the hospital, and secondly, because the custodial and therapeutic nature of the work undertaken at the hospital is not likely to be hampered by the imposition of a legally recognised duty of care to inmates.

Applying the law to the facts

It seems incontestable that a duty of care was owed by not only Dr. Jager, but all medical, nursing and therapeutic staff at the hospital to the inmates of it, irrespective of whether they were detained as prisoners or pursuant to restriction orders.

The greater question is whether the operators of that hospital, namely the two relevant government Departments, owed duties of care to the inmates, and more particularly, whether that duty, if it existed, was in the nature of a non-delegable duty of care.

The first difficulty which presents itself here is determining whether or not the hospital is a hospital as that term has been used in the authorities dealing with legal duties of care. For the reasons which I outlined at paragraph 4 of this advice, it seems to me that a Court would most likely conclude that the hospital functioned as such, notwithstanding the unusual blend of patients which it treated. The second difficulty then, is the fact that the structure and operation of the hospital is quite unusual. Whereas ordinarily one could identify a single entity as the operator of a hospital, or with particular areas of responsibility within the hospital, that does not seem to be the case here. Rather it seems that there was a pooling of resources to provide a joint facility, with there having been little if any advertence to the extent to which, by virtue of the joint operation, one department may become liable for the negligence of the other. I am not critical of this lack of advertence; after all we are only talking about two arms of the same government.

Given the fact that both departments derived mutual benefit from the joint operation of the hospital, I do not think that a Court would be inclined to separately identify responsibilities in each department restricted to the areas of staffing and operation which they provided. If I am wrong as to that, then the most likely alternative is that a Court would hold that each department owed a non-delegable duty of care to hospital inmates as regards those parts of the hospital function which it staffed, such that DHHS owed a non- delegable duty of care to all patients of Dr. Jager, as regards his treatment of them, 94 whereas DJIR owed a non-delegable duty of care to the patients of the nursing staff which it supplied, as regards the treatments, services or therapies which they provided. In either case the duty was to take all reasonable steps to ensure reasonable care in the treatment of the patients.

The effect of the recognition of a non-delegable duty of care, is that it does not excuse the department from responsibility to say that it attempted to satisfy it’s obligations by employing a person whom it believed to be a competent health professional. That does not discharge the duty of care, as the responsibility cannot be delegated in that way. It is a duty which remains with the operator of the hospital irrespective of the competence or incompetence, known or unknown, which it’s staff bring to bear.

In many respects it seems to me that the position of Dr. Jager is quite indistinguishable from that of a specialist performing surgery in a hospital at the request of the hospital (rather than the patient). As has been seen, in those circumstances the hospital assumes the liability because the operation is conducted within its premises, and notwithstanding that there is no relationship of employer/employee between the hospital and the specialist. Thus in many respects it is quite irrelevant that Dr. Jager was a staff member of the DHHS; if he had been a private consultant then the hospital would still have owed a non- delegable duty of care to the inmates in respect of services provided by him.

Interestingly, in the discussion of “issue 3” in the DHHS response to Ombudsman’s draft report, the department seems to have misunderstood either the existence or scope of the non-delegable duty, for it seems to suggest that the primary responsibility lay with Dr. Jager, rather than the “senior managers”. As has been seen, at law, the responsibility lay with neither; it lay with DHHS, and probably DJIR also, and it was a duty to take all reasonable steps to ensure reasonable care in the treatment of patients.

9.2 BREACH OF THE DUTY OF CARE

Mr Tree expressed a view that the material in his brief suggested a reduced quantity and quality of service to patients, coupled with a wholly unsuitable therapeutic environment. He noted that five of the six persons whose death has been the catalyst for the Ombudsman investigation were either detainees under the Mental Health Act or had pre-existing mental illnesses or psychiatric conditions and hence had at least some contact with the hospital. I would concur with Mr Tree’s analysis and its application to the Risdon Prison Hospital and “special facility” and note the coroner’s findings as breach in the duty of care by DHHS, DJIR and the findings in relation to Dr Jager.

The Risdon Prison Hospital is not a private Hospital under the Hospitals Act 1918, nor a gazetted public hospital under the Health Act 1997 but is, within the meaning of the Mental Health Act 1963, a “special facility” declared as such by the Attorney General under the Criminal Justice (Mental Impairment Act 1997, section 6(2). While DHHS may be administratively responsible for the FMHS delivered to the “special institution”, under s.7(1) of the Criminal Justice (Mental Impairment) Act, the Attorney-General may, by order published in the Gazette, appoint a psychiatrist to be the responsible medical officer for the purposes of this Act. Dr Jager was appointed under this provision. In my view both Departments have a non-delegable duty of care to forensic mental health patients in the prison and at the “special institution”.

Breaches of a common law duty of care are predominantly the province of the Courts, prosecution arising out of a charges relating to criminal liability a matter for the Director of Public Prosecutions, 95 the cause of death a matter for the Coroner and professional competence a matter for the relevant registration boards. In terms of administrative actions it is part of this inquiry to form an opinion as to the extent to which the DHHS and DJIR were responsible for administrative failures in relation to the Hospital and “special institution” which includes whether these failures constituted a breach of the duty of care to those in custody. Dr O’Brien and Associate Professor Farrell, the consultants appointed in November 1999 to conduct a clinical review of FMHS, and Dr Falconer, the consultant appointed to conduct a review of the Hospital were engaged to examine systemic issues not to determine questions of clinical competence, liability or causation in relation to the deaths in custody. It suffices to say that only matters which fall within the parameters of an “administrative action” under the Ombudsman Act 1978 and relate to the criteria set out in s.28(1)(a) to (g) are matters within jurisdiction.

9.3 TO WHAT EXTENT IS RESPONSIBILITY DELEGATED?

Mr Michael Burt, Chief Executive Officer, Victorian Institute of Forensic Mental Health stated, in relation to a Departments duty of care and the framework in which this operates in Victoria, that:351 “The department has a duty to ensure that there is put in place an explicit framework of policy and procedure within which professional staff are expected to operate. The framework of policy and procedures is simply a functional expression of the general policy intent. It “operationalises” the broader policy. This framework is critical and its proper documentation is regarded as a fundamental requirement for all contemporary health care services. It is invariably the starting point for any external accreditation body in assessing a service for accreditation purposes. It is a clear department responsibility.

The department has an obvious duty to ensure employees are properly qualified and able to perform the duties that the government requires of them and that are explicit in the policy and procedure framework applying to the service. In the case of a forensic psychiatrist, whilst there are obligations in respect of professional practice and behaviour which may be best assessed by professional peers and senior representatives from within the discipline, the ultimate responsibility for their professional practice and the able performance of their duties rests with the department because of its clear responsibility to implement government policy.

To perhaps make this matter clearer, in the case of Victoria, the government has a matter of policy decided that a statutory authority governed by a board of management, the membership of which is appointed by the Minister for Health, shall be responsible for forensic mental health services. The Board has a CEO and a Clinical Director. The Institute employs many doctors and other clinicians. Responsibility for their performance is unambiguously with the CEO in the first instance and the Board and then the Minister. Detailed policies and procedures regarding clinical programs are documented and the CEO is responsible on behalf of the Board for ensuring that all clinicians including doctors perform to an acceptable level within these parameters.”

The DHHS and the DJIR ultimately are responsible for the delivery of health services to all inmates including those held under a restriction order in the “special facility” which forms part of the Prison Hospital. I have concluded that a therapeutic environment to treat the mentally ill cannot be maintained under a custodial regime where there is a conflict between security and health care outcomes. This is particularly so in circumstances where the administration and management of the main prison impacts adversely on the Prison Hospital patients, and the system for caring for inmates with personality disorders and those at risk is poorly managed. These are systemic failures which

96 have accumulated over time by the indifference and neglect of successive governments and a lack of rigor in decision making.

9.4 THE UK ASHWORTH SPECIAL HOSPITAL INQUIRY

The issue of delegated and central responsibility has been considered recently in the UK Committee of Inquiry into the Ashworth Special Hospital.352 The Committee noted that for much of their history ‘Special Hospitals’ for persons subject to detention under the Mental Health Act were accountable to the UK Department of Health and Human Service (DHHS) and the Inquiry states that there is a strong and legitimate central interest in the detailed operation of these hospitals, given the nature of the patient population, the high profile of some of those subject to a restriction order, and the importance of ensuring the safety of the public. The balance between delegation and central control had shifted over the last half century, and created a necessary tension between the delegating authority maintaining central oversight and control over a national, publicly funded service, and the devolution of authority. This devolution was in part to enable clinicians to have appropriate professional autonomy and to allow local management to do the most effective job possible. The degree to which Departmental over sighting was exercised is also relevant to our Inquiry.

The UK ‘Special Hospitals’ have been the subject of damning inquiries over the last 20 years and the Committee of Inquiry cited reports which described insular, closed institutions, unable to rid themselves of an institutionalised culture of therapeutic and professional isolation, whose predominantly custodial and therapeutically pessimistic culture had isolated them from the mainstream of forensic psychiatry.353

The reforms implemented following these inquiries sought to improve accountability and protect the rights of patients who were detained. The Mental Health Act Commission (MHAC) was charged with visiting psychiatric hospitals and safeguarding the rights of detained patients in the UK.354 The MHAC can visit, investigate complaints and review decisions such as the withholding of a patient’s mail, and can appoint medical practitioners and others to give second opinions in cases where this is required by the Act. The Commissioners observe detention conditions, examine the patients statutory documentation, advise on the application of the Act and the Code of Practice. The Commission requires that 20% of visits to all High Security Hospitals are unannounced but visits to the medium security wards are routinely visited only twice a year and the detention wards less frequently.355 The MHAC undertakes it activities on behalf of the Secretary of State, meets Ministers once a year and liaises with the DHHS. The Social Services Inspectorate of the DHHS has an independent inspectorial function.356

9.5 CLINICAL GOVERNANCE AND QUALITY IMPROVEMENT

In the UK all health organisations have a statutory duty to seek quality improvement through clinical governance. In summary clinical governance is to be the main vehicle for improving the quality of patient care and enhancing standards, including dealing with poor professional performance. The scope and concept of clinical governance was the subject of a 1997 UK Government white paper on the National Health Service (NHS).357 To achieve its aims clinical governance requires an organisation wide transformation; clinical leadership and positive organisational cultures.

The concept imports many of the values of good corporate governance It has been said that for clinical governance to be successful its must be underpinned by the same strengths as corporate governance: “it must be rigorous in its application, accountable in its delivery, developmental in 97 its thrust, and positive in its connotations.” 358 In part clinical governance has arisen as a response to concerns about the quality of health care and diminishing public confidence which has arisen following failures and unacceptable variations in standards of health care. The development of clinical governance, it has been said, “is designed to consolidate, codify, and universalise often fragmented and far from clear policies and approaches, to create organisations in which the final accountability for clinical governance rests with the chief executive of the health organisation - with regular reports to board meetings - and daily responsibility rests with a senior clinician.” Each organisation is required to work out accountability arrangements in detail and ensure that they are incorporated and communicated throughout the organisation. Quality improvement must to address the whole range of performances and range from identifying failures in standards of care through methods of continuous quality improvement towards creating organisations which are exemplars of quality care.

Precisely how clinical audits will fit into an integrated approach to clinical governance, including the concept of peer review, is yet to be established. However facilitating and reinforcing the clinical governance model as it applies locally are two external bodies, the Commission for Health Improvement and the National Institute for Clinical Excellence. In part their role is to promulgate the clinical governance philosophy of qualitative improvement and encourage evaluation within a quality ethos which extends beyond the conventional indicators of performance. For successful clinical governance with an organisation wide emphasis, the strength of the working relationship between senior management and health professionals will be critical as will be a working environment which is participative, where ideas and good practice are shared, education and research are valued, and accountability rather than blame part of the organisational culture. Other partnerships are regarded as important including effective partnerships with universities, local authorities, patient representative groups and voluntary organisations.

The clinical governance model is supported as a model for enhancing quality and evaluating standards of health care in this State. This encompasses solutions to dealing with deficiencies in performance as well as enhancing professional development. The use by DHHS of the Credentials and Clinical Privileges Committee as a quality assurance committee under s.4(1) of the Health Act 1997 is, in my view, a useful component of a clinical governance model. Resources ought be allocate to enhance clinical governance as a quality improvement approach in clinical practice and the contracts of those who enter into employment with the public sector should reflect their obligations and responsibilities under this model, including being subject to clinical audit and performance review.

9.6 OFFICIAL VISITORS

Many of these reforms referred to above in the Ashworth Special Hospital Inquiry are relevant to the Risdon Prison Hospital as a “special institution” and ought to be considered by both DHHS and DJIR as part of a comprehensive review of the health services provided to those in custody or detained. In particular a role similar to the UK Mental Health Act Commission charged with visiting psychiatric hospitals and safeguarding the rights of detained patients, ought to be extended to all those in custody and combine and inspectorate and reporting role. This would involve redefining the role of the Official Visitors. It is acknowledged that as at the time of publication of this report, DJIR has created a part time position of Official Visitor with an inspection and reporting function. DHHS has created a part time position of FMHS Court Liaison Officer to assist with the early identification of mental health problems and with the responsibility to liaise with Prison Health Services as part of the risk assessment procedures.

98 In terms of administrative accountability, the structure put in place in the UK is a model which ought to have ensured the proper functioning of services provided by the Special Hospitals.359 However it failed and the UK Committee of Inquiry examined in detail the culture of secrecy, obfuscation, denial, disregard of legitimate security concerns and a failure by management which led to their inquiry. The relevance to the Risdon Prison Hospital and “special institution” is that informed communication, consultation and analysis is integral to proper service planning. Whereas a clearly defined organisational structure and line of reporting helps define administrative accountability, it will not be effective unless the people who give operational effect to it are competent, act with professional integrity and are properly resourced. If matters of concern arise, as they inevitably will, then these have to be properly responded to by each Agency and their respective Ministers kept properly informed. A systemic failure is frequently an accumulation of multiple factors which collectively constitute a systems failure over time. For this reason planning needs to be holistic and integrated as if decisions are made in an incremental fashion, without regard to their impact on the wider organisation, then the institution is likely to slide into a systemic failure.

9.7 THE APPOINTMENT OF DR JAGER

At the time of Dr Jager’s appointment he had completed the final year of his registrar training through the Royal Australian and New Zealand College of Psychiatrists and received his formal notification of acceptance on 26th February 1999, shortly after he commenced his appointment as Director of Forensic Services on the 8th of February. The DHHS had sought applicants with some years experience as a consultant psychiatrist. The Position Description required that the applicants were required to be either Specialist Medical Practitioners Class III or IV with at least 8 years to 12 years experience relevant to a designated specialist qualification.

Dr Jager did not have that length of experience and was at the final stage of completing the necessary qualifications and training for the position, however in his initial discussions as to remuneration the DHHS indicated that this would be on the same basis as if he had the seniority and experience sought in the job description but that the appointment would be under a special contract of service pursuant to s.38(1)(b) of the Tasmanian State Service Act 1984 rather than a permanent appointment, apparently on the basis that he did not meet the qualification criteria for the position of Clinical Director as advertised.

The appointment of a Clinical Director who was about to complete the requisite formal qualifications on contract is not criticised. However there is an issue as to the degree of control, advice or mentoring, management the DHHS exercised or ought to have exercised in terms of the administration of the FMHS, and the clinical support or professional supervision the DHHS ought to have provided for Dr Jager particularly in terms of his relative professional inexperience as an administrator and the limits of his experience as a forensic psychiatrist. The coroners findings were that at the time of his appointment as Director FMHS, Dr Jager had no experience at all in forensic psychiatry save for a total period of at best 15 months all of which was under the supervision of other qualified and experienced psychiatrist.

9.8 THE PROFESSIONAL AUTONOMY OF SPECIALIST CLINICIANS

The DHHS referred to the fact that many specialist clinicians are employed by the DHHS in the health care system and, in their professional functioning, will be accorded a degree of autonomy in the area of their expertise. The inference is that this somehow limited DHHS supervisory jurisdiction. While I accept that the clinical authority that Dr Jager and other health care professionals enjoy is respected by staff and senior management, the DHHS has a non delegable 99 duty of care and may, in some instances, be vicarious liability, for the actions of an employee. Dr Jager also referred to his job description which described his position as autonomous, and he understood this to mean that he was not answerable in a clinical sense to any other person.360 Dr Jager said that this remained the case up until about December 1999.

In terms of clinical supervision, DHHS state that Dr Jager worked one day a week with Dr Kirkby, the then Head of the Discipline of Psychiatry. Dr Jager stated that Dr Kirkby only commenced as Professor of Psychiatry in May 1999 and while Professor Kirkby told him that he was appointed as the medical adviser to Mental Health, there was no mention by either the Department or Professor Kirkby until December 1999 as to Professor Kirkby being his professional supervisor.361 Further that the one day a week he worked with Dr Kirkby was not under his clinical supervision but in Dr Jager’s capacity as a senior lecturer at the University of Tasmania. Dr Jager said that he and Dr Kirkby met on an informal basis, but there was no explicit or implicit supervisory role for clinical purposes in that relationship. Dr Jager refutes the DHHS suggestion that Professor Kirkby had a role as his clinical or professional supervisor prior to December 1999.

After the death of Mr Santos, on the 19th of October 1999, DHHS became concerned about clinically related issues including the clinical management of forensic mental health patients and there were inquiries made and a number of meetings on what action was necessary. On the 1st of November the Secretary Mr Ramsay, Ms Boyer, Ms Allen and Ms Quinn formed a view that an independent Clinical Audit or Review was appropriate and the next day prepared a Ministerial recommendations to that effect. The preferred option was to implement a Review as part of the Ombudsman investigation and the next day a meeting was held with the then Ombudsman regarding this proposal. On the 7th steps were initiated to appoint an Acting Manager to FMHS362 and on the 9th of November the Heads of both Agencies, and DHHS personnel met with Dr Jager advising his of these decisions.

On the 30th of November the Ombudsman wrote to Mr Ramsay advising him that Dr O’Brien and Associate Professor Farrell had been appointed as consultants to conduct a Clinical Review of FMHS and that this would commence on about the 13th of December. In various DHHS memoranda this is described not as an Audit but as a Clinical Review in relation to both “clinical practice and to service management”.

I have reached a conclusion that until December 1999 Dr Jager did not have a clinical adviser or supervisor nor was there a formal system of clinical governance in place. As at the 9th of November 1999, Dr Jager was advised of the Clinical Review to be conducted as part of the Ombudsman inquiry and on December 9th directives were issued to Dr Jager by DHHS which related to management matters and restricted Dr Jager from initiating any changes in the FMHS without written endorsement from DHHS.363 Ms Boyer states that she communicated to Dr Jager that “at this stage, he would continue to work as a Forensic Psychiatrist unless the clinical audit experts advised otherwise”. Whether this role or expectation was communicated to the consultants with the same degree of specificity is another issue. In November 1999 the terminology refers to a Clinical Review or a Clinical audit. The Clinical Review commenced on the 18th of December and was concluded and a report provided to DHHS in January 2000. The issue of whether this met DHHS expectations was discussed with the consultants. Dr O’Brien’s view was that their report was a clinical audit of the FMHS but did not extend to professional clinical practice and patient management.364 As a consequence DHHS proposed utilising the existing Credentials and Clinical Privileges Committee gazetted on the 16th of November 1999 as a quality assurance committee to review the clinical performance of Dr Jager.365

100 Independently of both the Clinical Review and the directives concerning management, on the 13th of December 1999, DHHS put in train a system whereby senior management within MHS could seek clinical and other advice in relation to the ongoing management of the FMHS and professional support for Dr Jager.366 On the 22nd of December 1999 Dr Schneider, strongly suggested a regular and more defined process be put in place relating to the provision of support for Dr Jager in his clinical practice.367 Dr Jager was formally advised by Ms Quinn on the 23rd of December 1999 of Dr Schneider and Professor Kirby’s role and other professional support and clinical supervision arrangements which had been agreed. The details of these support arrangements were further confirmed by DHHS to Dr Jager on the 18th January 2000 at his request. In addition to this, and completely independent of the Ombudsman Inquiry and the Coronial Inquest, DHHS established the Credentials and Clinical Privileges Committee.

The view that I have taken is that the position of Director of Forensic Services extends beyond clinical practice and, as the Director of FMHS, the DHHS had a responsibility for oversighting and monitoring Dr Jager in his capacity as Director of FMHS and also should have provided adequate clinical supervision and support particularly in light of his experience as a forensic psychiatrist not meeting the specifications of the advertised position. Even if issues of clinical competence are matters for professional registration boards and professional autonomy is respected, the Department cannot divest itself of responsibility for those in their care. In my view until December 1999 the clinical support and supervisory system provided by the DHHS for Dr Jager was inadequate.

DHHS submitted that Dr Jager met on a fortnightly basis with other senior psychiatric consultants in Mental Health Services for case review and peer support. Dr Jager said that he assumed this reference was to the RHH fortnightly consultant’s meeting, but denied that these meetings provided a case review situation. Dr Jager said that it was usually attended by three or four of the RHH psychiatrists, such as Dr Chichester from the RDH, Dr Pridmore and on occasions by Dr Kirkby. I have concluded that this did not provide the degree of formal oversighting, assistance and professional support required given Dr Jager’s relative inexperience as a forensic psychiatrist, and that not until December 1999 was a formal professional support structure in place.

9.9 THE REPORTING STRUCTURE

Dr Jager commenced his appointment on February 1st 1999, and in the preceding week met with Melanie Allen and Mary Blackwood at Wyadra. Dr Jager stated that he was shown a wall chart in Melanie Allen’s office outlining the structure of the Department and the position of FMHS in that structure. Dr Jager acknowledged that he was advised that his immediate manager was Melanie Allen, the Southern Manager of Mental Health, and that above her was the State Manager and then the division Manager going through to the Secretary but that no documentation was provided to him on the protocols for management decision-making processes. Dr Jager said that no orientation handbook or list of resource material was provided to him and no system of having regular meetings was specified. Dr Jager said that informal reporting mechanisms were developed with Ms Allen.

I am satisfied that, although lacking administrative experience in the public sector, Dr Jager was aware of the reporting structure, but in terms of protocols for implementing changes to the delivery of FMHS and the bureaucratic decision making process, was inexperienced. Given that some matters shortly after his appointment, such as the proposed abolition of the second psychologists position, were controversial and divisive, I consider that Dr Jager should have received more guidance and support from DHHS management.

101 9.10 THE DEGREE OF CONTROL EXERCISED BY MANAGEMENT

The DHHS questioned whether it is possible to hold management within the Department accountable for “inadequate change management practices and direction in relation to changes of which they had at best only limited prior knowledge.” DHHS believed that insufficient account has been given to Dr Jager’s clinical authority, personality and management style on the capacity of the FMHS team to function well, and on the practical ability of senior managers to control his actions. This included the capacity of senior managers to keep abreast of what was occurring within the team and prison environment, and to ensure that their warnings and directions were understood by Dr Jager and acted upon and the detail of his day to day operations and the consultative processes he ought to have engaged in.368

The Department also refute the assertion in the consultant’s report369 that “clinical and management direction was seemingly absent and until recently there has been little in the way of administrative involvement and academic leadership available to Dr Jager”. The Department made representations that, in terms of administrative involvement, for the period from February 1999 to May 1999, Dr Jager had access to Ms Blackwood, and from May 1999 to August 1999, he was able to access Dr Sparrow. From the commencement of his appointment on 1st February 1999 until November 1999 he had the same Divisional Director, Ms Boyer. The DHHS state that this is not indicative of an “absent superstructure” referred to in the consultant’s report.

The DHHS provided a chronology of events and meetings which they submitted indicated that many attempts were made by senior Managers to orientate Dr Jager to the system and to guide him in his interactions with colleagues and staff.370 I accept that some attempts were made, but it seems not with sufficient rigor nor promptly enough but I also accept that there were matters relating to staff management and concerns within members of the FMHS team that were not communicated to DHHS until about September 1999 partly as a result of a staff member being away sick leave and others not making formal complaints. Dr Jager refutes that he was exposed in some detail to managerial and bureaucratic processes and said that he was unaware of any significant complaints against him until the end of 1999 when he was told that three staff members were refusing to work.371 The DHHS assert that once it became clear to management of DHHS that there were reasons for significant concern with Dr Jager’s management capacity, style and clinical decision- making, the Department acted quickly to provide supervision and assistance in both areas by seconding an experienced manager to oversee the service, providing clinical supervision to Dr Jager and additional resources to FMHS. I accept that this did occur from October 1999.

Dr Jager reports only one incident prior to December 1999 in which administrative guidance was given on a staffing disciplinary issue.372 While formal complaints had not been made, some of those interviewed had made informal complaints to DHHS who must have been aware of dissension within the FMHS team.373 These complaints and the significant increase in the deaths of forensic mental health patients ought to have given the Department cause for serious concern and alerted the DHHS to make some inquiry into the functioning of the FMHS. I have concluded that the DHHS responses until about late September 1999 were inadequate, particularly given Dr Jager’s relative inexperience as a clinician and administrator, but what needs to taken into consideration is the time span and that a formal complaint was not made until after the death of Mr Santos.

In terms of acting quickly to provide supervision and assistance in both areas, that did not occur until December 1999 when, in terms of clinical supervision, Professor Kirkby’s role of medical adviser to the DHHS Mental Health was altered and, in terms of administrative management, an experienced manager was appointed. This position is now a permanent position. On the 12th of

102 April 2000 funding was also authorised for the position of Forensic Psychiatric Registrar through the RHH Registrar Training Program.

With regard to professional support and over sighting, I endorse the utilisation of Credentials and Clinical Privileges Committees as a quality assurance committee established to review the clinical practices or clinical competence of persons providing health services to DHHS. I believe that this process should have been in place at the outset of Dr Jager’s appointment and should provide a performance evaluation tool as a condition of employment for all persons entering into contractual arrangements with DHHS to provide health services. I endorse both the establishment of quality assurance committees and the formal supervisory and other professional support role established by DHHS in December 1999 and undertaken initially by Dr Schneider and Professor Kirby. Since that date transfer arrangements have been agreed between Dr Jager, DHHS and the University of Tasmania. In the interim Professor Saxby Pridmore, the Director of the Department of Psychological Medicine, has been appointed FMHS Clinical Director and is the responsible medical officer for the purposes of the Criminal Justice (Mental Impairment) Act 1999. Dr Iqbal Pasha has provided medical cover for FMHS on a part time (.5EFT basis) and has been appointed Deputy Clinical Director. Appropriate specialist forensic psychiatric support has been provided.374

103 10. THE MANAGEMENT OF PERSONALITY DISORDERS

10.1 NON MEDICAL HOSPITAL ADMISSIONS

There was criticism that the Prison management controlled admissions to the Prison Hospital and used the Hospital as a de facto unit for the management of inmates with personality disorders and challenging behaviours. Such admissions were for reasons unrelated the inmates health care requirements. Amongst those admitted from the main prison to the Hospital are inmates with personality disorders, inmates seeking protection and inmates whose conduct indicates that they are “at risk.” Some inmates were perceived by nursing and custodial staff as being manipulative or simply wanting time out. Some, it was said, are admitted to the hospital for their own protection, and some initiate this admission by self-harming or complaining of medical ailments in order to gain admission. It was apparent from the interviews conducted that inmates with severe personality disorders could behave in a manner which was challenging and difficult to control, unmanageable by custodial staff, disruptive to other inmates, self-harming or otherwise gave cause for concern. One issue is whether there is a valid reason for admitting these inmates into the hospital for non- medical reasons, or whether they should be managed in the main prison or in a separate Personality Disorders Unit (PDU) within the prison.

Having examined the 1999 Admissions Statistics and having considered the views of those interviewed, I have reached a conclusion that some Hospital admissions for reasons of protection or for the management of behavioural problems are inappropriate, and I have formed an opinion that inmates with severe personality disorders need to be better managed. At present the Director of Corrective Services can, under the Act, 375 place a person in any division of the prison and the Hospital is considered a division of the prison. Consequently there are a number of people in the main prison who can place an inmate in the Prison Hospital with no formal referral or documentation, and frequently for reasons unrelated to medical care and treatment.376 While the Director of Corrective Services has the power to accommodate inmates who do not require medical care and treatment in the Hospital, this practice is not appropriate and impacts adversely on the capacity of health practitioners to provide a suitable therapeutic environment. It also fails to provide a proper system for the care of prisoners with personality disorders, who might then be discharged by the Hospital back into the yards or placed in ‘N’ Division in what sometimes constituted a downward spiral. I acknowledge that the practice has evolved, in part, due to the lack of any other appropriate facility within the physical environment of Risdon Prison which could provide better management of prisoners with particular needs.

Dr O’Brien and Associate Professor Farrell were of the opinion that the admission and discharge of a patient without the knowledge of a doctor was in direct opposition to the principle in Australia of the doctor being in clinical charge of an individual hospitalised patient.377 Dr Beadle outlined the circumstances for assessment and the situations where an inpatient might be admitted and discharged without a review by the Prison Medical Officer, including occasional admissions by senior security staff of inmates with behavioural difficulties.378

10.2 IMPROVED ADMISSION PROCEDURES

Hospital admission procedures for admitting inmates from the main Prison were agreed on 20 October 1999. Those authorised to admit persons to the hospital were the Prison Medical Officer, the FMHS Psychiatrist, the Manager of Risdon Prison or, in an emergency situation, the senior nurse on duty.379 Dr Beadle and the consultants were of the view that admissions to the Prison 104 Hospital should only occur with the consent of health staff. I concur with that view but accept that some of the concerns about inappropriate admissions of inmates from the main prison for non medical reasons may decline as a result of the Admission procedures agreed in October 1999.

10.3 THE HOSPITAL ADMISSIONS STATISTICS

For the purpose of this inquiry hospital admission statistics were compiled covering the period 1 January to 31 December 1999. The data collected covered patients treated or admitted to the Risdon Prison Hospital during 1999; the number admitted and released daily to establish the average bed occupancy rate and the diagnostic categories or admission reasons. The reasons for admission were recorded in four primary categories, namely ‘medical’, ‘psychiatric’, ‘other’ and ‘unknown’. The reasons for admissions are subcategorised into a ‘primary’ and ‘secondary’ admission if the specific diagnosis, primary and secondary, is known and recorded. The ‘other’ category was assigned where predominantly the reason for admission did not fall into either the medical or psychiatric category. For example, many of the suicide observations, where there was no indication of psychiatric illness noted by the FMHS team, fell into this category. Also recorded in this ‘other’ category is the subcategory of ‘Antisocial Personality Disorder’. In part, this was recorded in this category because of the difference of opinion between Dr Jager and some members of the FMHS team, as to whether a person with a personality disorder fell within the FMHS target population.

During 1999 there were 359 patients treated by the Hospital and a total of 605 admissions to the which included re-admissions and treatment for different conditions . Medical admissions constituted 42% of all admissions, psychiatric admission (including those detained in the ‘special facility as forensic mental health patients) constituted 18%, the ‘other’ category constituted 29% and ‘unknown’ constituted 11% of all admissions. Some 150 of the 175 admissions in the “other” category came within the definition of anti-social personality disorder. That is, these persons had neither a medical nor psychiatric condition requiring treatment. While the admission reasons are unknown in 11% of all admissions, the anecdotal evidence suggests that these are also inmates with personality disorders or inmates seeking protection. The attitude of nurses was that many of these inmates would not have been admitted if the Prison had been better able to manage that person. Many regarded the admission of inmates from the main prison for non medical reasons as inappropriate.

I accept that some custodial officers do not have the skills or support necessary to deal with prisoners at risk of self harm or with severe personality disorders. These officers have a duty of care and many, in a threatened self harm situation, would regard the hospital as the most appropriate place for an assessment to be made. The custodial officers interviewed tended to view these transfers as reasonable in the circumstances. The officers are also aware of some of the dynamics in a yard, including threatened assaults or bullying, and no doubt sometimes refer an inmate, who is acting up or complaining of a medical ailment, to the Hospital for protection. In the absence of a viable alternative, I accept that this is an appropriate response by corrective services officers.

In some instances the admission to the prison hospital may be a response to the custodial officer's perceived lack of support from management. This included inconsistent discipline, a failure to develop better strategies to manage the inmate's behaviour, or to provide adequate support to officers in the yard. Escalating tension resulting from an inmates conduct can impact on the entire yard and can lead to more generalised disturbances.380 Some custodial officers in the main prison considered that they did not receive adequate feed back regarding the inmate they had admitted to the hospital, and freely admitted that more training in behavioural management would better 105 EQuIP them to manage both uncontrollable behaviour and self-harm. It appears that many custodial officers were often only EQuIPped by their experience, wits and personal attributes, to assess risk and manage uncontrollable conduct. A number of more experienced officers had developed their innate skills, and others had the capacity to do so, but I have concluded that there is a need for a separate unit for behavioural management and for enhanced training. The training of officers should be assisted by the FMHS.

Inmates may also see the hospital as a refuge from events in the main prison. As indicated by the 1999 hospital admission statistics, violence and intimidation are a factor in some Hospital admissions. In May 1999, at the time of the riot, the bed occupancy and discharge rate was at its highest for the year. Once the threat is removed, or the inmate is assessed as having no treatment requirements, they are returned to the main prison, sometimes to a protection yard or ‘N’ Division. One nurse described the pathway from bullying in the yards, to protection in a solitary confinement punishment wing, to hospital admission, as a downward spiral.381 The admission of these inmates to the Hospital is understandable but, for those seeking protection who do not have medical treatment requirements, their admission to a hospital for non medical purposes is also inappropriate. The issue is an ongoing systemic issue which in my view Prison management has failed to adequately address historically, but the revised admissions policy referred to above will assist in this.

At the time of my investigation, many nursing staff considered that officers in the main prison frequently admitted inmates whose conduct had become unmanageable. Hospital staff expressed a degree of frustration in being forced to accept the admission of inmates who did not have a "medical" or "psychiatric" condition, or require care or treatment. In part this frustration arose because these inmates often disrupted other long term patients. An expression used by some nurses was that the Hospital was used as a "dumping ground". There was a perception by some of the hospital staff that because hospital admission was the prison's "call", they received inmates who were unmanageable rather than “at risk”. This, in their view, was often verified during the subsequent hospitalisation, however they also accepted that the custodial officers in the main prison had a duty of care and were accountable for the safety of the inmate, and should make a referral if they believed there was a risk of suicide or self harm. In general the nursing staff were aware of the link between self harm and suicide. It was also accepted by hospital staff that the officer might be uncertain, ill EQuIPped and untrained to identify those at risk of suicide and self harm. They also accepted that custodial officers have a duty of care and a precautionary approach might justify admission to the prison hospital for assessment.

Some objected to continuous requests by the main prison Managers for psychiatric assessments of inmates with severe personality disorders on the basis that both admissions and requests for assessment were being made by prison staff who had no expertise in making medical or psychiatric assessments and they objected to any direction as to the treatment or management of a person once admitted.382

Nursing staff objected to the practice of persons being admitted from the main prison without any explanation or reason given. One nurse said that they were often not told why an inmate is admitted, except that they are a problem and when they assess that person they find there is no problem that could be addressed by the Hospital. As indicated by the Hospital admission statistics, in 11% of all admissions the reasons for admission cannot be ascertained.383 One person said there have been times when nurses have had to look after people, and they've had no idea why they were there. On one occasion a nurse said he was told it was “none of his business” why an inmate had been admitted but it had been ordered. There was an inherent tension in the admissions process between health and custodial requirements.384 106 While there was a great deal of frustration expressed about the impact of the custodial environment on the prison hospital, particularly in relation to admissions for non medical reasons, there was general endorsement for the relationships between custodial and nursing staff working in the hospital.385

10.4 TRAINING IN BEHAVIOUR MANAGEMENT

Mr de Bomford was asked what kind of involvement the Prison Health Service had in training custodial officers in better managing and keeping people accommodated in the main prison. He said that more training would limit inappropriate hospital admissions. Some nurses expressed a view that there was a need to have more specialised training in behavioural management throughout the entire prison system, including nurses and all health professionals. It was suggested that behaviour management training might enable Custodial Officers to more clearly distinguish between those who ought to be managed at the Prison and those who ought to be admitted to the Prison Hospital. One nurse said that there was a blurring where the hospital is seen as a behaviour management unit and a place where inmates can be housed if there is a disruption in the yards or in ‘N’ division.

The available research indicates an association between those who have harmed themselves while in custody and suicide, though not all those who commit suicide have previously harmed themselves. Invariably some inmates admitted to the hospital and subsequently assessed as having no medical or psychiatric condition will be regarded as being manipulative, opportunistic or attention seeking. This may blunt custodial and hospital staff's perception of other indicators and stressors which might make that inmate more vulnerable to self injury, and these attitudes need to be addressed in suicide prevention training.

10.5 A PERSONALITY DISORDERS UNIT WITHIN THE HOSPITAL

One issue is whether there should be a separate Unit for the management of inmates with personality disorders and, if so, whether those with behavioural disorders should be accommodated in the Hospital or in a separate unit within the Prison and what role is appropriate for the Forensic Mental Health Services.

In 1995 the Hospital Review made recommendations for the better allocation of space according to status and treatment requirements. The DON and CNC Psych referred to past attempts to create a special unit in a separate wing of the Prison Hospital for the management of complex behavioural problems. In 1996 a proposal was submitted to the Chief Superintendent (Risdon), to utilise the South Wing of the Prison Hospital as a behaviour modification/therapy area. This proposal did not proceed primarily because the Correctional Officers Association felt their staff had those skills already. In my view this was regrettable. The continuing admissions from the main prison of inmates with complex behavioural problems, indicates that at least some officers do not have behavioural management skills to the extent required386. This was also the view of a number of custodial officers interviewed who considered that they did not have the skills required to manage the often very challenging behaviours of inmates with personality disorders. It is also symptomatic of a management culture which at the time of my investigation, appeared, in the face of any opposition, to fail to implement sound proposals.

At times the admission of inmates with gross anti-social personality disorders was said to be very disruptive to other inpatients. It was clear from those interviewed that hospital staff wished to minimise the disruption on long term inpatients, but also to have a facility in the hospital to better 107 manage the conduct of those with severe personality disorders. This has been partially addressed by setting aside the east wing as the long term wing, relatively free from the disruption of a transient population, but there is still a mix of clientele with different treatment needs and requirements. Most supported a separate unit for the management of individuals with severe personality disorders and considered that the mix of mentally ill patients with those with personality disorders was to the detriment of the treatment of the mentally ill.

Dr Jager also supported a separate behavioural unit with “a core group of skilled custodial staff to manage and operate the service”. He referred to staff burnout and the need to support and rotate staff through such a facility, and the need to ensure the safety of both the inmate and staff. These issues are referred to by the consultants, Dr Falconer387 and by Dr O’Brien and Associate Professor Farrell388 who reported that behavioural intervention units (or special care units), staffed by non- medical and usually correctionally employed staff, are increasingly popular. They were of the view that it is also prudent to have a consultation-liaison forensic psychiatric service available. Support for this position and the creation of smaller separate personality disorder units comes from the findings of the UK Home Office Report of the Committee of Inquiry into the Ashworth Special Hospital (May 2000) and into the functioning of the Personality Disorder Unit.

10.6 PERSONALITY DISORDER UNITS WITHIN SPECIAL HOSPITALS (UK)

In 1994 the decision to create the Personality Disorder Unit at Ashworth Special Hospital in the UK was taken as part of the implementation of the Blom-Cooper Inquiry and was part of a move to create a new, more therapeutic ethos, for the management of those with personality disorders. The Committee state that those classified as “psychopathically disordered” (in legal terms) or “personality disordered” (in clinical terms) have an unenviable reputation for being difficult and resistant to treatment. There is little consensus as to the nature of the disorder, its management and treatment, and indeed its treatability.

With regard to those detained at Ashworth Special Hospital, the majority were at the severest end of the spectrum of personality disorder, with a history of violent and sexual offending. They were not a homogeneous group and their clinical diagnosis differed, as did the sections under the Mental Health Act under which they are detained, the management problems they presented and their different prognoses. It was said to be a “lottery” as to whether the personality disordered offender in the criminal justice system ended up in prison or a hospital [1.33.4] and that, if directed (as the majority are) to prison, then their medical assessment on arrival is perfunctory. If the prisoner is subsequently referred to a psychiatrist for assessment, rarely is the particular diagnostic category of personality disorder assessed. During the course of its inquiry the Committee considered the Personality Disorder Units (PDU) established within the prison system, as well as the mental health system.

The Committee of Inquiry was critical of the decision to put some 100 highly disordered men in six wards, given the lack of specialist expertise in the care and management of personality disordered patients, and the intermingling of those who were mentally ill on the same campus.389 Their findings were that difficulties soon emerged in that there were more referrals than places available, a shortage of psychologists, a high patient to nursing staff ratio, and an inappropriate mix of patients with interaction between disordered patients and the mentally ill.390 There had been a devolution of responsibility for care and security down to ward level and, in the view of the Committee, this resulted in an inappropriate balance between therapy and security, with the necessary limits, controls and prudent cautions not being observed at a ward level.

108 Problems with the operation of the Departmental accountability and reporting arrangements had been identified and were in the process of being amended when events at Ashworth Hospital in 1996/7391 led to the establishment of the Ashworth Special Hospital Committee of Inquiry. The conclusions of the Committee were that the problems at Ashworth stemmed from an inappropriate balance between therapy and security in situations where there was a mix of patients with personality disorders in the same ward as mentally ill patients, and where a more relaxed regime, and inadequate security and supervision, enabled those with personality disorders to exploit that situation. The Committee of Inquiry recommended that patients with a sole or primary diagnosis of personality disorder should be managed in a separate high security facility in relatively small groups.

10.7 A SEPARATE UNIT WITHIN THE PRISON SYSTEM - THE UK EXPERIENCE

The Committee of Inquiry into the Ashworth Special Hospital PDU also consider the Prison systems arrangements for individuals with personality disorders. These services were described as limited and in no way meeting the potential demand, however there had been some facilities created that were regarded as achieving a measure of success. The Committee reported that the best known facility at Grendon offers a therapeutic community for around 225 prisoners and, though more expensive than the average prison, was less expensive that the average cost of the seven High Security Prisons which provide more than half of Grendon’s prison population.392

The Committee cited recent research which indicated that establishment at Grendon reduces prisoner distress and re-offending, and improves the behaviour of disruptive prisoners within the system. While Grendon’s “therapeutic community” was said to be well established, those who are referred must have made a commitment to change, and non-compliance or infringement of the rules leads to a transfer back to the mainstream prisons.[1.35.1] While the benefits of Grendon were acknowledged, some expert witnesses to the Inquiry were of the view that the units for personality disordered offenders could not be truly therapeutic, and any treatment in a once weekly group without the capacity to re-enforce the group work throughout the week, was likely to be ineffective.

The Close Supervision Centres are intended to operate as part of a national management strategy that aims to secure the return of problematic or disruptive prisoners to a settled and acceptable pattern of behaviour. Prisoners have the opportunity of graduated progression through the system, and back into the mainstream prison through sustained good behaviour. The intention is that they will be able to contribute to individual activity programs and attend weekly meetings to discuss their progress. Prison staff at Close Supervision Centres are to attend a centrally approved training course to EQuIP them to achieve the aims of the centre and to meet the needs of individual prisoners. The Committee of Inquiry visited and was impressed by one of the centres, and regarded it as potentially a useful safety valve for the Prison System by taking the most disruptive prisoners out of circulation. [1.35.13].

The UK Prison Services gave evidence of strategies within the prison system prior to 1998 to control the very small numbers of highly disruptive sentenced prisoners with severe personality disorders. Many had been transferred from segregation unit to segregation unit, often every six weeks, where they would receive no more than one hour’s exercise a day, and little or nothing in the way of constructive activity or opportunity to address their behaviour. This system mirrors the current use of ‘N’ Division in the Risdon Prison; as system which I regard as inhumane and an abridgment of basis rights. In 1998 the UK Prison Services reviewed this detention practice for disruptive prisoners with severe personality disorders and a new policy was introduced based on a

109 system of five Close Supervision Centres, each holding a small number of prisoners, with varying regimes ranging from highly restricted to more open regimes.393

10.8 THE REQUIREMENTS OF A PERSONALITY DISORDER UNIT AT RISDON

The findings of the UK Ashworth Hospital Committee of Inquiry and the Close Supervision Centre model being developed in the UK are relevant to the recommendations made in this investigation, namely that there be a separate unit for the management of prisoners with severe personality disorders and that the numbers in such a unit should not exceed 10 inmates. Having considered the relative merits of whether such a separate unit should be within the Hospital or within the prison, I tend to the view that, providing these inmates are separately accommodated for the purpose of better managing their care, then the setting is not critical. This view is contingent on appropriate and skilled advice being given to those charged with the responsibility of managing persons with complex personality disorders; appropriate services, programs and resources are available, and that appropriate and individualised Behaviour Intervention Plans are developed. Those within the Unit are to be subject to continuing assessment and formal review to monitor their capacity to progress to lower levels of control and to minimise any undue stress. FMHS should formulate the individualised care plans in conjunction with those charged with the care of these inmates. There should be consultative, advisory, planning and training assistance provided by FMHS and, in relation to inmates with a dual diagnoses or more complex and severe behavioural problems, additional forensic services should be provided consistent with that persons requirements.

It is essential that this class of inmate is not discriminated against by being denied privileges that other inmates may earn by good behaviour. Any restriction of normal privileges should only arise as part of that person’s management otherwise the perception is that the restriction is a punishment, rather than the restoration of the privilege as an incentive for good behaviour. I do not consider the practice of accommodating inmates with severe personality disorders in ‘N’ Division under the same regime as those on disciplinary charges to be acceptable. Removing possessions, retaining inmates in solitary confinement for 23 hours a day, and social isolation is not appropriate for the management of inmates with complex behavioural problems and personality disorders. I regard it as an abridgment of the responsibilities the State has towards persons with disabilities and detrimental to their well being. This form of custodial management is regarded as a punishment by those who experience it.

During the course of the inquiry one inmate wrote: “I am currently serving 3 months in ‘N’ Division on a Behaviour Management Program”. 394 He submitted that in essence, this was a double jeopardy, as the system can not punish an inmate twice for the same offence (assault) and yet he was in solitary confinement for 23 hours a day and had been confined for a month. His view, with which I agree, is that for the management program to work he should not be “treated as a punishment inmate”. He sought information about the Behaviour Management Program in order that he could better understand his predicament, what was expected of him, and of the system.

I also consider that those with severe personality disorders constitutes one of the highest special needs groups in the prison system. The Burdekin Inquiry made the following comments:

"Expert witnesses from FMHS referred frequently to 'behavioural' or 'personality disorders'. These conditions do not qualify as mental illnesses under mental health legislation - even though they are listed as psychiatric disorders in the standard diagnostic tool, DSM-III-R. Thus an individual diagnosed with a personality disorder cannot be hospitalised as an 110 involuntary patient; cannot rely on the defence of insanity in a criminal trial; and will often be turned away by psychiatric hospitals and crisis services.

Yet personality disorder is the single most common diagnosis among patients seen by prison psychiatrists. It is also among the most serious conditions, in terms of the risk of physical harm. People with personality disorders often engage in self-mutilation; in fact the symptoms can be as horrifying and dangerous as any psychosis:

If you've got a personality disorder to the extent that….you're cutting off bits of yourself, mutilating yourself, chopping fingers off, defecating, throwing urine, growling, and basically very uncontrollable - then if you're not deemed to have a mental illness and somebody who may have a well-controlled chronic delusion is deemed to be mentally ill, then there is some sort of perversity in that.” 395

The Burdekin Inquiry accepted that treating personality disorders required behavioural programs rather than medication, and stated that the mental health system's refusal to treat personality disorders causes frustration, bewilderment and anger among people whose work brings them in contact with the individuals affected. I agree with those comments.

10.9 SUMMARY

It is clear from the 1999 Hospital Admission Statistics that the Prison Hospital is used for managing the challenging behaviours of prisoners with severe personality disorders and that this is disruptive to the mentally ill, sick and longer term patients. The question is whether these admissions for non medical reasons are appropriate. The conclusion I have reached is that this is an inappropriate use of the hospital and what is required is specific management in a designated PDU of those with personality disorders. Specialist advice, both from the FMHS and Hospital should be provided and in the case of a prisoner with a dual diagnosis or underlying mental illness, with whatever other treatment or accommodation as is considered appropriate in the circumstances.

Dr O’Brien and Associate Professor Farrell reported that the trend nationally was for behavioural intervention units (or special care units), staffed by non-medical corrections officers, to be supported by mental health services. The consultants considered that FMHS had an advisory and support function for the management of prisoners with behavioural disorders or behavioural difficulty.396 Dr Falconer expressed a similar view, particularly as inmates in prison did not have access to the type of general mental health services available in the community, and hence the benchmark as to who received FMHS needed to be lower. Dr O’Brien and Associate Professor Farrell397 were of the view that it is prudent to have a consultation-liaison forensic psychiatric service available to such units. They advocated further discussions to develop an appropriate service model.

I have endorsed that approach, with a unit either managed by custodial officers within the prison or by the Hospital with a security function, but a revised role for custodial officers with specialised training. I also consider that the UK Close Supervision Centre model ought to be considered in this jurisdiction for the management of inmates with severe personality disorders.

Dr Falconer considered that all prisoners in ‘N’ Division should be reviewed daily by nursing staff, and weekly by either the CNC Medical or VMO, to assess potential harm resulting from prolonged detention. I endorse and support the intent of those recommendations and would qualify it only to the extent that there should be a daily contact by nursing staff and a weekly review by an appropriate health or welfare practitioner to determine whether a referral for further assessment is 111 required. I endorse the Hospital Admission procedures agreed between Prison Management, Dr Beadle, Dr Jager and the DON in about October 2000, and support Dr Falconer’s recommendation for designated beds and a separate wing, or a separate unit in the main prison, for the management of inmates with behavioural difficulties. I have recommended that the South Wing of the Prison Hospital, or some other appropriate area in the prison, but not ‘N’ Division as presently constituted, be utilised as a behaviour intervention unit or behaviour therapy area for the management of inmates with severe personality disorders.. If the PDU is within the Hospital, then security assistance could be provided by custodial officers who have specific training to better manage persons with such disorders.

Since the investigation concluded DHHS and DJIR advise that discussions have occurred in relation to a special accommodation unit for inmates with behavioural problems such as self harm. Inmates may be placed in an observation cell in Division 8398 on a short term basis to monitor them at a level greater than the 30 minute cell checks done elsewhere. This category do not need medical supervision but an assessment is made to observe them in case of rapid decline. If rapid decline occurs they are then transferred to the Prison Hospital.

A Behaviour Management Group has been initiated to create programs for used for inmates presenting challenging behaviours. This group consists of staff from Custodial, FMHS and Prisoner Services who implement and review case management plans in consultation with the inmate. Inmates in this category in Division 8 are granted privileges over and above those which are afforded to those in the Division for disciplinary reasons, including phone calls, access to radio etc. These inmates are placed in the Division on order from the Manager, Risdon (Director's Standing Order 2.2 applies) and the challenging behaviour being dealt with is generally violent and or predatorial behaviour and the inmate presents a risk to the safety of other inmates or Prison Staff. It is envisaged that the focus of this groups will extend to inmates at risk of harm in the near future. That group is currently being managed by the FMHS. Training program for staff has been developed and will commence on 7 May. This is an initial two day program relating to mental health. Training in behavioural management programs will occur when the “special accommodation unit” is created.

112 11. THE MANAGEMENT OF SUICIDE AND SELF-HARM IN PRISONS

Suicide and self-harm in prisons are serious problems in Australia and other jurisdictions. The problem of deaths in custody was the subject of the Royal Commission into Aboriginal Deaths in Custody and has subsequently been the subject of monitoring and research by the Australian Institute of Criminology. In response to the Royal Commission, suicide prevention strategies have been developed in Australian prisons, including risk assessment screening on reception. Deaths in custody have continued to increase over the last decade, and in both 1997 and 1998 a record number of people committed suicide in Australian prisons.399Deaths from suicide or apparent unnatural causes in the Risdon prison Hospital increased significantly and the 1999-2000 death rate of 1.12 per 100 prisoners was higher in Tasmania than all other jurisdictions.400

While suicide is of itself of major concern in correctional institutions, so also is the increasing incidence of self-harm. Self-harming behaviour has become endemic in many institutions, and responses and prevention strategies vary significantly. Self-harming behaviour has been described in recent research as the best predicator of suicide. The conceptualisation of the phenomenon of self-harm diverges. In recent research some regard suicide and self harm as two distinct phenomena whereas others regard the behaviour as a continuum, from ideation to gesture, to attempts, and finally to suicide.

Recent research has focused on environmental factors, including isolation, and the impact of situational stressors or "prison induced stress" as relevant factor in suicide and self-harming behaviour. The Western Australian Ministry of Justice has commissioned a series of research inquiries into stress in prison and how prisoners cope with it. 401 Other States are reviewing and developing strategies for managing suicide and self-harm and some practices, such as strip cells which are still used in the Risdon prison hospital have been abandoned in other States.

Self harm is sometimes regarded as symptomatic of a crisis within the prison system. It has been said that: "Self-harm is a symptom of distress; thus, the causes of distress must themselves be mitigated even if they cannot be removed; and these causes are frequently some aspect of the prison experience or prison conditions themselves. From this point of view, self-harm incidents are almost invariably symptomatic of morale within the particular prison or prison system. ...Amongst all the available warning signs that the general morale and sense of purpose in a prison may have deteriorated to an unacceptable point, self-harm incidents are the most graphic".402

If self-harm is symptomatic of morale, then one would expect an increase in the rate of other incidents, including violence, disciplinary infractions, protests, escape attempts and other such acts. There has, as indicated earlier in this report, been an increase in the escape rate and, during May 1999, there was an incident at the prison. The rate of deaths in custody during 1999 increased substantially. An increased rate of such incidents may in turn generates stressors and tensions within the prison system, which impacts on the morale of all within it, including those least able to cope.

At the outset of my investigation, I regarded the primary issue as not "how" but "why" the detainee or prisoner suicides. In terms of hospital administration, I considered research outlining the preconditions of suicide or self harm, in order to considered what actions should have been taken or strategies adopted to prevent or minimise these risks. Until some of these precursors are identified, it is difficult to determine what resources ought to have been allocated and where, what 113 risk management and suicide prevention strategies ought to have been adopted, and what actions ought to have been taken by prison management, forensic services, the hospital, other service providers and the respective Departments, to properly fulfil their duty of care.

11.1 IDENTIFYING THE UNDERLYING CAUSES OF SELF HARM

Recent research suggests that psychiatric illness factors have been overstated in prison research and that situational stressors, and individual’s ability to cope with such stress, have been understated. In investigating this aspect of the administration of the Prison Hospital and FMHS, I have had regard to the research of Allison Liebling 403and to the review of the published research undertaken by Professor Kevin Howells, Guy Hall and Andrew Day. 404 Increasingly researchers are having regard to "institutional" factors and stressors, within the prison system to identify the "onset of risk", rather than focusing on the characteristics or profile of the at risk, "suicide prone" inmate.

Liebling writes that: "This change reflects the growing acknowledgment that suicide-prone individuals do not exist in a social/environmental vacuum, but may become 'suicidal' as the result of particular circumstances and events, sometimes building up over substantial periods of time".405

She also points out that much of the prison population might be said to be "suicide prone"; that is, predominantly male, socially rootless, uneducated, poor and from an unstable social and psychiatric background. But it is a fallacy to assume that prison suicides are drawn exclusively from this pool. She states that amongst prison suicides are a surprising number of "low risk" cases; the young, those serving short sentences, those with no psychiatric history, those with jobs, homes and families. She postulates that this suggests that there are other "institutional" factors or stressors at work. Liebling does not argue that there is no psychiatric element or predisposition in those that suicide either in or out of prison; but says that "what should be acknowledged is that just as outside, it is more usually a combination of (psychiatric) vulnerability, situational stress and individual perceptions which trigger the final act of suicide than either component alone”.406

The underlying reasons and causes of self-harm are regarded by Professor Howell and others to be "a combination of internal vulnerability factors and external stressors". They support the view that: "The causes of the apparent increase in suicide and self-harm are likely to be multi factorial, including increases in prison populations, the increased incident of psychiatrically disturbed prisoners, the increasing proportion of offenders with substance abuse problems, as well as the observed increase in suicide and self harm in the general population.” 407

Howells, Hall and Day, from their review of the published literature, conclude that groups that are at higher risk of suicide or self-harm in the community, are over represented in the prison population. 408 They acknowledge that there are 'developmental' or 'trait' factors amongst the offender population, in that they: "are more likely to have experienced early family disruption, divorce, physical and sexual abuse in childhood, school and vocational failure, poor parenting and organic brain disorders, as well as having personality characteristics associated with the acting out of impulses (hostility and impulsivity). Additionally, problems of substance abuse are high in offender populations.”

However they point out that this offender population also face events and experiences associated with trial and imprisonment which may seem likely to elevate the risk of self harm, yet only a small 114 portion of prisoners self-harm. There are also a significant number who suicide who are identified as at "low risk".

Howells, Hall & Day suggest that the answer lies in a combination of internal vulnerability factors and external stressors. They cite a study by Thomson, Dear, Hall and Howells (1998) which illustrated that the self harming prisoners "were more distressed, disordered, and vulnerable. They had poorer relationships with other prisoners and staff, and reported more threats and intimidation from other prisoners. They had fewer sources of social support. Three quarters of the self harmers had been previously assessed as vulnerable”. This study reported a high level of suicidal intent in over a quarter of the self harmers, and the main functions of the self harm were reportedly "to obtain psychological relief (release tension, stop thoughts) in 69% of the cases”.409

Solitary confinement and sensory deprivation

The study of Howells, Hall & Day also noted that experience of recent stressful life events was also markedly elevated in those that had self-harmed, as was social isolation and segregation. The issue of isolation or solitary confinement are fundamentally important considerations both in the sense of the overall design of a prison, the prison hospital and the management of inmates. Experimental findings with sensory deprivation and social isolation have documented extreme anxiety and heightened suggestibility after even very short periods of isolation.410 As strip cells are used in the hospital for persons on a suicide risk category, and as both prisoners and detainees in the hospital and 'N' Division, spend most of their time segregated and isolated with very little human contact, the findings in this study were extremely relevant to my investigation.

Research into environments characterised by isolation, confinement and risk has demonstrated certain common emotional and behavioural reactions. These include problems with thinking clearly, motivation (eg.; increased fatigue, inertia, apathy, increased feelings of helplessness and worthlessness), somatic complaints, and changes in mood. Virtually all these responses are found in custodial settings, and are exacerbated by other environmental, social and situational stressors.

The stressful life events referred to, included threats to significant personal relationships, domestic problems and loss events, but also included a variety of events associated with prison life, "such as bullying, intimidation, isolation, and disturbing psychological stressors". Bullying was also regarded as a common antecedent for self-harm, particularly in young male prisoners, and could involve verbal aggression, taunting, sexual abuse, as well as overt violence. Some studies regarded segregation and isolation of vulnerable inmates as having the potential to increase distress and with it the risk of self-harm, as it left the segregated offender alone to ruminate on the stressors and their inability to deal with it. It was suggested that segregation could undermine the offenders main coping mechanism, of avoiding or escaping from the stressor, and instead of producing a "cooling off period", segregation could increase distress.

Boredom, bullying and other prison stressors

Dr Beadle expressed a concern about the increased frequency and seriousness of injuries arising out of assaults in the main prison, particularly leading up to the incident in May 1999. Some custodial officers and nursing staff were concerned about the failure to take adequate preventative measures or disciplinary action against perpetrators of violence. A number of inmates and staff were critical of the conditions in 'N' Division, and as solitary confinement in 'N' Division was a punishment for disciplinary infractions, the transfer of the victim to 'N' Division for protection led to a perception that the victim was punished and victimised, not the perpetrator.

115 Liebling (1992) refers to a 'convict culture' of exploitation and victimisation which leaves those with the fewest resources at the bottom of a powerful hierarchy. If self-injury is an attempt to manipulate a hostile environment, she states that it is not a strategy that confers any status within that culture, leaving the vulnerable more isolated and friendless. The functions of obtaining attention or forcing a change in circumstances were found to be rare, and even those who reported that this was their intention, commonly had high levels of suicidal intent. Thompson and others (1998) were of the view that: "It would be unwise to assume that prisoners who self harm have little or no suicidal intent .. even if staff suspect, or the prisoner states, that the main function of the self-harm behaviour was to attract attention or manipulate the situation.” The safest assumption for staff observing self-harm is that suicidal intent is present, at least until a full psychological assessment is made.

Boredom and inactivity have also been identified as more common in self-harmers than non self harmers, and research indicates that there is some correlation between self harm and a higher level of disciplinary infractions.411 Self harm indicates a level of distress and an inability to cope with prison, and in turn, this inability to develop coping strategies may be the product of personality traits such as impulsivity or hostility. The Western Australian study by Dear and others demonstrated that self-harmers were less likely to use active coping and problem solving strategies.

The four risk categories

Howell's and his colleagues consider that their review of the published research illustrates that the predicators of suicide and self-harm fall into four main risk categories. These risk categories they describe as personal, contextual, historical and clinical and as included both static and dynamic risk factors. 412 Howells and his colleagues said that: "In addition to depression and anxiety, a range of psychiatric disorders have been shown to elevate the risk of self-harm, particularly schizophrenia and substance abuse/dependency.”

Elevated depression has been identified as an antecedent for self-harm and suicide both within and outside prison and, in particular, a sense of hopelessness and pessimism about the future. "One feature of depressive thinking that is strongly correlated with self-harm is hopelessness (Bonner & Rich, 1990; Hayes, 1995), characterised by pessimism about the future and a sense that nothing will change. The causal pathways between suicide, depression, life events, and hopelessness are likely to be complex (Ivanoff & Jang, 1991).”

Howells and his colleagues comment that in some prisoners such thinking may be a stable feature of their functioning, whereas others lapse into such thinking in response to situational stressors. When depression is triggered by the situational stressors, and it would be simplistic to treat the depression alone as an individual pathology, and not take heed of the situational causes which triggered that depression. These categories are not mutually exclusive and causation is likely to be multifactoral, operating differentially with different groups within the prison context, and not necessary simple reflect suicide causation outside the prison system.

Situational, social and environmental stressors, in a prison context

It may be that prisons collect the "suicide prone", and that the suicide rates based on average daily prison populations cannot be meaningfully compared with suicides within the general community, unless the comparison is between equivalent demographic groups. Even then the prison context may be a significant factor in the higher rate of suicide in prison compared to the general population, and the greater suicide risk presented by certain segments of the prison population in comparison to the prison population as a whole. That may reflect the situational, social and 116 environmental stressors, in a prison context and the subjection of many inmates to unacceptable levels of stress. Liebling says that: "Young prisoner suicides are less likely to resemble suicides in the community and are less likely than other prison suicides to show evidence of psychiatric illness, suggesting that prison-related factors may play a significant and distinct part of their causation" 413

Liebling refers to studies demonstrating that the level of stress experienced by inmates was higher during the initial phase of imprisonment and diminished as inmates adjusted to prison life. She points out that most suicides occur during this initial phase, at a time when the (identifiable) stress factors are most numerous, but such stressors continue throughout the duration of the sentence. The view of Liebling and others is that this results in a "continuum of distress", rather than a specific illness or depressive condition with recognisable symptoms, and that suicide may take place if and when a critical threshold is exceeded.414

These features of prison suicide have been known for in excess of 100 years. In 1880, Dr Gover in the first UK published survey of prison suicides, observed that the most vulnerable to suicide were first time prisoners and those on remand, and that suicides occurred most frequently during the first week in custody.415 Although most suicides occur early in custody and decline in frequency as the time spent in custody increases, it is said that: "there appears to be no time during a term of imprisonment that is safe from a suicide prevention standpoint ...there are many suicides that occur when the victim could be considered to be over the hurdle of adjustment and these are quite unforeseen by staff".416

Prison induced stress has been suggested as a critical factor in prison suicide and allied with the concept of stress, is the concept of coping. Backett, (1987) suggests suicide may take place when a critical threshold is exceeded. This threshold may vary, depending on a balance between the factors themselves and the individual capacity to cope with this stress. In examining prison induced stress, the focus shifts from the personal characteristics of the individual, to the factors which might exacerbate individual vulnerability. Despite the maximum impact being felt at the beginning of the custodial experience, different events may impact at different stages during detention and accumulate over time. Johnson and Toch (1982:82) argued that this stress could have a destructive effect on the institution and its staff, both in the long term (accumulating a society of severely damaged people; contributing to recidivism) and the short term (contributing to suicide and self-harm): "If a prisoner is placed in an unbearably stressful situation with no means at his disposal to cope with this overwhelming experience, he may direct his feelings of hopelessness towards himself. This 'self-destructive breakdown' has been identified as unique to the prison setting, and it is seen as an index of personal difficulties that face prisoners".

The abuse of alcohol and drugs

Alcoholism is said to contribute to suicide in the community, either directly or indirectly, impairing health and social functioning and is also associated with depressive illness. Drug and alcohol withdrawal, addiction and abuse has been a factor in deaths in custody, in the management and treatment of prisoners with impaired health, and is a factor in suicide and self harm. For service planning purposes I have recommended that research, both in the general community and the prison, should be conducted into the links between Mental health and substance abuse.

The unauthorised movement of drugs into prisons, including Risdon Prison, and its implications in relation to security, discipline and morale are also problematic. Bullying, intimidation and assaults are linked to the traffic in drugs, and such stress may precipitate suicide or self-harm or be a factor

117 in the use of the hospital for non medical reasons. Some studies indicate that the abuse of alcohol and drugs by offenders prior to imprisonment is extremely high. Many of those interviewed were of the view that the misuse and abuse of drugs in the prison population at Risdon had increased and was a factor in many of the difficulties underlying the management of those in custody. This is referred to in the accompanying report on the Risdon Prison.

The prison environment and activities

The European Prison Rules adopted by the Council of Europe state: "Sufficient work of a useful nature, or if appropriate other purposeful activities, should be provided to keep prisoners actively employed for a normal working day". There are also studies which indicate that inmates with the fewest opportunities to occupy themselves (including self-induced), were least able to cope with the boredom and isolation of confinement to a cell for long periods of time, and that for some youths the need for activities reaches extremes.417

At Risdon the decline in prison industries results in about half the inmates in the main prison neither working nor engaging in activities, programs or any meaningful activity. The rationale for the reduction in prison industries apparently was that the industries had to make a profit. The emphasis has been apparently on securing a financial return rather than the rehabilitative aspects of engaging in work for the purpose of alleviating boredom, increasing OH&S and work related skills, giving access to a minimal earning potential and distributing the available work through a greater proportion of the prison population.

The present Manager of Prison Industries is aware of these issues but the overall control of the distribution of the available work more extensively throughout the prison population is primarily determined by the Director of Prisons and the Director of Corrective Services. In failing to actively pursue a strategy where the available work is distributed amongst the greatest number of prisons, even by having some teams from one yard working in an industry in the morning and another team in the afternoon, the rehabilitative aspects of work, or the value of meaningful activity, appears to have been given a very low priority. I consider that this is to the detriment of the prison system.

11.2 RISK MANAGEMENT

Standardised risk assessment tools

Suicide prevention strategies involve procedures for appropriate risk assessment. Suicide prevention strategies within prisons are primarily concerned with the placement of inmates in safe prison cells, close observation including disarmament, (removal from inmates implements which might be used in acts of self-harm), video monitoring and overt surveillance, treatment of any underlying psychiatric illness, risk assessment, intake screening, and staff training.

In Tasmania a standard form is used by reception and nursing staff for screening upon admission to Risdon Prison and Hospital. In relation to the assessment of persons at risk, suicide categories and codes were developed by FMHS and the hospital staff some years ago in part in response to the Aboriginal Deaths in Custody Royal Commission. The risk assessment screening procedure is generally regarded as a useful primary prevention tool to help identify at risk individuals. It is accepted that not all at risk individuals will be identified, and some identified as at risk, will be found not to be so. Regardless of risk prediction difficulties, it is recognised the beginning of detention is a high risk period, and that there are certain other predicators of risk.

118 Prison officers use a risk assessment based on a questionnaire418 and a further assessment is undertaken by nursing staff who use a standard interview form for screening on admission and make such other enquiries, observations and referrals as they consider necessary. This assessment establishes the initial risk assessment category and management. If a person is assessed as being at risk, there is a procedure for referring that person for specialist assessment as a matter of urgency. In some respects the policies, categorisation procedures and documentation at time of admission are adequate, but there are some major omissions. One is that the conduit of information from family and other sources to alert custodial authorities and health practitioners to an ‘at risk’ detainee is poor and secondly that there is a paucity in individualised care plans, case management and standardised assessment tools to monitor ongoing progress.

The standardised assessment tools to monitor ongoing progress are under utilised. Ms Muskett419 stated that the ongoing documentation and care management needed to be improved to help diminish suicide attempts by inmates who had been incarcerated for substantial periods of time. Part of this involved care plans to augment progress notes. She observed that: “Suicide prediction is a contentious and problematic process in any setting. The usefulness of measures intended to predict suicide is severely limited largely by the nature of suicide itself and .. that a number of persons with serious suicidal intent are undetectable given our current knowledge and screening methods.”

While this observation is no doubt correct, the identification of suicidal inmates has generated a number of tools and formats, such as the Gaol Mental Health Service Screening device 420 which are accepted as part of suicide risk management strategies. Ms Muskett was of the view that contemporary nursing practice involves the use of standardised assessment tools to monitor ongoing practice, but this was not evident at the hospital.

Given that the Prison Hospital is a designated special facility for those who are mentally ill and subject to a restriction order, the ongoing assessment process is in my view a critical tool in the assessment of ongoing risk and should be utilised. I have recommended accordingly. The procedures for the management of suicide and self harm have been substantially revised since this investigation concluded. The details are contained in the DHHS and DJIR response to the recommendations.

Safe cells and the elimination of suspension points

The States vary in their responses for managing suicide risk. One of the common strategies for managing suicide prevention has been to reduce the opportunities for suicide by designing safe cells to eliminate potential hanging points and opportunities for self-harm. It has been said that this focus on "suicide-proofing" cells is an attempt to remove the opportunity to self-harm, rather than removing the motivation for self harm, or providing support that would off set this impulse (Atlas, 1989).

The Royal Commission,421 while recommending "the design of safe and humane police cells", also referred to the need to reduce the motivation for self harm and commented that: · It is recognised that the architectural aspects of cell design are probably less important that the quality of care and professionalism of the supervision provided by custodians as the latter can reduce the motivation to suicide or self injury. · There is also concern that attempts to reduce the opportunities for suicide or injury may increase alienation and disorientation and thus increase the probability that detainees may engage in self destructive behaviour.

119 · It is accepted that even the most careful design and construction will not eliminate entirely the possibility of deaths in cells.

During the course of this investigation regard was had to recent research which indicated that it is questionable whether traditional practices (ie. placing "at risk" inmates in cells with no furniture, tear-proof blankets, mattress and pillow covers, no clothing and limiting human contact to conversation through a small opening in the cell door) has beneficial outcomes for inmates. Studies indicate that these practices are detrimental unless consideration is also given to the critical therapeutic importance of human contact, and measures are taken to avoid social isolation for those inmates. I accept that cell design should reduce the opportunities for self harm by removing hanging points but the management of those at risk should aim at reducing the motivation for self harm.

As reiterated in the coroners report, recommendations in past coronial inquiries have not been attended to and patients and prisoners are placed in cells where suspension points are abundant and monitoring almost non existent. Ms Muskett noted that many of the cells in the “special institution” designed as “suicide-proof cells”, still contain multiple suspension points and easily vandalised light fittings which have been subject to coronial recommendations in the past. She was of the view that the recommended modification process should continue to eliminate suspension points until the issues of "safe prison cells" are researched more fully. Ms Muskett queried bars and suspension points in other areas (such as east wing where 3 suicides have now occurred) and in particular why there was a need to have bars on the windows when shatterproof glass in limited opening window frames could be used. In her view fittings, such as the towel rails should be attached with sheer pins that break if exposed to weights above a certain point.422

Ms Muskett observed that there is a very real dilemma in trying to eliminate all potential environmental risks from custodial settings and at the same time provide a more humane setting as items such as beds, hand basins, light fittings, showers, desks and chairs all provide a multitude of potential suspension points which become part of the readily accessible environment. She comments that: To eliminate these potential risks extremely stark surroundings become a necessity. Despite the questionable benefit of isolating psychiatrically disturbed inmates in stark, inhospitable surroundings such as a "safe prison cells" there seems no other alternative or "guaranteed safe" methods of tackling this issue. Reliance on traditional measures of identifying the 'at risk" group and isolating them into designated safe cells alone has failed on several occasions in past deaths in custody and is therefore not the only answer. Just as beneficial in other settings has been ensuring frequent interaction with, and observation by, trained mental health professionals.”

I would endorse the observations and conclusions reached by Ms Muskett as consistent with the views of the consultants and information obtained during my investigation. I am critical of the failure to implement many of the recommendations relating to cell modifications made by past coronial inquiries into deaths in custody and have recommended that the elimination of suspension points and the process of cell modification continue. The efficacy and role of “safe prison cells” in managing inmates who are at risk of suicide or self-injury, is however largely unquestioned especially in Australia. Whereas suicide proofing of cells may reduce the opportunities for suicide, social isolation, alienation and disorientation is unlikely to reduce the motivation for self harm and could increase the probability of suicide or self harm. The following addresses the potentially adverse impact of ‘strip cells’ and social isolation in terms of suicide prevention.

120 Strip cells and isolation

The use of strip cells has come into question in other jurisdictions in recent years, and other approaches have been adopted. Some studies have suggested the humanisation of cells and increased social interaction as an alternative to "suicide proofing" cells. The safe cell policy in NSW instructs that no inmate is to be stripped naked and placed in a cell, but is to be appropriately clothed and under 24 hour continuous observation.423

Strategies such as “strip cells”, electronic surveillance, and passive observation are preliminary prevention measures but, although they may temporarily remove the opportunity for self harm, they do not necessarily address the motivation. The 'strip cells' and the built environment of the prison and hospital also imparts messages which influence how custodial officers, staff and inmates behave in such a setting. It has been said that the 'setting' provides the lines and scripts and sets the stage for interactions, and in a 'strip cell' that setting can be dehumanising and alienating. The design challenge, is to create an environment which both accommodates the physical prevention and security measures, but at the same time reduces the negative aspects of that environment.

Other studies have suggested the humanisation of cells and increased social interaction between the prisoner, detainee and staff. In submissions to the Royal Commission there was considerable consensus on minimising sensory deprivation by, for example, direct visual and sensory access to the outside environment, and providing the individual with as much control over that environment as is possible and practicable. The Commissioners referred to the need for cell design to reduce isolation and to increase personal interaction between officers and inmates, and between inmates as a means of reducing isolation, despair and hopelessness. They referred to:- "the key importance of human contact and interaction between prisoners and officers - and of course, amongst prisoners themselves. Such basic human contact may decrease the feeling of isolation, despair and hopelessness which appears to precipitate self-harming actions; and it may also encourage complaints and provide observation of symptoms of injury or will health which call for medical attention”. 424

Some studies suggest the humanisation of cells to increase social interaction as an alternative to "suicide proofing". The use of 'seclusion' rooms in the US has been restricted since 1975. Seclusion rooms are supposedly restricted to the short term management of violent patients under medical supervision, and the view expressed that such an environment effectively constitutes "a sensory deprivation chamber, which combines the stress of solitary confinement with minimal sensory input” and can markedly increase distress, reactance and experienced isolation.425

The Massachusetts Special Commission (1984) considered that placing the detainee in isolation greatly increased the chance of suicide as depriving the person of human contact could intensify an already traumatic situation and hence lead to a suicidal crisis.426 Judge Tummin in 1990 (UK), suggested that conditions, facilities and the prison environment can compound the problem of self harming behaviours, and that "the destabilising effect of sensory deprivation produced by harsh regimes and containment in a cell, with or without others, for over 20 hours a day" created a depressing life for inmates. (Home Office, 1990).

The use of “strip cells” at Risdon Prison Hospital

Strip cells, where the person is stripped of all clothing and possessions in an effort to reduce the chances of harmful behaviour, are still used in Tasmania. Mattresses and bedding in some observation cells at the Risdon hospital are specially designed to be suicide proof. The Prison Hospital is currently investigating the cost of importing a special suicide garment. While the

121 Risdon Prison Hospital cells are a reasonable size, the physical layout of the premises, the merging of the long term inpatient population with those being admitted on a short term basis, the long lock up time (in excess of 16 hours a day in isolation), and many other factors would increased social isolation and inhibit social interaction.

Isolation, seclusion and segregation all are factors which need to be considered as some studies have concluded that isolation can be counter-productive in the prevention of suicides, just as social isolation is an important factor in suicides outside the prison. Solitary confinement for disciplinary offences, seclusion for protective custody, or placement in observation cells in a stripped condition while on a suicide risk category might also contain factors which may, in the absence of countervailing actions, contribute to risk.

The use of 'strip cells' for women prisoners, under suicide observation was particularly problematic. One inmate alleged that on one occasion when she was suffering drug withdrawal symptoms and was attempting to prevent the removal of her clothing, she was charged with assaulting officers. On another occasion she stated that she was menstruating and allowed only to keep her panties on. Both instances raise the question of whether a person deemed to be at risk should have their clothes removed by force. One nurse interviewed referred to a women some years ago who had apparently been charged with killing her infant and who was put in the strip cell. They said she was suffering a degree of distress and mental disorder, she was lactating and her breasts engorged, and could be observed through the glass window by nursing, custodial staff, inmates or whoever was passing. A number of those interviewed referred to the problem of privacy and women patients at risk and under observation. The observation cell now has a curtain when women inmates are on a high risk classification whereas the preferred approach would be to allow a person to retain their clothing but keep them under 24 hour observation with reasonable interaction.

Those on suicidal observation in the strip cell, adjacent to the central control, were also exposed to "people who are basically able to mill around outside" the observation cell. Some nurses were uncomfortable with the dilemma between passive observation and the possible negative effect of that experience. One nurse expressed a view that the use of the strip cells was not necessarily conducive to good mental health, when a person was suicidal, to be inside the glass observations cell, exposed to view and “feeling like a goldfish."

Mr de Bomford considered that 24 hour observation, similar to the policy and practice in NSW, rather than “strip cells” was dependent on having the staff available to maintain constant observation. He referred to a safety smock developed by Ferguson Safety & Products in America, made of tear proof vinyl, and said he had made enquiries about buying the smock, that would keep those under observation relatively safe without being naked or semi naked. The ability to maintain sufficient suicide EQuIPment was problematic. Mr Muskett referred to a remand centre prison officer ringing to request a suicide blanket to replace a suicide blanket that had been torn to pieces and on that occasion they had no spare at the hospital.

I would recommend that in light of the development in other states that the "strip cell" practice be reviewed with a view to adopting the NSW policy and practice of 24 hour observation and that the strategies to reduce the motivation for self harm be revised and better developed. That modification of cell design and the removal of suspension points is to be undertaken immediately to reduce the opportunities for self harm but that the management of those at risk be reviewed, and include strategies aimed at reducing the motivation for self harm.

122 Electronic surveillance

Improved observation in some instances has included electronic surveillance. Cameras are used to maximise the observation of inmates who are also checked by staff at short timed intervals. Caution has been expressed that camera observation can reduce personal interaction and also its effectiveness is reduced by EQuIPment malfunction, blind spots and poor staff vigilance.

In the Risdon Prison Hospital there is one cell under closed circuit observation from a central observations station and direct observation of the adjacent cells but no direct observation of the cells in the wings. Each cell is a single cell and during the 15 hours lock down time from 4.30 p.m. till 7.30am inmates cannot hear or observe each other. This removes the capacity of inmates to observe or warn staff of risk. There appears to be no intercom system and no alarm or distress button in cells. The personal alarm system at the Hospital entrance and in the round house do not work which also raises OH&S issues as well as patient safety.427 Curtains had been put in observation cells to give female inmates privacy, but as nurses pointed out, this did not allow adequate observation and in any event, increasing the number of cells under electronic surveillance was not a guarantee of vigilance as the "cameras are only as good as the eyes that are on them."

Proactive measures rather than impersonal observation

For various reasons it appeared that the observation of suicidal prisoners at Risdon Prison Hospital, inclined to being passive and impersonal. Sometimes the use of observation cells exacerbated the inmates distress or frustration, particular if there was uncertainty about when the reassessment for downgrading the risk classification would be made.428 The impression from those interviewed was that the deaths in custody had demoralised nursing and custodial officers, who were reactive to crisis, fearful of being seen to have failed their duty of care, and powerless to implement any better system for the management of those at risk.

Professor Howells et al is of the opinion that the methods of observation of a suicidal prisoner should be active rather than passive, involving supportive contact rather than impersonal observation. He states that: "Whilst observation cells are an important management strategy for a small number of high-risk prisoners, the efficacy of such cells ultimately lies in their use in facilitating communication between the prisoner and prison staff, so that stressors can be identified and problem solving strategies adopted.” 429

In their view: "Once the immediate crisis and the acute threat of a suicide has diminished, a clinical decision will need to be made as to whether the prisoner retains a chronic vulnerability that may need to be addressed therapeutically. Long term care involves both for mental health factors that contribute to self-harm and attention to the prison environment whereby risk factors associated with the personal experience of imprisonment can be addressed".

They suggest that what is required in many prison systems is a unit, managed by a psychologist but staffed by prison officers and with good medical support, dedicated to the care of at risk prisoners. They suggest that this unit, using case management principles, should also include structured employment and recreational opportunities, as well as treatment for suicidal and self harming behaviour.

123 The investigation into the Risdon Prison Hospital, the management of inmates with personality disorders, the mentally ill and those at risk of suicide and self harms, supports the approach suggested by Howells. The consultants also made a number of recommendations, including a formal review of the current practice of inmates felt to be at risk of self harm, and a greater commitment to staff training which I have accepted. The change to a more participatory, proactive or rehabilitative approach would require a greater commitment to staff training by management. Communication between corrections and health staff is essential, with appropriate regard to balancing privacy and patient confidentiality with ongoing risk assessment, monitoring, case review, and case management. The Victorian Correctional Services Task Force “Review of Suicides and Self Harm in Victorian Prison” November 1998 is instructive.430

Custodial aspects of management

It was clear from those interviewed that the custodial aspects of management were sometimes regarded as being contrary to therapeutic management of inmates who are mentally ill, disturbed or at risk. This was the conclusion reached by Coral Muskett in her review for the DJIR.431 The review referred to the tension between a custodial and therapeutic environment: There is a decided tension between the philosophies of custodial models and those of a therapeutic/treatment approach for inmates who have a diagnosed mental illness. This tension is one that is not easily solved given the rigorous security requirements of a prison environment, the subordination of health professional interests to security protocols and the limited health professional resources. This approach is now becoming dated in many other forensic/psychiatric settings.

A similar view was expressed by the consultants, is consistent with the WA Ombudsman Report into Prisons, and with the conclusions arrived at in this inquiry.

Suicide prevention and corrective services officers

Custodial officers at the Risdon Hospital, who shared much of the responsibility for suicide prevention and the management of those who sometimes repeatedly self-harmed, to some extent appeared marginalised and caught between two cultures. Much of their day at the Hospital is regimented and routine; locking up, unlocking, counting, escorting, receiving, discharging, searching, checking, assisting the nursing and medical staff, observing and assisting inmates. Many had elected to work in the Hospital and had personal attributes which would allow them to balance security requirements with humane patient management but in practice, under the present system, there was little capacity to do so.

In terms of training, the corrective services officers in the main prison as well as the Hospital, should have incorporated into their training practical information about "prison induced stress", the role of the prison hospital, and basic concepts of rehabilitation and behavioural management. In relation to suicide prevention the custodial officers considered that basic information and training would better inform their observations and was relevant to their role in suicide prevention. Some were sceptical of the value of timed interval observations of those on high risk categories and expressed a view that the requirement to observe at say, 15 minute intervals, was unlikely to deter the determined suicide as a self inflicted death could be accomplished immediately after the observation round. I accept that routine timed observations should not obviate the need for other prevention strategies including radios, intercom and cell alarm system, consenting shared cell arrangements, untimed informal observation rounds and more social interaction.

A number of custodial officers had developed an extensive knowledge of patients and inmates over time, and were able to pick up changes of patterns of behaviour, cues, and actions which might be 124 indicative of increased risk. They believed that their observations ought be communicated and taken into account. The perception of some custodial officers is that their observations were not regarded as relevant although they were uniquely placed to make such observations and to bring them to the attention of the psychiatrist or other medical personnel. A number of officers considered that they had intimate daily knowledge of those in custody, and their observations could bring relevant matters to the attention of the psychiatrist, which might not be apparent in a consulting session.

Dr Jager said that it had not been his practice to either encourage or discourage custodial officers communicating their observations. He expressed an opinion that some of the custodial officers were very perceptive, and he considered their observations about patient behaviour particularly useful. He said what might be being misconstrued was his attitude to inmates retaining a right to confidentiality and a right to make an informed consent about treatment. This may be so but custodial officers described incidents where they believed Dr Jager had dismissed their observations which they believed were indicative of increased risk.432 This primarily related to the content of Mr Newman’s correspondence where it was said that a response was made to the effect that the officer should not have been reading Mr Newman’s mail.

In one sense, the concept of privacy and granting to an inmate or patient as much control as is consistent with safety and security, is part of a normalisation process and allowing uncensored communications with others outside the institution is part of this process. However, the duty of care involves a proper risk assessment to minimise a risk of self harm. This involves balancing privacy issues with prevention of suicide and self harm and, in a custodial environment, may include cognizance of the views of custodial officers who, although untrained, are in daily contact with detainees.

I accept that at times such observations are relevant to the assessment of that inpatient and there ought to be a system for incorporating the observations of custodial officers in a risk assessment process. The information taken into consideration by a psychiatrist in exercising a professional judgment is, in my view, a matter of experience and choice. Differences in professional style or approach are matters I am not concerned with unless there is a failure to take into account matters which are relevant to risk assessment. In my view, custodial officers ought to be involved in certain aspects of the management of the hospital and patients, as their tasks extend beyond the security of the hospital, to the safety and well being of the inpatients. They too have a duty of care to those in their custody. I would support their involvement in planning, particularly in relation to the management of inmates with severe personality disorders who are difficult to manage, and believe that communication between all those responsible for an inmates care, needs to be facilitated across professional boundaries.

Communicating information about at risk detainees

Information is critical to an informed risk assessment and not all those initially assessed on their reception to the prison, would be willing or have the capacity to impart information. Partners, family members and others need an effective channel of communication to impart relevant information. They may have no experience of the criminal justice system, the prison hospital, or FMHS and be uncertain as to who they can contact, where and when. Communication at the point of reception screening is a very important part of the risk assessment system. I have recommended that at whatever point they come in contact with the system, they be given a card with the contact numbers of the police watch house, remand, reception and the prison hospital to better facilitate this communication.

125 Mr Holmes” partner also objected to the fact that, although she was recorded as next of kin, lives locally, and had visited Mr Holmes at the Prison Hospital, she was not contacted by the hospital and informed of Mr Holmes” death. I consider that her objection was well founded and that protocols should be developed for notification to significant others regardless of their legal or marital status particular when a person has been nominated by the person detained and have recommended that, in the case of a death in custody or other adverse event, protocols be developed to notify partners or nominated significant others regardless of that person’s legal or marital status. Further, that a comprehensive patient database be developed along with a better conduit for receiving information about the pre-history of those at risk, including information from family, partners and others.

Minimising situational stressors

The initial screening is important but is only one aspect of a risk assessment system. The research shows that other stressors continue to impact on particular individuals throughout the entire sentence or period of detention in what Liebling refers to as a "continuum of distress”. Ongoing stress needs to be monitored in inmates or detainees, particularly stressors associated with depression, suicidal ideation, and high levels of distress. Dr Lopes commented that those who wished to commit suicide had feelings of both "hopelessness and helplessness".

Similarly the research clearly indicates that effective risk management means minimising environmental or situational stressors. Only by proper identification of these stressors can there be better planned case management in relation to those in custody. This in turn will assist in planning what services are required by the prison and hospital and what resources should be allocated and where. The broader systemic issues relating to the physical environment of the prison, the social environment, and constructive detention will need to be addressed before there is likely to be a reduction in the risk of suicide and self injury.

Some of the suggestions for improving suicide prevention suggested by custodial officers and nursing staff included increased staff, better access to psychiatric services, ‘inter-disciplinary' training, a better distribution of training opportunities, a greater exchange of information, better consultation and a better functioning administrative or organisational system. The recent deaths left many of those we interviewed expressing concern, anxiety and stress about their role, and the perceived failure of the institution of which the hospital is a part. There was a loss of confidence both in their own role and the system.

Many also perceived that many prison related stressors or problems were systemic, and were beyond their sphere of influence. They confined themselves to doing their own work to the best of their ability, but with an attitude that whatever concern they expressed to management or those in charge, appeared to be disregarded. Morale was low, stress was high; there was a general attitude that there was no time to do developmental work and only a limited ability to interact with those in custody. There was a general perception that the system was both in crisis and reactive to crisis and the prison environment and regime was antithetical to good health care outcomes. I have accepted this as an accurate assessment of the situation. I also accept that it is appropriate to have a custodial and security focus within a prison to the extent which this is required to control and manage a prison population, some of whom may be recalcitrant and dangerous to others. However unless the prison culture also has a rehabilitation focus, and minimises detriment and harm, it is failing one of its primary social reintegration objectives and the State is failing to accord to a group of its citizens, basic human rights.

126 There has to be a better understanding of risk management. The model below is from the Victorian Correctional Services Task Force Review of Suicides and Self Harm in Victorian Prison. PRISONER MANAGEMENT PRISON MANAGEMENT · Listening and · Reduce prison stressors communicating · Recognise situational · Increase protective Pre-existing factors vulnerability triggers · Recognise signs of · Staff training increasing risk · Provide mental health services · Respond to stressors · Recognise emerging Prison mental disorder induced stress

Mental disorder Prison if present Situational protective triggers factors

Response

Not Recognised RISK OF SUICIDE recognised

11.3 ‘N’ DIVISION, SOLITARY CONFINEMENT, PROTECTION AND PUNISHMENT

During the course of this inquiry concerns were expressed about ‘N’ Division, the solitary confinement punishment wing in the main prison, and its use for those requiring protection. Many hospital and other employees expressed a concern about the placement of people seeking protection in ‘N’ Division. The widely held perception was that those needing protection who are accommodated in ‘N’ Division perceive it as punishment in that privileges are withdrawn, they are in isolation, the physical environment is harsh and they are under the same regime as prisoners who are there for disciplinary reasons. In essence they are in solitary confinement and isolation for in excess of 23 hours a day. In terms of social isolation, confinement in ‘N’ Division has hardly altered since the earliest days of penal settlement at Port Arthur in 1830 where those incarcerated in the punishment cell in the Model Prison passed 24 to 48 hours in isolation but those serving longer sentences were allowed a short time for outside exercise once every 24 hours until the sentence expired.433

Some nurses, the sexual health worker, inmates and former inmates and others expressed their concern about the physical environment and regime in ‘N’ Division and the problem of isolating vulnerable people in such an alienating environment for protection or reasons unrelated to discipline. ‘N’ Division was variously described as "a fairly spartan place" and as an “appalling environment”. Many including Dr Jager, described the Prison and particularly ‘N’ Division and the facilities for the mentally ill, as archaic and “dickensian”. A distinction was drawn between isolation as a punishment, and the inhumane and appalling accommodation provided for those in

127 isolation. The sexual health worker’s commented that isolation as a disciplinary punishment "doesn't mean cruelty in the sense of bare concrete floors and walls, cold, draughty cells”.

Father Alan Farrell (a former inmate) spoke of the state of the physical accommodation and his experience of being placed in ‘N’ Division in “protective” accommodation. He said: - “I was alarmed that I was going to be put in to the Remand Yard where I thought ‘anything could happen’ and I refused to go. One of the senior managers said, ‘Oh, well, we can give you protective accommodation’, and I was amazed to discover that I was put in the punishment cells at N Division. That was an experience in the depth of winter that I could not adequately describe to this day. The cell was filthy, for a start, because people who stay there are inevitably on punishment, therefore the walls were covered with excrement and dried food where people had thrown food, indeed, I spent, when I settled in there, within a couple of days I asked for material with which to clean the cell because I couldn't stand sleeping in that environment, and so I spent - it took me two days to do it, but I cleaned the place. Scrubbed the floors and the walls. I went on an immediate hunger strike because I thought this was so unjust that I was being placed there, but I now understand the reason. The philosophy behind this is that they don't want to give you protection because it’s too much trouble. It is much easier if you try and fit in. So, what happens is that they make protection as unpleasant as possible so that you are prepared then to take the risk of going into the general prison population. Well, the fact is, I was made of different stuff and wasn't going to take that and I never ate for seven days. I became very weak and fainted in my cell, I tried to speak to the great security guard, (name withheld) - one of the most invincibly ignorant men I have ever encountered in my life. His ignorance is so great it is impenetrable. You know, the light of insight has never crossed his face once in his life, I am sure. I tried to explain to him that this is punishment. ‘No, it’s not punishment, you are not being punished, you’re being protected.’. ‘Listen, I’m going through the same regime as those poor devils out there who are being in here on punishment.’.

‘N’ Division, if you have never seen it, is a cold, damp and dank place, the sun, like the light of insight on (name withheld) face, never penetrates there. And I slept in all my clothes, day and of a night time. The only things I took off were my boots. The concession to me, because I was not receiving punishment, is that I was allowed to keep my bedding through the day, such as it was. No sheets, of course, nothing like that. And I - technically, I could 128 have gone back to bed, I suppose. The others had to dispense with their bedding but I was allowed to keep mine. Well, I never did. I just kept moving around, hopping up and down in an attempt to keep warm. Of course, I wasn't eating, as I said, which means that I didn't have much internal combustion going on and, indeed, that may have contributed to the extreme cold. But ‘N’ Division is a place that cries to Heaven for vengeance. I mean, it is just a ghastly, ghastly place. It’s quite Third World. It is not Dickensian, it is medieval.”

Protection in a punishment division

One nurse stated: "I was quite shocked the first time I saw it, it took me a long time to understand the rationale behind it. I can understand the rationale behind it now”. While he accepted its use for punishment for disciplinary offence for hard core criminals, he objected to its use for those needing protection It was said that " there is no real protection yard at Risdon Prison. The only place they can really protect you fairly well is in ‘N’ Division. And ‘N’ Division is also the punishment division so the person who is being picked on gets punished because of being picked on”.

It was widely perceived as inequitable and unjust that the victim was doubly punished by being placed in ‘N’ Division but it was also widely regarded as a poor utilisation of the Hospital when those seeking protection rather than medical care were accommodated in the Prison Hospital. A number of the hospital staff referred to the hospital being used for protection purposes. One nurse commented "The prison hospital has a tendency to be used as an extra protection yard in that we have inmates that really need to be placed in protection yards and, consequently, we are getting the hospital filled up at times with people who are on protection”.

There was a broad consensus in the views of health care employees interviewed that protection yards should be for the people who need protection, that the Prison Hospital should be reserved for those requiring medical or psychiatric services, and ‘N’ Division should be reserved for punishment. Some considered that protection was a custodial and security function, and that it was preferable that the Prison Hospital had those cells unoccupied rather than admitting people for security reasons. The Prison Hospital was still regarded by most nurses as a necessary refuge in the absence of a proper system in the Prison to deal with violence and intimidation.

A number of people interviewed claimed that disciplinary action against the perpetrators of violence was sometimes lax and inconsistent and that even if a defaulter were put in solitary isolation in ‘N’ Division, he would return to his yards once his sentence was served, but the victim could remain in ‘N’ Division under protection or be moved between ‘N’ Division, other protection yards and the Hospital in what one nurse described as a “downward spiral”. Some of those interviewed claimed that some inmates on protection had been accommodated in excess of thirty days in ‘N’ Division, even though the legislation prohibits inmates being sentenced on disciplinary matters for longer than thirty days solitary confinement on any one charge. As a general rule it was said to be hard to generalise about the length of time protection prisoners spent in ‘N’ Division for protection, because some of those seeking protection from within a protection yard would transfer to other divisions.434

At the commencement of this inquiry, ‘N’ Division accommodated persons on punishment in solitary confinement, those requiring protection and those whose with severe personality disorders whose behaviour was difficult to manage. The protection prisoners have since been moved to "H" Division, and some maintenance undertaken on the upper level. Two cells have been converted to

129 serve as a common room but, so that inmates cannot be seen by other inmates in ‘N’ Division, the windows have been painted over, creating a timeless and oppressive atmosphere.

The conditions in ‘N’ Division in my view are appalling for any prolonged period. The cells on the lower level are small, poorly lit and ventilated, concrete cells, without windows. In the case of those thought to be at risk, inmates beds have no sheets and those in these cells spend some 23 hours a day with no furniture, other than the bed which takes up the length of the cell. There is an open toilet bowl in close proximity to the bed. There are two rows of bars, dividing each cell into two chambers. The first is no deeper than the length of the bed in which the prisoner is confined for 23 hours each day. The second wall of bars encloses an alcove area with the exterior door, which remains unlocked, access an external walkway used by custodial officers to move between cells. Apart from exceptional security circumstances, there is no reason other than the convenience of custodial officers, why inmates are confined to the inner cell and prevented from using the second chamber of the cell. Inmates are allowed out of the cell for an hour to shower and exercise by themselves in separate wired in enclosures which are bare of EQuIPment.

In the absence of conduct warranting a disciplinary charge, it is understandable that in some circumstances officers will try to transfer an unmanageable inmate, or someone requiring protection, to the Prison Hospital rather than accommodate the inmate in ‘N’ Division. In ‘N’ Division privileges, such as a radio or cigarettes, are denied and inmates are locked in solitary confinement for about 23 hours a day and unlocked to shower and exercise alone in a wire cage.

An adverse comment was made about this practice in an earlier Ombudsman inquiry but, despite an assurance by the DJIR that the recommendation was accepted and action had been taken, no such system had been put in place at the time of my investigation.435 The recommendation required a weekly review by the Operations Chief who each week was to record the reasons justifying the continuing accommodation of that inmate in ‘N’ Division. When checked during this inquiry neither of the two custodial officers in charge of then only 2 inmates (a third was admitted during the morning) could advise the status of the inmate who was not there on disciplinary charges but was there for protection. This was despite the fact that the inmate had complained about being denied certain possessions that he other wise would have been allowed in the Division from which he had been transferred. Nor were the custodial officers aware of the weekly review system. There was no register, to enable the record of the weekly review to be inspected, and it was apparent that the assurance had not been given effect to.

130 This failure to implement in practice what had been agreed in principle is symptomatic of systemic failures in the management of the Prison. In this instance the audit or monitoring of confinement of those in solitary confinement was impeded by the failure to record the continuing reasons for detention, nor was the Operations Chief, at that time Mr Greg Jones, being put into an accountability framework to ensure the proper care of those in ‘N’ Division.

The rationale of a record stating the reason for the continuing retention of the prisoner in ‘N’ Division and signed each week by the Operations Chief was precisely to require the person responsible to review and justify the continuing detention of prisoners in solitary confinement. Some might be sentenced for specified time on disciplinary charges, but it also appears to be a practice to place disruptive prisoners in solitary, purportedly pending an investigation into an alleged infraction but that investigation does not occur. As the legislation only sets a solitary confinement time limit on the sentence imposed for a disciplinary infraction, and not on the period in ‘N’ Division while an investigation is underway, it appeared at the time of my investigation that ‘N’ Division was sometimes used as a de facto disciplinary wing without charges being brought, although I acknowledge that the disciplinary procedures have been completely revised since that time.

DJIR contend that no prisoners in the Tasmanian Prison System are subjected to solitary confinement. The alternative that applies is that Section 61 of the Corrective Services Act 1997 permits a period of separation from other prisoners not exceeding 30 days for disciplinary reasons. This can occur through a confinement to a cell normally occupied by the inmate in an Accommodation Division or by separation to what is now called Division 8. DJIR advise that it was practice, now largely ceased, to house inmates in the then N Division for protection.436 ‘N’ Division also accommodates inmates with personality disorders whose behaviour is difficult to manage and prisoners placed in ‘N’ Division on protection.

In my view, such a record also provides an accountability framework which would better focus the role of the Prison Official Visitors appointed under s.10 of the Corrections Act 1997 and better facilitate their care, inspectorial and reporting function particularly in regard to some of the more vulnerable prisoners. Any person in solitary confinement ought to be regarded as vulnerable, as isolation can be a significant stressor and further erode their capacity to cope.

I have recommended that prisoners in ‘N’ Division be contacted daily by nurses and reviewed weekly by the VMO or appropriate health or welfare practitioner to determine whether the inmate is potentially at risk as a consequence of confinement in that situation of social isolation. Further that the Operations Chief maintain a weekly record of who is in ‘N’ Division, the reason for their detention and an acknowledgment each week that the situation has been reviewed. I acknowledge that since the conclusion of this investigation, there have been substantial changes initiated by DJIR and DHHS in relation to these prisoners. These are detailed in the agency responses to the recommendations.

Accommodating protection prisoners in ‘N’ Division or protection yards did not prevent ongoing intimidation. It was said that those who were placed in a protection yard would in turn attempt to control others, and that this focus needed to be changed. Dr Lopes referred to bullying, duress and inciting and spreading rumours, as significant prison stressors, and described the type of intimidatory behaviour inmates in ‘N’ division sometimes engaged in. It was generally considered that smaller groups might be better able to be managed in the prison system, where there would be less conflict and a far greater level of observation would be possible. Research and smaller units within corrections in Australia and in the Close Supervision Centres in the UK support the efficacy 131 of smaller units. One nurse believed that a lack of discipline combined with too many prisoners together in the one yard, combined with drugs created a volatile mix.437

I have recommended a separate unit for the management of prisoners with personality disorders and adopted the consultant’s recommendations that Corrective Services directly appoint an appropriate number of psychologists and social workers to assess and manage behavioural problems exhibited by inmates. The FMHS team would, by an appropriate mechanism, provide a consultation service to these workers.

It follows that I have recommended that the Prison Hospital admissions be determined by health professionals and the Hospital be reserved for those requiring medical care and services. This is now the current practice under the revised admissions policy to which I have referred above, and has required proper alternative accommodation arrangements be made for those inmates who are bullied, victimised or seeking protection who previously were accommodated at the Prison Hospital. It will continue to require Prison administrators to take appropriate actions to minimise assaults and threats by prisoners to alleviate inappropriate referrals to the Prison Hospital.

The “Stepping Stones” submission

The management of the young offender within the prison system was considered by some to be poorly carried out. Stepping Stones Inc submitted that the mental health and drug and alcohol related issues of young people warranted particular approaches, and neither the programs nor the expertise were evident at the prison hospital. They considered that the inadequacies in the main Prison led prisoners to seek safety and comfort in the Prison Hospital by feigning illness or suicidal tendencies. They submitted that: “Evidence that the facilities at the prison are draconian, unsafe, counter-productive to rehabilitation and not reflective of first world standards is no longer classifiable as anecdotal. One response by prisoners, who wish to escape freezing conditions or perceived risks of assault by other prisoners, is to “act suicidal” or appear to be depressed so that they can access the better physical conditions in the hospital. Given the other issues which we raise, it is obvious that this is not a good idea, but the benefits might outweigh the disadvantages.”

Stepping Stones Inc were critical of the failure to provide proper case management to those who might have been assessed at risk and were discharged back into the prison system with, they submitted, little or nothing done to address the factors that led to that person being at risk. They were concerned at the lack of follow-up or ongoing support and counselling for inmates assessed as having been at risk of self-harm or suicide. Stepping Stones Inc suggested that case conferencing should be part of case management planning to “to best provide the support needed for the survival of that inmate”. They submitted that it would be unthinkable in a community setting for an individual to be discharged from an institution in similar circumstances, with nothing in place by way of ongoing support. They expressed a view that: “There would appear to be little to be gained in admitting inmates to the prison hospital for treatment following an “at risk of suicide” assessment, only to return them to the very environment where the concerning behaviours / feelings first manifested themselves, having changed nothing”.

Having considered the submissions of health care practitioners and others, I have formed a view that the suggestion for case conferencing and better follow up and support for inmates at risk is sound. Two case studies were provided by Stepping Stones Inc. One related to one of the people who died in custody, and this was investigated by the Coroner. If the facts are as alleged in relation

132 to the other case, then the quality of care and management of both individuals was defective I consider that the submissions by Stepping Stones Inc. stand alone and I accept and endorse these recommendations as part of the care and management of inmates.

I have formed a view that there be a substantial increase in the number of out of cell hours spent by inpatients at the Risdon Prison Hospital and a greater focus on rehabilitation, including the formulation of individual care plans, the provision of appropriate programs and activities and facilitating community and family contacts which might enhance that persons eventual reintegration into the community.

11.4 SUMMARY

In making my assessment of the practices and conditions at the prison and prison hospital which potentially impact on suicide and self harm, I have accepted research that indicates that psychiatric illness factors have been overstated in prison suicide research. Recent research indicates that there are many factors and stressors which might generate psychological distress and the onset of a suicidal crisis, which do not necessarily amount to mental disorder. Some studies refer to a "pathogenic environment”.

I have formed a view that an effective suicide prevention strategy needs to reduce "prison induced stress” and that this solution requires many approaches including improved accommodation and facilities, a greater emphasis on rehabilitation, and a wider distribution of the available work in prison industries, combined with participation in a broader range of programs and activities. There are many aspects of patient care which can be addressed at minimal cost and a more proactive approach is needed.

Much of the research portrays suicide as a reaction to a "pathogenic environment", and unless there is a focus on quality of containment, the prison hospital environment will not achieve its rehabilitation objectives for those in custody or be a suitable facility for detaining and treating those who are mentally ill. Some communal activities or free association (where appropriate) should occur and hospital inmates should not be locked in their cells for some 16 hours a day. The built environment is ugly, noisy, all exterior lines of sight are through barred windows and doors. Only from the barred windows in some cells can inmates see outside and these bars provide suspension points.

Those in the hospital have little contact with the outside world, and this communication diminishes further over time, no doubt increasing social isolation and deprivation. In 1999 there were substantial changes in personnel due to retirements, transfers and new appointments. There was probably very little appreciation of the effect of the retirements in 1999 of Dr Lopes the Director of FMHS, Dr von Bamberger the Senior Psychologist, and Lucia Werner the Social Worker. Dr Benjamin, the part-time Registrar, transferred and some fours nurses resigned. For those detained under a restriction order for an indeterminate period in the closed and static environment of the Prison Hospital, with little social interaction and long periods each day in isolation, such changes could conceivably leave patients bereft, and with a sense of a loss of support. In the transition and adaptation to new personnel, and the formation of new patient-practitioner relationships, some of the longer term patients may have perceived the changes as having given rise to a more hostile, adverse or less supportive environment.

The patients in the Hospital have little control over their external environment and a limited potential for normalisation. Not all nursing staff were supportive of detainees, or low security long term inmates including forensic mental health patients, having more access to the world outside.438 133 I tend to regard such restrictions in a hospital as necessary only to the degree consistent with the security and good management of the institution, and the proper conduct of the inmate or detainee. I accept that rehabilitation and reintegration will involve a diminishing of the restrictions on communications, but providing that security, supervision and censorship is exercised for proper purposes, including alerting health care professionals to matters about which they ought to be aware to enable them to respond appropriately, I consider that it is appropriate and security needs to be balanced with privacy, therapy and rehabilitation.

There is little in the way of industries or activities in the hospital; a few (about 6) Hospital patients exchange library books once a week, even fewer participate in education programs, and a large part of the time is taken up with the routine physical requirements of three meals, personal hygiene, cleaning cells or having their health or psychiatric care requirements attended to. The restraints on staff are such that rarely is there time to take inmates outside and the time spent locked in cells has increased, because of staff shortages, to an unacceptable level. The ratio of custodial, hospital and professional staff to inmates has decreased at a time when the prison population has increased and this is to the detriment of patients as they are deprived of meaningful activities.

At present the Hospital operates under a maximum security prison regime irrespective of classification of prisoners who are inpatients and the legal status or actual security requirements of forensic mental health patients, some of whom may be a danger to themselves but not to others. There needs to be a better separation of patients according to treatment requirements. In particular those who are mentally ill should not be housed in a prison Hospital under a prison regime but should be accommodated in a separate secure psychiatric unit, outside the prison system. Within the Prison Hospital a separate secure wing should be retained for the relatively passive or long term low dependency patients who are not dangerous and who do not present a security risk and there should be access to a common room and external courtyard, part of which should be a garden. The cells in this wing should be unlocked during the day, and the lock down times and personal surveillance reduced.

Generally speaking, the plans for building alterations and the use of the south wing of the hospital as a behavioural management/therapy unit, is supported though such a unit need not be located in the Hospital. Although such disorders are generally regarded as not responsive to medical treatment, some respond to behavioural management. There appears to be a need for smaller units within the prison, similar to the UK Close Supervision Centre model, where special and individual care can be given to inmates who can't function well in a normal prison system. Such a Unit may include inmates with psychological problems or severe behavioural disorders, many of whom appear to be routinely housed in ‘N’ Division. There is also a need for a crisis intervention system in relation to individual prisoners whose conduct is unmanageable, and proper resources for adequate psychological assessment, therapy and management.

References were made by a number of those interviewed, both present and former staff, to the lack of an activities program in the Hospital by comparison with previous years. The longer term custodial officers in particular pointed to adverse impact of the decline of the prison industries, a reduction in training opportunities and apprenticeships, a lack of clear and consistent discipline, and advocated a clearer demarcation in security classifications. Most deplored the closure of the Ron Barwick Medium Security, viewing this as a retrograde step.439 They identified a number of problems in the main prison which impacted in various ways on the prison hospital. These included the level of disturbance and volatility, boredom, bullying, violence, stand over tactics, drugs, protection and security issues, the unmanageable size of the units, and the diversity and increase in size of the prison population. Nursing staff generally shared this perception. Measures 134 need to be taken by prison management to address some of these concerns. My view is that those with a capacity to work or engage in programs should be encouraged to do so, to the extent of their medical or mental health capacity.

With the limited resources available to the hospital there is an emphasis on security and the physical care requirements, rather than a therapeutic or more humane environment. There is an emphasis on security, containment, and passive observation, and similarly the suicide and self harm prevention strategies in the prison Hospital appear to focus on suicide proof bedding, strip cells and observation, rather than negating the other negative aspects of isolation and sensory deprivation.440 Removing the motivation to suicide is a critical suicide prevention strategy. The use of strips cells can potentially exacerbate a sense of helplessness and hopelessness. “Strip cells are an inhumane and ineffective method of suicide prevention, which future generations of psychiatrists will look back on with shame.” 441 As previously indicated, I consider that this practice needs to be reviewed and have recommended accordingly.

There is only one nurse on duty at night and the minimum 5 minute delay in response as the cell keys are at the main gate at night. This makes it highly unlikely that a resuscitation of a person who had attempted suicide by hanging would be successful. This system is not supported and there is no valid reason why the previous system of retaining the keys in the Hospital was changed. There is a paucity of basic CPR training or revision to retain these skills. The isolation and lack of meaningful activities which may contribute to self-harm and suicide, in my view, has not been adequately counterbalanced by more proactive individualised patient care plans, rehabilitation programs and activities, use of ongoing standardised assessment tools, the separation of patients according to their health care needs, a reduction of the hours spent locked in cells and other measures to create of a more therapeutic environment and a better health care setting.

There was a widely held perception amongst those interviewed of a low morale and sense of malaise. Some nurses and custodial officers had a very professional attitude to their work and were affected and stressed by the deaths in custody. Some were defensive, suggesting that there was a culture of blame and that they were scapegoats for the ills in the system and some appeared to limit their task to surviving their shift. The level of communications between officers, nurses and the Hospital and the main prison about incoming prisoners or those being discharged was poor. Some nurses maintained their professional competencies by undertaking training courses independent of their workplace, in their own time and at their own cost. I acknowledge that since the conclusion of this investigation, there have been substantial changes initiated by DJIR and DHHS in relation to strategies to minimise the risk of suicide and self harm. These are detailed in the agency responses to the recommendations.

135 12. CONCLUSIONS

Prisoners and detainees have the same right to access, equity and quality of health care as the general population. Because prisoners will return to society after their imprisonment, their health is an issue of concern to the general population. The health of prisoners is also important for the occupational health and safety of the staff of correctional facilities. (Australian Medical Association. Position Statement on the Health Care of Prisoners and Detainees. 1998)

The State has a special duty of care to persons in custody. As stated in the Royal Commission into Aboriginal Deaths in Custody - not only are the persons in custody deprived of their liberty, they are deprived of the ability and the resources to care for themselves. The key issue for this investigation was whether the State, through its agencies the DJIR and DHHS, fulfilled its obligations to those in custody.

The difficulty of providing health care in a custodial environment with aging infrastructure, largely neglected by successive Governments, is acknowledged. Regard was had to the rapid increase in the prison population, and to the fact that it is a “special needs” population with a high rate of mental and physical health problems, drug dependency, and a higher than the national average percentage of people under 24 years of age and over 65. Also considered was the increase in the average length of custodial sentences, as well as the impact of a prison regime upon the capacity of the Hospital to provide appropriate health care.

It was in this context that the Prison Hospital and the “special facility” have been evaluated. The opinions I have formed are that the “special facility” at the Prison Hospital is unsuitable for the detention of the mentally ill and that a separate secure psychiatric unit should be established independent of the prison system. I consider that the provision of forensic mental health services was inadequate and that both Departments and Dr Jager were in breach of their duty of care for the reasons set out in the Coroner’s report and in this report.

I have concluded that the Hospital is not a therapeutic environment for the care and management of the mentally ill and that the status of the Hospital as a “special facility” pursuant to the Criminal Justice (Mental Impairment) Act 1999 and the Mental Health (Special Institution) Order 1979 should be revoked and a suitable secure therapeutic psychiatric unit located outside the prison system should be established and declared a “special facility” for those detained under a restriction order. This recommendation is in line with national trends. It is recognised that the number of those detained under a restriction order will fluctuate, and in some instances only involve a few long term forensic mental health patients, but it is in my view essential that they are accommodated in a facility outside the prison system as soon as practicable.442 Those who are unfit to plead or not guilty by reason of insanity are presumptively innocent and should not be detained with prisoners under a prison regime. In the interim there is an inadequate separation of patients in the Prison Hospital according to treatment needs which should be rectified immediately.

I have concluded that the Prison Hospital does not provide a suitable therapeutic environment and that this will not be overcome until measures are taken to ensure that confinement is more humane. The criteria used to measure performance in private prisons has led to the development of a "quality confinement index" consisting of dimensions such as "security, safety, order, care, activity,

136 justice, conditions and management" (Logan 1992). I have recommended the use of such a “quality confinement index” to evaluate the custodial environment and the quality of care of those detained in the Hospital and “special institution” to give both institutions the capacity to achieve recognised standards and measure their performance against acceptable health outcomes. I also believe that the Hospital should seek accreditation as this will impose competency requirements and performance measures. I have recommended that the Quality Improvement Council Health and Community Services Core, Primary Health Care Modules and Mental Health Standards be utilised by the Prison Health Service to implement best practice in service delivery and the Prison Health Service aim for accreditation within an appropriate time frame.

I have concluded that the absence of an appropriate therapeutic environment in the Hospital is a factor likely to increase the incidence of suicide and self harm. I have recommended a formal review of current management practice relating to those considered to be at risk of self harm. The practice of using “strip cells” for observation needs to be urgently reviewed. In my view their use may exacerbate a person's distress and bring about a further sense of alienation. A modified physical environment, increased observation, a constantly illuminated observation cell, removing a person's clothes and other restrictions, might remove the means of giving effect to the intent to self harm but will not remove the reasons or motivation. Ongoing risk management strategies and standard measurement assessment tools are not in place at the Prison Hospital and, apart from the initial assessment on reception, risk management strategies need to be better developed. The views of Ms Muskett and the Correctional Justice Reform Alliance have been incorporated into a number of my recommendations. The Coroner has already drawn attention to the failure to implement the recommendations of past coronial inquiries in relation to the removal of suspension points and I endorse the need to continue to modify cells and to remove suspension points.

I have concluded that there are unnecessary delays in responding to medical emergencies, particularly at night in accessing cells, as the keys are kept at the main gate. Any delay in accessing a cell to commence resuscitation following a hanging is critical. It is essential to have the keys readily available at night, to be vigilant about checking cells and to have functioning alarm systems There was conflicting evidence as to delays in the emergency transfer of patients to the Royal Hobart Hospital and to the availability of ambulance escorts but there were clearly instances where these had occurred. It appears that not infrequently clinic appointments at the RHH are cancelled due to the unavailability of prisoner escorts.

I have concluded that better communication links with families and those able to provide information about a person's mental health history and detainees at risk are needed. Contact cards should be available in police cells, remand centres, at court and in the Legal Aid Commission so that those unfamiliar with the system know who to contact. A comprehensive computerised inmate patient data base should be established with email links to the Royal Hobart Hospital, or other appropriate facilities, and consents and authorisations should be obtained at reception to better access such information. I acknowledge the recent appointment of a Court liaison officer will assist in this regard.

I have concluded that hospital admissions for non medical purposes constitutes an inappropriate use of the Hospital. The 1999 Hospital Admission Statistics clearly indicate that there are inmates admitted to the Prison Hospital for non-medical reasons. Inmates requiring protection and inmates with personality disorders and challenging behaviours were frequently admitted because custodial officers in the main prison found their management difficult or failed to curb some of the intimidation which was a precursor to a prisoner needing protection. Admissions to the Hospital ought to be for inmates with medical conditions requiring hospital care and treatment and for the observation, assessment and management of inmates at risk or in crisis. The procedures agreed in 137 October 2000 should alleviate some of these concerns but the pressure for these admissions has in part arisen out of a failure to provide adequate training and support for custodial officers in the management of persons with a personality disorder, and the failure of prison management to provide a separate unit with specialist advice for the management of inmates with these disorders.

I have concluded that ‘N’ Division is a degrading and inhumane environment and, in my view, there is no custodial rationale for imposing a detention regime for prisoners accommodated there for their own protection or because they have personality disorders which gives rise to challenging behaviours. Solitary confinement for some 23 hours a day, sometimes for prolonged periods in a sensory deprived environment, is not conducive to effective management to those at risk or needing protection. It is not an effective suicide strategy. Solitary confinement in inhumane conditions has the potential to create environmental and other stressors which increase the risk of suicide and self harm. Likewise some aspects of hospital detention, including some 16 hours locked in cells in isolation each day, sometimes over a period of years of detention, is similarly unacceptable and inhumane. For forensic mental health patients it does not comply with the “least restrictive alternative” consistent with safety and security provided in the mental health and disability services legislation and is an abridgment of these persons human rights. The use of ‘N’ Division for the protection of inmates is likewise inappropriate. It imposes in effect a penalty that exceeds that which in law can be imposed on the perpetrator under a discipline regime. I have recommended a separate behavioural unit for the management of prisoners with severe personality disorders and challenging behaviours. This could be either a separate unit within the prison or within a separate and enclosed wing of the Hospital, but it needs a designated program, case management plans, trained staff, proper consultation and advice from FMHS, and to be under the management of psychologists or other appropriately skilled persons.

I have concluded that effective management of behavioural problems is not helped by the high ratio of prisoners to custodial officers in yards which can impede the officers negotiating better responses from individual prisoners, as does a lack of specialised training for correctional officers. Many prisoners have no work or meaningful activity to occupy them which ferments trouble and leads to agitation and unrest. The greater the number congregated in yards, the fewer the opportunities to establish the kind of custodial relationships conducive to the good order of the prison which includes identifying any person in custody who is under significant stress and requires assistance. More formal communication needs to be established between the yard representatives and management, and between yard representatives and the Official Visitors.443 A formal complaint procedure is needed which will ensure that authorities are vigilant and act to remedy legitimate deficiencies. Prisoners should be encouraged to manage special initiatives or projects, not discouraged.444

I have concluded that the changes to the FMHS that occurred in 1999 following the appointment of Dr Jager as Director had the effect of reducing the level of service to the Risdon Prison and the Prison Hospital and “special facility”. There is no evidence to indicate that the reduced level of service was compensated for by increased productivity or efficiency gains. In my view, these reductions in the context of an increased prison population acted to the detriment of forensic mental health patients and others requiring care and management and constituted a failure by both Departments to provide an adequate level of service for those in their care and under their control. My criticism is not of the shift to a community focus, but of the failure to maintain the level of service to the prison population.

I have concluded that there are grounds for believing that Dr Jager had sought to redefine the FMHS clientele and limit the FMHS role to those with a severe mental illness, to the exclusion of those with severe personality disorders. The Admission Statistics indicate that in fact this direction 138 was not followed in practice. It appears that after a number of deaths in custody Dr Jager sought to clarify that FMHS extended to encompass those ‘in crisis’. It is his view that inmates with severe personality disorders who are not ‘in crisis’ ought not be clients of the FMHS as they do not have a mental illness. The DHHS are critical of this limitation on clientele and it is accepted that any restriction or alteration of the FMHS target population was not authorised by the Department. However I suggest that more attention to what was occurring, and the dissension within the FMHS team, would have alerted the DHHS to this issue and would have better informed their decisions on matters which they either approved, such as the reduction in psychological services, or did not revoke, such as the relocation to the Glenorchy Health Centre. I accept that there is an ongoing debate, both at a national level and as part of this inquiry, as to who ultimately ought to be responsible for the care and management of those with severe personality disorders. While the precise demarcation as to who constitutes the forensic mental health target population may not be settled, I have accepted Dr Falconer’s view that, as general mental health services are not available to people in prison, the threshold of who is a FMHS client, and the services they receive, should be lower. The inclusion of those with severe personality disorders as part of FMHS clientele is in line with national trends.

I have concluded that additional resources need to be allocated, so that the level and type of service is appropriate to address the needs of this particular clientele. Dr O’Brien and Associate Professor Farrell have made recommendations for a team to review the service models. Their approach is to withdraw Corrective Services staff from the Hospital and, in the longer term, to have psychologists and social workers appointed by DJIR to manage behavioural problems exhibited by inmates. I agree with the general tenor of these proposals and I have also recommended that consideration be given to the United Kingdom Closer Settlement Centres as part of the review of service models. As previously stated, I have recommended that a separate Personality Disorders’ Unit be established, either in a separate wing of the Hospital or within the prison with advisory, consultative planning and other services provided by FMHS.

I have concluded that the planning of prison health services needs to be better coordinated both within and between agencies. Recommendations have been made for a comprehensive inmates data base, an Inmates Health Survey or other appropriate system on health care needs to better assist planning and resource allocation. But planning of health services within a prison setting needs to be facilitated by closer involvement with the key personnel in both Departments. The ‘prison health forum’ or similar entity should continue and senior management ought to inspect health care settings regularly and conduct audits or set performance targets as part of their over sighting and monitoring function. The concept of clinical governance should be introduced and quality assurance committees be established both for the purpose of establishing the requisite credential and privileges for health professionals but also to evaluate and review performance. Those entering into contracts with DHHS to provide health services or as health care providers should, as a condition of being engaged, be subject to this performance evaluation and review. Formal systems for professional support, mentoring and supervision should also be provided by DHHS.

I have concluded that the nursing staffing levels, at the time of my investigation, had fallen below a critical level. There were some 25 inmates ranging from the full gamut of psychiatric to medical complaints, with only one nurse for all inpatients. There was no nurse at the Hobart Remand Centre for 12 hours each night, and none at all at the Launceston Remand Centre. As well, there was only one nurse, located in the Prison Hospital, in charge of all prisoners and mental health detainees in Tasmania during that 12 hour overnight period. I concluded that the qualifications of nursing staff should be directed to either psychiatric nursing qualifications or general nursing qualifications supplemented by additional training and that the casual appointments should be replaced by permanent and the positions advertised. All positions needed to be reviewed. There 139 were workplace occupational health and safety issues and other concerns about the dispensing of medicine in dispensaries located in the prison. There was no system for drug audits, other than the Schedule 8 drugs, and inefficiencies in the method of supply. Medication management could be improved as could treatment care plans, and medical records documentation. There was a paucity of in-service training for nurses. There were concerns about nursing competencies in some instances. The intent of the roster system to have nurses on duty with complementary general and psychiatric qualification had in essence broken down as staff levels at the Hospital reduced and nurses were allocated to different areas. The induction of nurses was poor and the protocols, other than those recently revised, were either non existent, inadequate or not promulgated.

I have concluded that the normal prison environment was generally inappropriate for those with intellectual disabilities and special provision was required for their management: some three persons with intellectual disabilities are accommodated at the Prison Hospital. This raises issues of disability, basic human rights and what manner of detention or confinement is both appropriate, and is also the “least restrictive alternative”. Once sentenced, appropriate provision needs to be made for their management in the corrections system. One nurse had disability qualifications which may have suited this class of inmate.

I have concluded that a number of OH&S issues be addressed by both DHHS and DJIR as a matter of urgency. This should include a review of "F" Division dispensary, other aspects of the branch dispensaries and the Prison Hospital to ensure a safer system of work for nurses and special consideration to improve fire safety including emergency evacuation procedures from the Prison Hospital. Additional strategies need to be introduced to reduce workplace stress including regular, formal supervision, professional support and crisis intervention or debriefing when required.

I have concluded that improvements need to be made to the case management system and care planning for all inmates and patients. I believe that there needs to be an audit of the present system similar to the Victorian Auditor-General’s “Special Report No. 60 - Victorian Prison System” or an adequate information system put in place and have recommended accordingly.445

140 13. RECOMMENDATIONS

In making my recommendations I have adopted the recommendations of the consultants, Dr Ken O'Brien, Associate Professor Gerrard Farrell and Dr Tony Falconer. I have also had regard to the opinion provided by Mr Peter Tree in relation to the duty of care, to the principles embodied in the Correctional Justice Reform Alliance publication and to the recommendations made by Ms Coral Muskett. Ms Muskett’s recommendations were part of a report commissioned by DJIR in relation to Timothy Hayes’ suicide and used with her permission in this report. Likewise Dr Beadle and others have made recommendations which have been adopted.

The recommendations must be considered in the context of the full report and also in the context of the Coroner’s findings in the Deaths in Custody report. The Minister for Justice and Industrial Relations and the respective Departments have published a response to the recommendations of the Coroner. That response is annexed to this report and should also be considered as it covers many issues which are the subject of this inquiry.

My preliminary recommendation that the Risdon Prison Hospital and the management of the Prison Health Service be transferred from the Department of Justice and Industrial Relations to the Department of Health and Human Services has been accepted in principle by Government. However for this to prevent the systemic failures that have been identified in these prison health services, significant additional funding will need to be allocated particularly for health care staff within the Prison Hospital.

I recommend that:

In relation to those with diagnosed mental or psychiatric illnesses

1. A separate secure Forensic Psychiatric Unit (FPU) be established, independent of the correctional system and not co-located with a prison. That this facility be declared a “special facility” for the purposes of the Criminal Justice (Mental Impairment) Act and at that date the status of the Prison Hospital as a "special facility" under s.6(2) of the Criminal Justice (Mental Impairment) Act 1999 and the Mental Health (Special Institution) Order 1979 be revoked. [The Government has announced the building of a new Secure Mental Health Facility (SMHF). Planning is to begin immediately, with construction to commence late 2002 and completed mid 2003.] While I accept that planning for the SMHF could be part of the Prison Infrastructure Redevelopment, given the Government’s undertaking, I recommend that primary responsibility for the planning of the SMHF devolve to the Agency ultimately responsible for the health management of the facility.

2. That s.6(2) of the Criminal Justice (Mental Impairment) Act 1999 be amended to incorporate the same standards referred to in s.9(2)(a)(b) of the Mental Health Act 1996 and in the interim the Attorney General and Minister for Health and Human Services agree to work towards implementing these standards for the current “special facility” at Risdon Prison.

3. That provision be made for the accommodation of all categories of forensic mental health patients in the new SMHF, so that all psychiatric patients can receive treatment and a level of security related to their individual requirements rather than their legal status. Psychiatrically disordered offenders should be transferred to a secure psychiatric unit during the more acute and active phase of their illness, and returned to the correctional system once their condition has stabilised. Any period spent by a prisoner in a secure psychiatric unit should be counted as part 141 of the period of imprisonment for which that person was sentenced. [DHHS advise that it is proposed that the new SMHF will operate as stated in this recommendation.]

4. In the interim the management of persons currently detained under a restriction order be reviewed to enhance the therapeutic environment, make better provision for their treatment and care, and better ensure the maintenance of their civil rights to a degree consistent with safety, security and treatment requirement.

5. Forensic mental health patients be incorporated into the Outcomes Assessment Review System (OARS) database or an equivalent system. [DHHS support this recommendation and are in the process of implementing this].

6. Moves be made towards a model of multi-disciplinary management for forensic mental health patients and those at risk of suicide and self harm, in the least restrictive environment in which safety and security can be adequately ensured. A formal process be established for multidisciplinary case conferences and clinical reviews for inmates with diagnosed mental/psychiatric illnesses (to ensure that clients are reviewed regularly with input from a variety of people) and clearly articulated protocols for all psychiatric emergencies. [DHHS advise that this recommendation is supported. A multidisciplinary approach to assessment is the basis of the suicide / self harm risk management protocols. These protocols include custodial, nursing and FMHS staff in management of these patients. Multidisciplinary clinical reviews occur each morning in the daily hand over for the hospital patients. Staff from nursing, custodial and FMHS attend to discuss patient progress and management planning. Case conferences occur during FMHS weekly staff meetings. Staff, including the Assistant Clinical Director, has case discussions involving diagnosis, psycho-social problems and future management of both inpatient and outpatient clients.]

7. The Forensic Mental Health Service accept all referrals from the Visiting Medical Officer and the CNC Psychiatry for assessment. FMHS accept primary responsibility when treatment is required and for the supervision of long term stable mental health patients within the main prison. [DHHS advise that this recommendation is supported in principle. FMHS accepts referrals from all staff in the Prison Services, including the Remand Centre and Women’s Prison. The intake and assessment process has been reviewed and a new position of Intake and Assessment Officer has been created. This position is responsible for receiving and assessing all referrals in a timely manner and taking the assessments to the morning team meeting for discussion and allocation of a case manager for ongoing treatment. FMHS accepts primary responsibility for the supervision of long term stable mental health patients. It is everyone’s responsibility to monitor patients and report observed changes to the FMHS team.]

In relation to suicide, self harm and medical emergencies

8. A suitable number of “safe cells” with appropriate electronic and human monitoring be provided in the main prison complex. [DJIR support this recommendation. The provision of “safe cells” is a DJIR responsibility. This financial year some $350,000 has been allocated by Government for the upgrading of Division 8, including increasing the number of observation cells and creating a separate Unit on Westside upper. This 7 cell unit will increase flexibility in the system. This planned work will create additional “safe cells” within the prison complex. There are 3 cells currently monitored, (1 of which is “safe”) and this will be increased to 6.]

9. Modification of cell design in the Prison Hospital be completed to remove suspension points and reduce the opportunities for suicide and self harm. [DJIR support this recommendation and advise that work has taken place in the cells within the prison hospital and further work is 142 planned. Structural hanging points have been removed from all cells in the Prison Hospital and work is planned to remove any further hanging points on furniture. A concern of DHHS is that furniture also provides suspension points and this, as well as cell design, must be taken into account by DJIR]

10. Cardio-Pulmonary Resuscitation (CPR) training and annual competency assessment be provided for all hospital staff so that life-saving measures can be initiated without delay. Laedel pocket masks should be available to all staff. [DHHS advise that this is supported. CPR training took place a few months ago and will be an annual competency. Laedel masks will be placed at strategic points for ease of access.]

11. Consideration be given to resuming the past practice of having access to keys to cells in the hospital area overnight in case of emergencies. [DHHS advise that discussions have occurred with DJIR, who currently have responsibility for the management of the Hospital and whose Standing Orders govern security. To date a change in practice has not occurred in relation to the retention of cell keys in the hospital overnight. DJIR advise that this is supported, and arrangements for the implementation of this recommendation are currently being made. The revised arrangements will apply from June 2001.] Further consideration should be given to this issue in the context of the proposed transfer of the management of the Hospital from DJIR to DHHS.

12. The management of those at risk of self harm be reviewed, and the current practice of utilising "strip cells" as observation cells cease and be replaced by more humane protection measures and efforts be made to ensure a more therapeutic environment within the cells. [DHHS and DJIR support this recommendation. DHHS advise that the Suicide/Self Harm Management Procedures have been substantially reviewed and new procedures have been implemented. Training has been undertaken for FMH and Hospital staff and has commenced for custodial officers with priority given to those who work at the prison Hospital. “Suicide gowns” have been purchased so that patients are not stripped while in observation cells. A system of observation, while the patient is within the hospital environment, is being tried.]

13. Proactive strategies aimed at reducing the causes and motivation for self harm be developed. Such strategies to include a process whereby adequately trained staff identify and assume direct responsibility for prisoners considered at risk of suicide; prisoners be placed in a safe, supervised environment; and, a therapeutic approach be taken for their rehabilitation and protection, including interaction with families and significant others. [DHHS and DJIR support this recommendation. Discussions have occurred in relation to a special accommodation unit for inmates with behavioural problems such as self harm. Modifications to Division 8 is outlined in the remedial works document provided to DJIR and dated the 9th of April 2001. A Behaviour Management Group, which consists of staff from Custodial, FMHS and Prisoner Services, has been initiated to create programs for at risk inmates. A training program for staff was developed and commenced on 7 May. This is an initial two day program relating to mental health. Training in behavioural management programs will occur when the “special accommodation unit” is created.] [DJIR advise that inmates may be placed in an observation cell in Division 8 on a short term basis to monitor them at a level greater than the 30 minute cell checks done elsewhere. This category do not need medical supervision but an assessment is made to observe them in case of rapid decline, if rapid decline occurs they are then transferred to the Prison Hospital.]

14. A revision be undertaken of case management policy, procedures and practice applying to all prisoners, which incorporates the routine assessment of vulnerable prisoners at high-risk periods, such as sentencing, parole and family bereavements or crisis. [DHHS and DJIR accept this 143 recommendation and advise that a Prisoner Integrated Offender Case Management model is currently being introduced as part of the Prison Health and Related Services Renewal Project.] Given that this integrated case management model is being introduced, I therefore recommended that an audit along the lines of the Victorian Auditor-General’s “Special Report No. 60 - Victorian Prison System” be undertaken in a year’s time.

15. The revised case and risk management system be used in conjunction with standardised outcome measures such as the Health of the Nation Outcomes Study (HoNOS), Briefer Psychiatric Rating Scale (BPRS), to assist evaluation of care and detection of risks following the initial admission period.446 [DHHS and DJIR support this recommendation. DHHS advises that a Suicide / Self Harm Management risk protocol and assessment process has been developed on a model, currently in use in Western Australia, and is in operation. The use of standardised outcome assessment measures in general are to be developed in conjunction with the case management model which should be operational within a year.]

16. Crisis intervention and counselling skills be part of professional development for all nursing staff, the aim being to shift reliance from a purely custodial focus, and passive observation of inmates at risk, to a more therapeutic approach. Nursing staff without specialist psychiatric nursing qualifications should have incorporated in their professional development program, introductory information relating to the major psychiatric and personality disorders, contemporary approaches and management strategies, and the recognition and management of psychiatric emergencies (e.g. suicide, aggression, self-mutilation). Sufficient training and support should be provided for nursing and custodial staff and consideration given to the appointment of additional staff to facilitate these changes. [DHHS and DJIR support this recommendation. DHHS advise that a Professional Development Program is being developed to assist nursing staff in gaining skills and keeping abreast of contemporary nursing practice. A training program for custodial officers was developed and commenced on 7 May. This is an initial two day program relating to mental health. There have been practical problems in securing sufficient DJIR replacement staff to release custodial and nursing staff for training which should be overcome by the completion of a new recruit school in May 2001, and a further school in July 2001.]

17. For assessment and evaluation purposes, a comprehensive patient database be developed and a formal process for information sharing between the DJIR and DHHS be established to ensure critical information and continuity of care for shared clients is accessible, and that hospital staff have an accurate picture of past history, care and responses to treatment. [DHHS and DJIR support the recommendation. FMHS has developed comprehensive bio-psycho-social assessment tools to include information about previous self harm and suicide risk as well as alcohol and drug history. Discussions have been occurring with the data collection department of Mental Health Services about the development of a system to collect and provide information about inmates from one admission to another. An integrated assessment process is currently being developed by DJIR. This project includes revision (and expansion) of the assessment tools used and establishment of comprehensive inmate assessment and induction.]

18. A means of collecting information about the pre-history of those at risk, including information from family, partners and others be developed. [DHHS and DJIR support this recommendation. FMHS has advertised a Court Liaison Officer position to develop a system to assist with early identification of mental health problems. This position will be responsible for gathering information from significant others, Community Mental Health Services, Community Corrections, Legal Aid, Police, Remand Centre staff, other Medical Practitioners, and non government organisations. The Court Liaison Officer will then relay that information to Prison Health Services if the person receives a custodial sentence. Information about referral to this 144 Service will be available at the Police holding cells, the Remand Centre (Hobart and Launceston) and in the Courts. A further budgetary allocation has been made to enable this to become a state wide service. Risk assessment is also being reviewed as part of DJIR’s assessment project and will include referral to the FMHS where needed].

19. Protocols be developed to cover circumstances where a second opinion is requested by a prisoner and the circumstances in which authorisation is given to an inmate’s request that a second opinion or treatment be provided by another medical practitioner. [DHHS and DJIR support this recommendation. DHHS has advised that a patient can lodge a request for a second opinion with either the Team Leader of FMHS or the Director of Nursing. Information to this effect will be provided at induction. Protocols will be entered into between DJIR and DHHS to govern the appropriate circumstances in which authorisations for second opinions will be given.]

20. In the case of a death in custody or other adverse event, protocols be developed to notify partners or nominated “significant others” regardless of that person’s legal or marital status.447 Formal notification to the next of kin of a person’s death will still be undertaken by the Police. [DJIR and DHHS support this recommendation. DJIR is responsible for notifications in relation to inmates but utilises Tasmania Police for this purpose. The arrangement is currently being reviewed in the context of rewriting the Standing Orders.]

In relation to persons with severe personality disorders

21. An appropriate area in the prison be utilised as a behaviour intervention unit for the management of inmates with severe personality disorders. Security assistance to be provided by custodial officers selected on the basis of their capacity to manage persons with such disorders and such officers to receive additional training in these areas. In the event that the design for a new prison proceeds, regard should be had to the preferred infrastructure requirements of the United Kingdom Close Supervision Centre model. [DHHS and DJIR support the recommendation in principle. DHHS advise that this is a DJIR responsibility with input from Mental Health principally on a consultative basis. DJIR would need further information regarding the Close Supervision Model and state that the constraints of current facility need to acknowledged. DJIR indicate their willingness to address this issue in the Redevelopment. DJIR acknowledge that the management of inmates with severe personality disorders is a DJIR responsibility with input from Mental Health, and funding has been provided under the Budget Initiatives for additional staffing resources. Since January 2001, Division 8 has had a dedicated Unit Manager attached to it. That person is present in the Division 8am to 5pm Monday to Friday and is responsible for the monitoring of inmates housed there, as well as being part of the multi disciplinary Challenging Behaviours team mentioned above. This financial year some $350,000 has been allocated by Government for the upgrading of Division 8, including increasing the number of observation cells and creating a separate Unit on Westside upper, this 7 cell unit will increase flexibility in the system and suitability for management of people with disorders. Division 7 at Risdon may also be utilised for managing these inmates. Work is planned to improve the environment and clearly define its function.]

22. The FMHS provide assistance with the management of prisoners with severe personality disorders either through clinical assessment of individuals, training or providing assistance with the development of clinical protocols and guidelines. [DHHS and DJIR support this recommendation. DHHS advise that FMHS is assisting in relation to behavioural management programs. Staff provide clinical assessment and psychological treatment to persons with personality disorders.]

145 23. Corrective Services directly appoint an appropriate number of psychologists and social workers to assess and manage behavioural problems exhibited by inmates. The FMHS team to provide a consultation service to these workers. [DHHS and DJIR support this recommendation and note that funding has been provided in the State Budget for the purpose.]

In relation to Hospital admissions, care and protection issues

24. Prison Hospital admissions be determined by health professionals and the Hospital be reserved for those requiring medical care, treatment and health care services. [DHHS and DJIR support this recommendation. DHHS advise that the Hospital Renewal Project will address the development of admission criteria based on health needs. The issue of the legal status of a prison hospital, which falls within the administrative responsibility of DJIR and operates within a DJIR correctional setting but is managed by DHHS, is being addressed through the Hospital Transfer Project.]

25. As an interim measure, the Prison Hospital beds be specifically designated as far as possible as Acute Medical Beds, Suicide Observation cells, Long Term Placement cells for prisoners with mental disorder and inpatients of the FMHS. Beds so designated are to be the responsibility of relevant professional staff. Any remaining cells are to be redesigned and renovated for therapeutic and recreational activities or programs. [DHHS do not support this recommendation on the grounds that Beds should be used on the basis of clinical need – they cannot be designated. Further the Hospital bed numbers have increased since the Ombudsman investigation concluded, and the average occupancy of the 28 bed Hospital has been 32 for the past 6 months. Given the pressure on beds in the Hospital, it is not possible to have inflexible designation of beds. DJIR also do not support this recommendation.] I accept that there needs to be an inherent flexibility in bed allocation however the principle is that, as far as practicable, there be a separation of clientele according to treatment and health care requirements. [DJIR is examining whether provision can be made in another area of the prison for programs to be conducted by Prisoner Services.] In the event that a suitable area of the prison can be established for programs conducted by Prisoner Services, then I accept that these need not be physically located at the Prison Hospital however a suitable area needs to be located within the Hospital for therapeutic and recreational activities.

26. A suitable prison infirmary within the Risdon Prison complex, staffed by appropriately trained and health-based staff to provide outpatient medical services to the prison population and a small number of infirmary beds for medical care . The more serious problems would be sent to a tertiary medical facility with appropriate security arrangements being provided by Corrections. The infirmary needs to be regard as an element in the development of a healthy prison community and prevention and population health approaches. [DHHS and DJIR support this recommendation. The Prison redevelopment has made provision for a Primary Health Service with a 10 bed inpatient infirmary. DHHS is developing strategies to strengthen a population health and primary health care service within the prison.]

27. All prisoners in ‘N’ Division be contacted daily by nursing staff and reviewed weekly by either senior health clinicians, or the Visiting Medical Officer to assess potential harm resulting from prolonged detention. The Operations Chief is to maintain and personally sign a weekly record of who is in ‘N’ Division, the reason for that persons detention, and an acknowledgment that the continued detention in solitary confinement is warranted. The Operations Chief is to record any incident or bring to the attention of the hospital staff any matter which may indicate that the prisoner may be at risk from continued detention. [DJIR and DHHS support the recommendation in principle. DHHS advise that they will review how best review and assessment function could occur, including the possibility that a referral function for review 146 purpose might be undertaken by the Official Visitor. DHHS state that nurses currently undertake medication rounds 4 times per day and monitor the health of inmates receiving medication and inmates housed in ‘N’ Division are monitored for psychological wellbeing by the staff of FMHS on a regular basis. A counselling room has been provided within the Division to allow confidential contact with inmates. Training of Custodial Officers in suicide awareness is being conducted by FMHS]

28. The Quality Improvement Council Health and Community Services Core, Primary Health Care Modules and Mental Health Standards be utilised by the Prison Health Service to implement best practice in service delivery and the Prison Health Service aim for accreditation within an appropriate time frame. [DHHS and DJIR support this recommendation in principle. DHHS advise that these modules and standards are being used to develop best practice service delivery. With the completion of new SMHF and other facilities, accreditation will be a priority. Specific Mental Health Service Correctional Standards may be developed, and if so, should be used.]

29. Consideration be given in the future to withdrawing Correctional Services security staff from the hospital premises and SMHF. Internal security would then be a function of the nursing staff with a commensurate increase in nursing numbers. [DHHS consider that there are genuine security issues regarding both the Hospital and outpatient services within the Prison which would require security services of some sort in order that health practitioners can provide health services in a safe and secure environment. It is envisaged that when the SMHF is operating, security staff will have a role in providing entrance and perimeter security but will not have a role within the SMHF.] That approach is accepted.

30. There be a substantial increase in the number of out of cell hours spent by inpatients at the Prison Hospital and a greater focus on rehabilitation. [DHHS and DJIR supported this recommendation in principle. Nursing staff numbers have been increased and a recruitment drive has commenced. When nursing staff numbers allow, lock down time is to be minimised. Occupational Therapy services are available through FMHS. This is a nursing and custodial resource issue which is currently the subject of negotiations between DHHS and DJIR.] It is recognised that this recommendation cannot be given effect to unless additional resources are allocated.

31. Individual nursing care plans be adopted and included as part of the medical records kept for those in care in line with the professional regulatory requirements of the Nursing Board of Tasmania. A resource folder containing nursing management and sample care plans for more prevalent mental illnesses (to guide non-psychiatric trained nursing staff) to be developed. The DON to ensure that these are utilised in practice. Discharge summaries to be prepared for all planned releases from Risdon Prison. [DHHS and DJIR supported this recommendation in principle. Nursing resources need to be increased to achieve this and this issue is currently the subject of negotiations between DHHS and DJIR. The Renewal Project will address nursing care plans and discharge summaries.] It is recognised that additional resources will need to be allocated to meet these competencies.

32. Appropriate programs and activities be provided for those detained in the “special facility” or hospital inmates. Diversional skills/therapeutic group training will be required for staff so that they can actively engage long-term inmates with psychiatric disorders, mental illnesses or medical conditions. Other strategies to reduce social isolation and to enhance re-integration into the community are to be further developed, restricted only by sentencing, security and safety requirements. This may involve facilitating community and family contacts. [DHHS and DJIR supported this recommendation in principle. FMHS has provided an Occupational Therapist 147 for two days per week and other diversional activities are being provided to patients of the Hospital.] To give proper effect to this recommendation additional resources will be required from DHHS and in addition from DJIR in the programs, rehabilitation and social work area.

33. Ongoing and increased funding to be provided for sex offenders and drug and alcohol programs. Such programs to commence at the outset of the sentence rather than concentrated at the end of the sentence. Programs to be designed according to individual needs and include family or other persons if appropriate. In circumstances where there is a dual diagnosis, treatment should be given as and when required for whatever aspect of the disorder which presents and be part of proper case management. For service planning purposes research, both in the general community and the prison. should be conducted into the links between Mental health and substance abuse. [DHHS and DJIR supported this recommendation in principle. DHHS advise that the issue of co-morbidity is recognised and research into the links between mental health and substance abuse is required. The Renewal Project will address both sex offender and drug and alcohol programs. DHHS state that additional resources are not currently available to expand these programs to the level necessary but it is acknowledged that these are required. DHHS acknowledge that alcohol and drug problems are a major issue for prison health services. DHHS advise that following the first workshop conducted by Dr David Chaplow448 it was agreed by DHHS and DJIR that DJIR should have the primary funding responsibility for the Sex Offender programs. DJIR advise that Corrective Services have been working closely with the Alcohol and Drug Service and Your Place to determine a comprehensive range of alcohol and drug programs to be delivered. These programs are being finalised and some have commenced.]

34. Additional social work positions be funded to be located within Corrective Services and provided to all persons in custody irrespective of their legal status. [DHHS and DJIR support this recommendation. The capacity of DJIR to appoint psychologists and social workers has been addressed as part of the State Budget process.]

35. The special needs of particular minority groups be identified and recognised and treated with respect. Properly funded educational programs which have community recognised accreditation and social and peer support programs should be included. [DHHS and DJIR support this recommendation. DHHS advise that the Prison Health Services Renewal Project will address these issues from the health perspective.]

In relation to planning prison health care services

36. An Inmates Health Survey be commissioned as a planning tool for the improved planning and delivery of health services, and to guide resource allocation and management. The Survey should be integrated with an ongoing and comprehensive database. [DHHS and DJIR support this recommendation in principle. DHHS state that it needs to be determined as to how best to conduct it or whether a properly functioning system of assessment on arrival with data being collected and analysed would assist with this problem and in fact provide such a survey on an ongoing basis. The fact that most inmates are in the prison for less than six months is cause for consideration. DJIR advise that this is being addressed through DJIR’s assessment project and will be supported by improved information systems.]

37. The ‘Prison Health Forum’ or some other appropriate process should continue to facilitate the planning, coordination, delivery and monitoring of health services and should operate in a manner so that senior management in DHHS and DJIR inform and consult in a meaningful way with those receiving, providing and administering health services and their representatives. [DHHS and DJIR advise that this recommendation is supported and that a range of 148 interdepartmental management committee are now in place. These include an interdepartmental management committee on health services in a correctional setting, a senior management steering committee and a operational management committee for prison health services.]

38. Protocols and Standing Orders be developed to facilitate more timely and flexible delivery of health services. This includes the facilitation of existing services. For example, the Director of the Prison is to ensure that work managers release inmates to attend induction sessions and medical appointments (including hepatitis blood tests and vaccinations), and ensure that escorts are available for prisoners attending external medical clinics. The current situation where external medical appointments are cancelled due to unavailability of escorts needs to be reviewed and urgently addressed. [DJIR and DHHS advise that this recommendation is supported in principle. DHHS advise that a shortage of custodial staff results in appointments being cancelled, as there is insufficient staff to accompany inmates. DJIR is aware of this problem and are working to address recruitment issues for escorts.]

39. The DON ensure that the HIV and hepatitis blood test results are processed promptly by the Prison Hospital staff. [DJIR and DHHS advise that this recommendation is supported in principle. The DJIR assessment project is reviewing the induction process for inmates. A system has been put in place to ensure HIV and hepatitis blood test results are processed more promptly, and this is now working well.]

40. Surgical procedures that are appropriate to perform in General Practice should be performed at the Prison Hospital, rather than at the Royal Hobart Hospital and, if required, the VMO hours are to be extended by DHHS to accommodate this. [DHHS and DJIR advise that this recommendation is supported. The VMO hours have been extended. Nurse clinics could be introduced to deal with minor but common health concerns to take the pressure off the VMO.] The nurse clinics concept is supported.

41. Consideration be given to medical services at Hayes Prison Farm being purchased from local private practitioners. [DHHS advise that the Department is willing to review the feasibility of this recommendation.]

42. Staff development programs be developed, including professional development plans for each individual staff member, to enhance and maintain existing skills and competencies. These plans should be developed by the DON in consultation with the Forensic Mental Health Services, Prison Management Services, and the nursing staff. [DHHS and DJIR advise that this recommendation is supported. The A/DON and A/CNC are developing staff development programs and individual staff needs.]

In relation to the nursing staff

43. Nursing staff at Risdon Prison Hospital and the management of the Prison Health service be organisationally reallocated to the Department of Health and Human Services. [DHHS and DJIR advise that this recommendation is supported. The Attorney General has announced the transfer of the Prison Health Services to DHHS effective 1 July, 2001.]

44. The number of Level 2 nurses proportional to the number of Level 1 nurses, be retained and reviewed only if the Prison Hospital ceases to be a “special facility”. Positions currently filled by nurses employed on a casual basis should be advertised for permanent employment. [DHHS and DJIR advise that the nursing structure is being reviewed, by a group of senior nurses including the DON Mental Health and the Acting DON of the Hospital, to determine appropriate 149 structures and classification levels, as part of the transfer process. Permanent nursing positions have been advertised and casual staff have been encouraged to apply.] This response is appropriate.

45. A separate review be undertaken of the positions of DON, CNC Medical and CNC Psychiatry to provide clarification of role and job components. This is to enable clear role relationships and responsibilities to be established within the nursing team, especially at senior level. [DHHS and DJIR advise that this recommendation is supported in principle. These positions are in the process of being reviewed as part of the development of the organisational structure within DHHS.] This response is appropriate.

46. Following this review, a formal review be undertaken of nursing staff numbers including the interim positions identified above and including the lack of a nurse at the HRC for the 12-hour night shift and the absence of a nurse at the LRC. [DHHS advise that this recommendation is supported and this review is currently underway.]

47. An additional Level 2 Nurse be appointed on an interim basis to facilitate professional training for nursing staff at Risdon. [DHHS advise that as part of the transfer and review of nursing positions a professional development program will be developed as indicated above and the nursing resources needed to achieve this will be addressed in the general review of staffing.] That approach is accepted.

48. An additional clerical staff member be employed on an interim basis to minimise the amount of non nursing duties currently performed by nursing staff as well as assisting with the development of protocols and standing orders. [DHHS and DJIR advise that this recommendation is supported in principle. Clerical and administrative staff positions are being reviewed as part of the transfer process.]

49. The present skills and expertise of forensic mental health nurses be maintained and enhanced by encouraging them to obtain further education and training in forensic mental health nursing. In addition, site visits, staff exchanges, hosting joint seminars/conferences, and so forth, should be explored with interstate forensic based colleagues to help overcome geographical and professional isolation. Ready access to the Internet, Email and Telehealth should be promoted and supported. [DHHS and DJIR advise that this recommendation is supported in principle and will be addressed through the professional development program, including a learning needs analysis, which is currently being developed and implemented. Logistically it is currently difficult to send staff for site visits but telehealth is available through FMHS which has developed professional links with Forensicare in Victoria. Again the implementation of this recommendation depends on the recruitment program currently underway].

50. Nursing staff to make use of clinical supervision to maintain best practice standards and provide clinical support for colleagues managing difficult patients. [DHHS advise that this recommendation is supported. The Renewal Project will address this issue.]

51. There be an improved and formalised orientation process to ensure new staff are aware of roles, responsibilities and work site policies and procedures, and to promote staff consistency and compliance with critical processes (e.g. documentation, management of critical incidents, Australian Nursing Council competencies), and that this be the responsibility of the DON in consultation with the VMO, Director FMHS and the Nursing Board. [DHHS and DJIR advise that this recommendation is supported. An induction/orientation manual has been developed for nursing staff and a preceptor program will be developed. FMHS has also developed an orientation manual. It is intended to integrate both manuals.] 150 52. Consideration be given to the return of an 8-hour nursing shift system and, while this is being negotiated/implemented, a limited number of short term shifts, such as 7.00pm to 11.00pm, be introduced thereby allowing suitable and stable patients to participate in occupational/ recreational activities for more extended periods. [DHHS advise that this recommendation is supported. A review of shifts in consultation with the unions is being undertaken as part of the transfer process, and consideration is being given to the most appropriate mix of shifts (including retention of some 12 hour shifts). DJIR supports this recommendation in principle.]

53. Nurses not be rostered on duty on a more frequent or continuous basis than indicated for medical officers in the AMA National Code of Practice and that shifts be shared equitably in accordance with staff preferences. Further that a computerized schedule replace the current manual roster. [DHHS advise that this recommendation is supported in principle. The advertised nursing positions will assist in reducing the number of continuous shifts worked by nurses. The roster has been reviewed and computerised. Client need should outweigh staff preferences.]

54. As part of quality assurance in medication management, there should be audits to ensure the competency of medication management by registered nurses and this audit should extend to the hospital management of medications. Further, the system of ordering and supply of medications to be reviewed and a full-time ward clerk or Hospital clerk, be employed to undertake drug reconciliation and audit tasks. As provided for by the Nursing Board Guidelines, a custodial officer or some other responsible person only be requested to countersign the Dangerous Drugs Register if a second registered nurse is not available. [DHHS advise that this recommendation is supported in principle. The Renewal Project will address the medication issues through contracting a Consultant Pharmacist to review the provision of medications including ordering, supply and auditing, within the prison complex.]

55. A Registered Pharmacist visit Risdon Prison at least twice a year to advise staff and report on issues such as storage of medication, stock levels, dispensing practice, adverse medication incidents and potential adverse drug interactions. [DHHS advise that this recommendation is supported in principle.]

56. If a particular medication such as Clozapine is prescribed to a patient registered under the “Clozapine Patient Monitoring System Protocol”, all nursing staff must have relevant training. Each nurse and the DON is to be vigilant in ensuring that the patient is properly monitored, and that nursing observations and records are accurately maintained. [DHHS advise that this recommendation is supported. Training in regard to “Clozapine Patient Monitoring System Protocol” has occurred and ongoing training will take place. Links with RHH have been enhanced. Accurate records for monitoring of patients prescribed Clozapine will be addressed in the Renewal Project.]

57. A Medication Management Policy be developed including a procedure to be followed in the event of suspected medication diversion/abuse and ensure that additional training and instruction is provided for all prescribed medication when this is required. Audits should be undertaken to ensure the competency of medication management by registered nurses. [DHHS advise that this recommendation is supported in principle. This will be addressed with the pharmacy review and the Renewal Project.]

58. Human Resources division of the relevant agency provide appropriate assistance and advice to the DON and Clinical Nurse Consultants in relation to the supervision of nursing staff, grievance procedures, setting performance standards, managing under performance and performance assessment, disciplinary matters and the procedures by which employees are warned, notified 151 and counselled. [DHHS advise that this recommendation is supported. DHHS Human Resources will provide this assistance and advice.]

59. That OH&S issues be addressed by both DHHS and DJIR as a matter of urgency. This should include a review of "F" Division dispensary, other aspects of the branch dispensaries and the Prison Hospital to ensure a safer system of work for nurses and special consideration to improve fire safety including emergency evacuation procedures from the Prison Hospital. Strategies need to be introduced to reduce workplace stress including regular, formal supervision, professional support and crisis intervention or debriefing when required. [DHHS advise that this recommendation is supported in principle. The dispensary in F Division will be considered in the pharmacy review and Occupational Health & Safety issues, including fire safety, will be addressed in the Renewal Project.]

In relation to the Forensic Mental Health Service to the Risdon Prison

60. A system of clinical governance to be established in the Mental Health Service to provide clinical supervision and support to all professionals. [DHHS support this recommendation in principle. Currently the Director of Psychiatric Services at the RHH Professor Saxby Pridmore oversights clinical service delivery within the FMHS team with respect to clinical work conducted at the Prison Hospital and has taken on the role of Acting Clinical Director.]

61. The position of a Manager within the FMHS team be continued at least until such time as greater cohesion and stability occurs within the team. [DHHS advise that this recommendation is supported. A permanent position of Team Leader has been established.]

62. That the scope and delivery of FMHS be reviewed within the prison and the community. [DHHS advise that this recommendation is supported. Two workshops were held with DHHS and DJIR in 2000 by Dr David Chaplow.]

FMHS be reviewed to determine whether the FMHS requires a psychiatric registrar/senior registrar. [DHHS advise that this recommendation needs to be further considered. DHHS has increased the number of forensic mental health professionals and hours allocated in the prison but has been unable to fill the advertised registrar position].

In relation to medical records

63. Agreement be reached, bearing in mind the limitations of patient confidentiality, as to what constitutes a formal health record and how such records should be assembled, maintained and stored. If necessary, the assistance of a health record consultant be obtained. Consideration be given to the transfer of responsibility and ownership of prison medical records to the DHHS and whether the psychiatric and general Prison Hospital file should be amalgamated to ensure salient information is available to all.449 If this is not feasible, agreed protocols be developed in relation to confidentiality, format and disposal policy. [DHHS and DJIR advise that this recommendation is supported. A single Prison Health Record has been designed and ordered. Consultation with an information management specialist has guided design, storage and maintenance of the record system. Consideration is being given to the employment of a file clerk to assemble and join information from the various files currently used.]

64. To maximise communication of information to assist in the management of prisoners with health problems, FMHS staff either make clinical notation in the prison medical record or maintain a summary of mental health problems in the prison medical record. In the interim, separate files should be stored together for ease of access but separate clinical records continue to be

152 maintained for inpatients of the FMHS until the issue of an amalgamated record has been examined. Further, a discharge summary is to be filed in the prison medical record at the time of discharge from inpatient status. [DHHS and DJIR advise that this recommendation is supported. Records have been combined. FMHS currently record notation within all files available for any patient. A discharge summary form has been designed and is in place for referral from FMHS Prison Hospital to the Community Forensic Mental Health Service.]

Other matters to be considered

65. Measures be taken to recommend overturning of the current legislative requirement to compulsorily test all prisoners for HIV. [The DHHS response is that the public health implications of ceasing compulsory HIV testing needs to be considered and discussed with the Public Health Branch of DHHS. The medico-legal implications also need to be considered.]

13.1 TIME FRAME FOR RECOMMENDATIONS

I would expect to see clear evidence of genuine attempts to address all of the recommendations within 6-9 months and within 12 months there should be clear and convincing evidence that substantial progress has been made towards achieving the longer term recommendations. I acknowledge that both Departments have made considerable progress to develop and implement the substantive recommendations which were provided earlier in draft form.

153 14. ABBREVIATIONS

Australian Institute of Criminology AIC Australian Nursing Council Incorporated ANCI Australian Nursing Federation ANF Clinical Nurse Consultants CNC Community Psychiatric Nurse CPN Department of Health and Human Services DHHS Department of Justice and Industrial Relations DJIR Director of Nursing DON Evaluation and Quality Improvement Program Guide EQuIP Forensic Mental Health Services FMHS Forensic Psychiatric Unit FPU Hobart Remand Centre HRC International Covenant on Civil and Political Rights ICCPR Launceston Remand Centre LRC Legislative Council Select Committee Legislative Council Occupational Health and Safety OH&S Personality Disorder Unit PDU Risdon Prison Hospital RPH Royal Commission into Aboriginal Deaths in Custody RCIADIC Royal Derwent Hospital RDH Royal Hobart Hospital RHH United Nations UN Visiting Medical Officer VMO

154 15. REFERENCES

AHMAC National Mental Health Working Group 1999, Towards a National Approach to Forensic Mental Health, ed. S. Briggs, Victorian Institute of Forensic Mental Health, Melbourne. Australian Institute of Criminology 1990, Keeping People Out of Prison: Proceedings of a Conference, 27-29 March 1990, ed. S. McKillop, Australian Institute of Criminology, Canberra. Australian Institute of Criminology 1993, Serious Violent Offenders: Sentencing, Psychiatry and Law Reform: Proceedings of a Conference, 29-31 October 1991, eds. S. Gerull & W. Lucas, Australian Institute of Criminology, Canberra. Beattie J W Port Arthur The British Penal Settlement in Tasmania. From a compilation of sources by J W Beattie An Historical Survey Van Dieman’s Land. Printed at the “Mercury Office” Hobart 1905. Biles, D. 1988, ‘Draft guidelines for the prevention of aboriginal deaths in custody’, Royal Commission Into Aboriginal Deaths in Custody Research Paper, no. 2. Biles, D. & Dalton, V. 1999, ‘Deaths in private prisons 1990-99: a comparative study’, Trends and Issues in Crime and Criminal Justice, no. 120. Biles, D. 1988, ‘Preliminary analysis of current database’, Royal Commission Into Aboriginal Deaths in Custody 1988 Research Paper, no. 1. Conference of Correctional Administrators 1989, Standard Guidelines for Corrections in Australia, Conference of Correctional Administrators, Melbourne. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, United Nations, Geneva. Dooley, E. 1990, ‘Unnatural deaths in prison’, British Journal of Criminology, vol. 30, no. 2, pp. 229-234. Fitzgerald, R.E. 1988, ‘Mentally disordered offenders - who is responsible?’, in Current Australian Trends in Corrections, ed. D. Biles, Federation Press, Sydney, pp. 167-176. Forensic Mental Health Services : Role and Scope of the Service: Interim Policy Paper (Draft) September 1998, Department of Health and Human Services, Hobart. Harding, R.W. 1997, Private Prisons and Public Accountability, Open University Press, Buckingham. Harding, R.W. 1992, ‘Private prisons in Australia’, Trends and Issues in Crime and Criminal Justice, no. 36. Harding, R.W. 1994, ‘What can we learn from suicide and self injury’, in Deaths in Custody : International Perspectives, ed. A. Liebling and T. Ward, Whiting & Birch, London, pp. 204-215. Hassan, R. 1996, ‘Social factors in suicide in Australia’, Trends and Issues in Crime and Criminal Justice, no. 52. Howells, K., Hall, G. & Day, A. 1999, ‘The management of suicide and self-harm in prisons: recommendations for good practice’, Australian Psychologist, vol. 34, no. 3, pp. 157-165. Interdepartmental Review of Forensic and Secure Psychiatric Services (Tasmania) 1995, Forensic and Secure Psychiatric Services Review: Report to the Ministers for Justice and Community and Health Services, Department of Health and Human Services, Hobart.

155 Interdepartmental Review of Forensic and Secure Psychiatric Services, (Tasmania) 1997, Forensic and Secure Psychiatric Services Review 1995 Summary and Update, Department of Health and Human Services, Hobart. International Covenant on Civil and Political Rights 1966 (ICCPR), United Nations, Geneva. Law Reform Commission of Western Australia 1991, Report on the Criminal Process and Persons Suffering from Mental Disorder, Project no. 69, Law Reform Commission, Perth. Liebling, A. 1992, Suicides in Prison, Routledge, London. Liebling, A. 1995, ‘Vulnerability and prison suicide’, British Journal of Criminology, vol. 35, no. 2, pp. 173-187. McArthur, M., Camilleri, P., & Webb, H. 1999, ‘Strategies for managing suicide and self-harm in prisons’, Trends and Issues in Crime and Criminal Justice, no. 125. McDonald, D. 1988, ‘National police custody survey August’, Royal Commission Into Aboriginal Deaths in Custody Research Paper, no. 8. Mental Health Working Party 1990, National Mental Health Strategy Statement: Policy Goals and Action Proposals: Report, Canberra, AHMAC. Ministerial Advisory Committee on the Leave of Absence Programme for Prisoners 1989, Report to the Minister for Corrections of the Ministerial Advisory Committee on the Leave of Absence Programme for Prisoners in Victoria, Office of Corrections, Melbourne. Muskett, C. (unpub) 1995, Internal review and report into the death of Timothy Hayes, Department of Justice and Industrial Relations, Hobart. National Inquiry Concerning the Human Rights of People with Mental Illness (Australia) 1993, ‘Forensic mental health patients and prisoners’, in Human Rights and Mental Illness, vol 2, (B. Burdekin, Commissioner), AGPS, Canberra, pp. 752-817. Neasey, F.M. 1993, Report of an Inquiry Into the System of Classification of Prisoners in Tasmania and Other Related Matters, Govt. Printer, Hobart. O’Brien, K.P. 1988, ‘Prison health issues’, in Current Australian Trends in Corrections, ed. D. Biles, Federation Press , Sydney, pp. 148-155. Office of Corrections 1988, Review of the Leave of Absence Programme for Prisoners, Conducted by the Office of Corrections, Victoria, report of the Hon. B. L. Murray, Office of Corrections, Melbourne. Office of the Ombudsman (NSW) 1996, Inquiry into Juvenile Detention Centres, vol. 2, NSW Ombudsman, Sydney. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care 1991, United Nations, Geneva. Royal Commission into Aboriginal Deaths in Custody 1991, National Report Vol. 1: Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and Northern Territory, (E. Johnston, Commissioner), AGPS, Canberra. Royal Commission into Aboriginal Deaths in Custody 1991, Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, vol 1. ( D. J. O’Dea, Commissioner), AGPS, Canberra. Steering Committee for the Review of Commonwealth/State Service Provision 1999. Report on Government Service Provision 1999, Ausinfo, Canberra.

156 Tasmania, Legislative Council Select Committee 1999, Correctional Services and Sentencing in Tasmania, (D. Wing, Chair), Legislative Council Select Committee, Hobart. Trajos, S., Burton, A. and Bliss, D. (unpub) 1999, Internal report into the incident at the Risdon Prison Complex on 26th May 1999, Department of Justice and Industrial Relations, Hobart. United Nations 1984, Standard Minimum Rules for the Treatment of Prisoners and Procedures for the Implementation of the Rules, U.N. Dept. of Public Information, New York. Victorian Auditor-General’s “Special Report No. 60 - Victorian Prison System” Victorian Correctional Services Task Force Review of Suicides and Self Harm in Victorian Prison November 1998.

15.1 LEGISLATION

Corrections Act 1997 (Tas.) Criminal Justice (Mental Impairment) Act 1999 (Tas.) Mental Health Act 1963 (Tas.) Mental Health Act 1996 (Tas.) Nursing Act 1995 (Tas.) Poisons Regulations 1975 (Tas.) Prison Act 1977 (Tas.) Sentencing Act 1997 (Tas.)

157 16. ENDNOTES

INTRODUCTION

1 The deaths occurred between the 31st August 1998 and the 10th January 2000. Timothy HAYES (31st August 1998) was a person undergoing a custodial sentence, but was a person with a history of mental illness. Christopher DOUGLAS (4th August 1999) was on remand awaiting trial on a homicide charge. Thomas HOLMES (17th September 1999)was also on remand pending the hearing of charges, but was a person suffering a mental illness. Jack NEWMAN (formerly Rory Jack Thompson) (18th September 1999) and Laurence SANTOS, (18th/19th October 1999) had been detained under the Mental Health Act 1963 having been found not guilty of homicide on the grounds of insanity. Fabian LONG (10th January 2000) was serving a custodial sentence. 2 The Visiting Medical Officer is employed by the DHHS and in the organisational structure, reports to the District Manager, SE Region, while for professional purposes reports to the Senior Medical Officer at the Clarence Community Health Centre. 3 The Coroner S Tennent reported on 26th March 2001. Magistrates Court Tasmania. “Findings. Deaths in Custody Inquest”. 4 The Coroner reported on the 26th March 2001. The Attorney General, the DJIR and DHHS responded to the Deaths in Custody Inquest on 27th March 2001. 5 A "reportable death" includes a death that appears to have been unexpected, unnatural or violent or to have resulted directly or indirectly from an accident or injury.

THE INVESTIGATION

6 A list of those who made written submissions and a list of those interviewed appears in the report of the prison. 7 Risdon Prison Inquiry. FMHS Report. February 2000. Dr Ken O’Brien, Director Forensic Health Services South Australia & Associate Professor Gerry Farrell, Head School of Nursing, University of Tasmania. 8 Review of Primary Health Care Services Dr Tony Falconer, Consultant Health and Medical Services, Department of Corrective Services, Queensland. January 2000. 9 Ombudsman Prison Enquiry. Hospital Admission Statistics 18 January 2000. Concept Ms Robyn Hopcroft; Technical design Ms Bridget Hiller; Data entry, Ms Coral Musket. 10 The Mental Health Act 1963 was repealed and replaced by the Mental Health Act 1996 but the Risdon Prison Hospital remains a “special facility” for persons detained under a restriction order. 11 Coroner S Tennent Magistrate Court Tasmanian 26th March 2001 12 This includes the June 1995 "Forensic and Secure Psychiatric Services Review” report to the Ministers of Justice and Health, the November 1997 "Summary and Update” and the draft "Forensic Health Services Interim Policy Paper: Role and Scope of the Service.” The Commonwealth document "Towards a National Approach to Forensic Mental Health” was invaluable to me in assessing the standards of practice in this State in comparison to other jurisdictions. 13 Tabled in Parliament on 15th December 2000 14 Legislative Council Select Committee Report "Correctional Services and Sentencing in Tasmania" (1999) 15 Legislative Council Select Committee Report "Correctional Services and Sentencing in Tasmania"(p.93). The Legislative Council Select Committee (Legislative Council) Report dealt comprehensively with the issue of the suitability and adequacy of the present facilities, and concluded that the Risdon Prison complex was inadequate suggesting that "The flow-on effects are no doubt a contributing cause of the unrest and riots in Risdon Prison since mid-1998" 16 Hon F M Neasey "Report of an Inquiry into the System of Classification of Prisoners in Tasmania and other related matters". (p. 9) He said "Risdon Prison, in accordance with Tasmanian prison philosophy of the day, was not designed to accommodate prisoners of varying security classification. The whole prison was designed for maximum security accommodation which was then and has remained much in excess of real need". 17 DCM p93 18 Professor Richard W Harding "Private Prisons and Public Accountability" 1997 University of Western Australia (p88, 8) Radzinowicz. 19 It is suggested that prison industries should be used to achieved a more educative and rehabilitative function amongst a larger proportion of the inmate population and that the profitability of the prison industries should be regarded as important, but just one aspect of meeting performance criteria. 158

THE LEGISLATIVE FRAMEWORK AND THE DUTY OF CARE

20 Rule 57, on which Guideline 1.2 is based, provides that: "Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to the justification of segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation". Guideline 5.33, which reflects Rule 31, provides that: "Prolonged solitary confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading punishments must not be used". 21 The Report of the National Inquiry into the Human Rights of People with Mental Illness (the Burdekin Report p795) 22 AMA Policy Resolutions and Position Statements - Health Care of Prisoners and Detainees - 1998. (May 2000. Page 219). 23 A "detainee", as defined by the Corrections Act 1997 means a person, other than a prisoner, who is subject to an order of a court by which he or she is remanded or otherwise committed to prison; whereas a "prisoner" means a person who is subject to an order of a court by which he or she is sentenced to a term of imprisonment. A person under a “restriction order” is a person who the court decides is unfit to plead, or who is found not guilty of a crime by reason of insanity, and who is accommodated in a “special facility”. 24 A place approved as a hospital or an institution for the purposes of the Prisons Act 1977 is taken to be approved as a hospital or an institution for the purposes of the Corrections Act 1997. 25 The court may release the person unconditionally, or otherwise make a supervision order, a community treatment order or a continuing care order. 26 The person can apply to the Supreme Court for a discharge of the restriction order but not unless two years have elapsed since the order was made, and not subsequently more frequently than two year intervals. 27 A person during imprisonment may also become mentally ill and be accommodated in the Prison Hospital and come within the jurisdiction of the FMHS for care and treatment purposes. 28 See s.6(a), (e) and (f) · to provide for the care and treatment of persons with mental illnesses in accordance with the best possible standards while at the same time safeguarding and maintaining their civil rights and identity; · to ensure that the services provided for persons with mental illnesses are equitable, comprehensive, coordinated, accessible and free from stigma and in particular to ensure that the standards of care and treatment for those persons are at least equal to the standards of care and treatment for physical illness and disabilities; to promote recognition in the community of the right of persons with mental illnesses to the best possible standards of care and treatment . Under s.5A of the Act the application of the Mental Health Act 1996, extends to continuing care orders made under the Criminal Justice (Mental Impairment) Act 1999, and to continuing care orders made under the Sentencing Act 1997. This means that the objectives and safeguards of the Mental Health Act 1996 apply to those under a “restriction order” who are detained in a special facility such as the Risdon Prison Hospital. 29 The United Nations Protection of Persons with Mental Illness and the Improvement of Mental Health Care (Resolution 98b 1991) 30 Royal Commission into Aboriginal Deaths in Custody (National Report Vol. 1 p.142 4.5.41) AGPS 1991). in their report as follows: "a person held in care by a State agency is owed a special obligation. A duty of care arises where public authority has been exercised to assume control over a person's life. Not only are the persons in custody deprived of their liberty, they are deprived of the ability and resources to care for themselves. Where death ensues it is a matter of great public importance that the circumstances of death should be thoroughly reviewed to ensure this duty of care has been adequately discharged. 31 Royal Commission into Aboriginal Deaths in Custody (National Report (Volume 1) 32 Royal Commission into Aboriginal Deaths in Custody (Vol. 1 p.95 para 3.3.78). 33 Royal Commission into Aboriginal Deaths in Custody (para 3.3.8 Vol. 1 p79, 80 ) 34 Royal Commission into Aboriginal Deaths in Custody (See Recommendation 122). 35 Report on Government Services 2001. Part 10 Corrective Services “Unnatural Deaths” page 459 (table 10A.8).Neither of the two jurisdictions operating periodic detention reported deaths of periodic detainees in 1999-2000 (tables 10A.22 and 10A.60). 36 Report on Government Services 2001. Part 10 Corrective Services The indicator framework reflects the importance of community work as a key aspect of community reparation. [p 454] 159

37 Objectives for corrective services [p.455] Corrective services’ effectiveness indicators relate to the objectives of: · containment - to protect the community by the sound management of prisoners commensurate with the risks they pose to the community, and to ensure the environment in which prisoners are managed enables them to achieve an acceptable quality of life consistent with community norms; · community - to protect the community by the sound management of offenders commensurate with the risks they pose to the community, and to ensure the environment in which offenders are managed enables them to achieve an acceptable quality of life consistent with community norms through referral to social support agencies; · reparation - to ensure work undertaken by prisoners or offenders benefits the community either directly or indirectly (by reducing costs to the taxpayer); · offender programs - to provide programs and opportunities that address the causes of offending and maximise the chances of successful re-integration into the community; and · advice to sentencing and releasing authorities - to provide sentencing and releasing authorities with advice to assist on the determination of the disposition of offenders, their release to parole, and necessary conditions for their supervision and post-release supervision. 38 The Report on Government Services 2001 [p453] “A key policy issue for corrective services in 1999-2000 was the continuing focus on policies and programs that address the transition from custody to community, including the continuity of services between full-time custody and community corrections. Maintaining and strengthening community links for persons in custody, particularly with partners and families, is an important aspect of effective rehabilitation. Rehabilitation is also supported by the provision of opportunities for prisoners to enhance education and employment skills and engage in preparation for release programs while in custody, as well as the facilitation of access to employment on release (via the support provided in community correction post release programs). Greater attention is also being given to the evaluation of prisoner programs and the implementation of best practice models in program design.

THE PRISON POPULATION

39 Western Australian Ombudsman Report into an Inquiry into Deaths in Prisons. 2000. [2.49] 40 At 6.17 41 Report on Government Services 2001[p449] covering the reporting year 1999-2000. The rate of imprisonment is the number of prisoners (excluding periodic detainees) per 100 000 of the general population aged 17 years and over in those jurisdictions where persons are remanded or sentenced to adult custody at 17 years of age (Victoria, Queensland and, for the majority of 1999-2000, Tasmania and the NT) [p450] http://www.pc.gov.au/service/gsp/2001 42 Report on Government Services2000 (p.741) “Prisoners serving sentences of one year or less are fewer than those serving similar sentences 10 years ago.” 43 AIC Paper October 1999 44 ABS Australia Now 45 AIC Paper May 1999 46 AIC Paper May 1999 47 AIC Paper April 2000 48 AIC Paper May 1999 49 “Stepping Stones”. Submission to the Ombudsman. 50 AIC Paper. May 4th, 2000. 51 Hepatitis C progresses slowly and complications occur over decades rather than years. The rate of progression to cirrhosis (liver scar formation) is 5% per decade, with hepatocellular carcinoma only occurring in those with cirrhosis. (Reference Dr Beadle). 52 Prison Hospital annual reports. Corrective Services, DJIR. 53 Dr Ken O’Brien & Associate Professor Gerry Farrell Risdon Prison Inquiry. FMHS Report. February 2000. The forensic treatment issues are covered in Dr O'Brien and Associate Professor Farrell's report. The recommendations for designated beds and separation according to treatment needs are covered by Dr Tony Falconer. 54 This is addressed in both consultant's reports and also the submission of Dr McCarthy and Dr Jager and elsewhere in this report. 55 Dr Beadle was of the view that the totality of mental health needs within the prison population needed to be considered, and that a lack of psychology, social work and other services meant that the health service would only have access to those services through the Forensic Psychiatry Unit, whereas he favoured a more comprehensive approach. 56 Legislative Council Select Committee Report "Correctional Services and Sentencing in Tasmania" (1999) 57 Dr Tony Falconer, Consultant Health and Medical Services, Department of Corrective Services, Queensland. 160

January 2000. 58 Prisoners who elected to work were, at the date of the inquiry, engaged in peeling onions by hand in commercial quantities. 59 The concern was that a prisoner considered sufficiently at risk to be put in an observation “strip cell” in the Hospital could at the same time be charged with a disciplinary offence[for physically resisting the removal of her clothes] and for swearing at the officers involved. 60 Maximum are locked down at 5.45pm, minimum at 7.15pm and 6.45pm on weekends.

THE RISDON PRISON HEALTH SERVICE

61 There was a delay in filling this vacancy following the resignation of the sexual health and infectious diseases counsellor. 62 In the last 10 years four HIV positive prisoners have been identified, all of whom were known to be HIV positive at the time of their reception. Dr Falconer considers that compulsory testing represents an unnecessary waste of public resources and that the legislative requirements in this area should be reviewed. 63 The contracted drug and alcohol service in prison was part of the Programs Unit not the Prison Hospital, and no fee is charged to the hospital for the service. The service is contracted to provide counselling, brief intervention and group approaches, to participate in the induction sessions and to provide specialist support for prisoners with high needs. 64 The "prisoner health forum" consisted of an executive level with convenors of working groups reporting to the Secretary of the Department of Health and Human Services and the Deputy Secretary and Director of Prisons (Department of Justice and Industrial Relations). The three working groups were General Health Services, Drug & Alcohol Services and Mental Health Services. The convenor of the Mental Health Service team was Melanie Allen. The convenor for the Drug and Alcohol team was Bert Dorgello and the convenor for General Health Service was Carol Owen. Mr de Bomford said that it pulled together Mental Health, Medical, nursing and the Prison Hospital staff. The forum was not a governing body as such, but a planned forum for the delivery of those health services. The working groups included the DON, Departmental delegates and those from whom services are contracted such as "Your Place", and other relevant personnel, such as HIV educators. The intention was to undertake planning at a workplace level and then tie that together at a higher executive level. 65 Such as the Quality Improvement Council Health and Community Services Core and Primary Health care Modules (EQuiP). 66 The Southern Tasmanian Division of General Practice “Division News” (March / April 2000) referred to the ten main obstacles to accreditation. These include some which are relevant to the Prison Hospital practice including incomplete of absent health summaries in medical records, brief or poor progress notes, and inadequate procedures and protocols for staff safety. 67 See Dr Falconer Review of Primary Health Care Services, Risdon Prison, Tasmania January 2000 page 5 and 6. 68 Joint letter of Secretary of DJIR and DHHS dated 27th March 2001. 69 See the Risdon Prison Report. (P.62) 70 Mr Williams gave an example of people being arrested and charged in Launceston, held in the holding cells there but if during transit to Hobart the escort is informed by radio that the Hobart Remand Centre is full, then these people will go directly from Launceston to Risdon. He said when they arrive there the assumption by prison health services that they have already been seen because, technically, they are supposed to have gone to the Remand Centre. He said that every other week he would get a handful of people who have missed that initial health assessment and that it illustrated that the lack of checks and balances in the system. 71 Mr Williams stated that work managers sometimes refused to release inmates to attend induction sessions which he estimated lasted about an hour and a half to two hours, or for hepatitis B blood tests, a procedure which took some fifteen to twenty minutes. 72 " And very, very often I will have inmates say to me three and four weeks later, 'What happened to my results?', and I say, 'You don't have them yet?' - ten days, you know, they normally take ten to fourteen days - 'No, no one has told me.'. So, when I search for them - if, indeed, they are anywhere to be found - they are in this pile which has just been put aside. Now, the validity of that blood test that as time goes by becomes less and less appropriate for the commencement of a vaccination course and, not only that, it's just - it's a normal medical procedure. Now, I have been talking about this for four years - the fact that it doesn't work, that there is no system. And it just never seems to be dealt with.” Evidence of Mr Williams. 73 Dr Falconer Report January 2000 (page 22). In summary that in the past 10 years 4 HIV prisoners have been identified all of those who were known to be HIV positive at the time of their reception into prison. Further that the majority of correctional institutions no longer have policies of compulsory testing for HIV and the test may be in the “window period” and be a false negative. 74 See the Risdon Prison Report (P 59) 161

75 These issues, including the transfer of nursing staff to the Health Department, are addressed primarily in Dr Falconer’s report. On 27th March 2001 DHHS and DJIR announced that the management of the Hospital and correctional health services will transfer from DJIR to DHHS from 1 July 2001. 76 The organisational and reporting structure is set out in Dr Falconer’s report. Consultant Health and Medical Services, Department of Corrective Services, Queensland. January 2000. 77 Hospital Admission Statistics 18 January 2000. Concept Robyn Hopcroft, technical design Bridget Hiller, data entry, Coral Musket. 78 See Western Australian Ombudsman report (4.34) 79 Mr de Bomford referred to the 1995 review which recommended a separate secure forensic unit outside the prison system and did not proceed due to budget constraints and the staffing problems created by the opening of the Remand Centre. 80 (See p.21and p23 of the consultant’s report). 81 Johnston 1991; Biles and McDonald 1992; Hayes 1994; Liebling 1994; Liebling and Ward 1994; Rowan 1994.

THE RISDON PRISON HOSPITAL

82 With regard to nursing competencies and their application to nurses employed at the Risdon “special institution” the practice of forensic/ psychiatric nursing in Tasmania, is subject to the same legislative/regulatory framework as all other areas of nursing. 83 To continue to practice as a nurse in Tasmania, nurses have a legislative responsibility to maintain a current and contemporary theoretical base, and must demonstrate competence to practice under Section 21 & 22 of the Act. All nurses must sign a declaration of competence to practice when applying for an annual renewal of a current practicing certificate. No nurse can practice in Tasmania without a current practicing certificate under Section 40 of the Nursing Act 1995.” 84 He said that the nursing staff, on numerous occasions, had raised concerns with the nursing administration at the prison and that, to a large extent , those concerns had been ignored. He considered that the prison system was a difficult system in which to create change, particularly for people such as nursing staff who see themselves as being disempowered. 85 Dr Beadle considered that the nursing administration had an ability to implement change and to increase rostering for nursing staff, but this had not occurred. 86 Dr Falconer, page 8 and 9. 87 One position had been vacant for some 18 months and a view was expressed that this failure to fill these positions and the increasing casualisation of employment could be of detriment as nurses would be unfamiliar with the clientele, the hospital and prison security. 88 Mr de Bomford said that: "I would actually like to change our structure, so instead of having eight level two clinical specialists on $50,000 a year, … - and working under them four level ones, I would actually like to change it round and say, right we'll have four level twos and those people can now start acting as level twos and start giving directions to the eight level ones. Now industrially they will be opposed to it because they see it as eroding their working conditions, but I actually see it as using the funds that we save to create an extra position. So I actually want to fill those positions with permanents plus put one more day worker on." (p 20). 89 One nursing position was lost in the change from the 8 hour shift to the 12 hour shift, and the other when a nurse was redeployed from the hospital inpatients to the Hobart Remand Centre when the new Remand Centre opened in 1999. 90 It appears that this was discussed some years ago but nothing was implemented. 91 Mr de Bomford believed that a Level 2 at the Risdon prison hospital was not operating at the same level as, say a Level 2 in the Department of Psychological Medicine or other mental health facility in Tasmania. He regarded the creation of the Level 2 positions as a historical anomaly as many years ago positions were upgraded to that level to encourage nurses to work at the prison hospital. 92 These include the custodial environment, and the absence of a primary therapeutic focus, which deprives Level 2 nurses of the opportunity to work to the level expected of those positions and in turn limits the role of the CNCs and the professional advancement opportunities of the Level 1 nurses. There was considerable criticism by almost all nursing staff about the lack of in service training, the absence of policies, protocols and a clear reporting structure, the absence of internal performance assessments and a career structure, accountability, and service delivery issues. 93 Dr Falconer (P 8) Some nurses also expressed a concern that an increase in Level 1 nurse would make it more likely that Level 1 nurses, with relatively limited experience, would be required to respond to a medical emergencies when rostered on alone at night. 94 If one nurse is undertaking the medication rounds the nurse charged with observing the “at risk” patients on suicide observation can be called away to assess incoming remandees leaving no nurse in that central control area. 162

95 There was concern expressed that there was no nurse at the Remand Centre, from 7.00 p.m. at night until 7 am the next morning, and no nurse whatsoever at the Launceston Remand Centre. The number of people in on remand varies from sixty or seventy across the State but never below, about twenty five. 96 All the Remand Centre health service needs are basically provided by the Risdon prison hospital staff and the visiting medical officer. 97 This is both due to the increase in the prison population, and because about 50% of all remandees come directly to the prison from Launceston Remand Centre where there are no nursing staff and those coming to Risdon need to be processed, a risk assessment undertaken and their medical needs attended to. Because there is no nurse on night shift at the Hobart Remand Centre, remandees who become ill during the night, may be transferred to the prison Hospital and there is no handover at the Remand Centre for the nursing staff coming on duty at 7.00 am. 98 Patients are locked down for an additional period at midday to enable nurses to have their regulation lunch break. 99 Dr Beadle considered that the two nurses could work as nurse practitioners providing direct patient care, with the prison medical officer operating as a consultant if there was a more significant problem to be addressed. Some nurses said having one nurse in the out patient area was a poor utilisation of the doctor's time as it decreased the number of inmates that the doctor could have seen. 100 Through reallocation when the Hobart Remand Centre opened and when the nursing shift altered from an 8 to a 12 hour shift. 101 The former Director of Nursing, considered that an appropriate ratio for a medical ward was one to eight or one to nine, depending on the sort of programs and activities undertaken. This equated to about two nursing staff and an additional part-time nurse during the day time in the Inpatient area. This approximates Dr Falconer’s recommendations. Dr Assenheimer expressed a similar concern about resources and the level of service provided. She said that by comparison with the Royal Derwent Hospital where the ratio was one to four, the ratio at the Prison Hospital was about one nurse to 28 inpatients. 102 These tasks include answering telephones, ensuring medical records are available for doctor’s clinics, filing in medical records and when time permits, typing clinical protocols. It was suggested by Dr Falconer that a more cost effective alternative would be to introduce either a clerical position or an additional enrolled nurse position to perform these duties. 103 Concern was expressed about the failure on occasions to replace staff. One nurse said " sometimes if the nursing staff are off sick they are not automatically replaced, particularly on weekends ... I think that is a mistake.” 104 The nurses do twelve hour shifts, generally two on and two off, structured so that each shift is actually in a different area. This includes two days in the outpatient area, then two days off and then another two shifts; usually one in the in-patients and the other in Remand. This indicates that the intended pairing of nurses with complementary skills has been affected by the reduction in the number of nurses on duty. 105 The adverse effect of shiftwork and rostering has been documented in the AMA National Code of Practice. 106 Ms Muskett’s conclusions and recommendations are generally consistent with those referred to in Dr Falconer’s report and have been adopted as recommendations for the purpose of this report. The recommendations Ms Muskett made did not appear to have been actively implemented at the date of this inquiry (late 1999). 107 That is the categories developed for those considered to be “at risk” and referred to as Category A, B, C, S or R. Ms Muskett considered that the policies, procedures and documentation at time of admission to the Prison were adequate. 108 It appears that in about 1996 there were discussions between the Director of Nursing and CNC (Psych) as to the formulation of individual treatment plans for inmates but this was not implemented to the standard required and there appeared to be little recognition of the significant clinical benefits in establishing care plans. An example of an inmates individual program roster was provided to me. I am of the view that there are deficiencies in rehabilitation and planned treatment, and a substantial amount of work needs to be undertaken in this area. 109 In relation to inmates with major mental illnesses these tools included: the Briefer Psychiatric Rating Scale (BPRS), Positive & Negative Symptom Scale for Schizophrenia (PANSS) Nurse’s Observation Scale of Inpatient Evaluation (NOSIE) the Clinical Global Impressions (CGI), and the Clinical Global Severity (CGS) Scales. 110 Australian Council of Healthcare Standards (ACHS) Accreditation Guide; 13th edition and Standard 6.3 Adequacy of Content. 111 An example was given of a medical emergency when an inmate in the yards was having a heart attack and the nurse on duty was required to leave their post. There was said to be no policy or guidelines relating to emergency resuscitation procedures or leaving the hospital to respond to a medical emergency happening in the yards or police holding cells in the Remand Centre. 112 One nurse commented that "previously we had two nurses on night shift but to cover both the external emergencies in the Prison complex and also to make sure there was always a nurse present inside the Prison Hospital in case of emergencies there and to make sure that observations were done on people on suicide categories 163 and so forth, now there is only one which means if there is an incident in any other part of the Prison, that nurse then has to leave the Prison and the hospital unattended." 113 By agreement nurses now cover the holding cells in the adjacent police watch house. 114 There was concern expressed by some nurses that the prison regulations may not have been changed as previously promised to cover a nurse who may have been called away from the hospital to some other area in the prison. 115 Some nurses said they had called after hours and there had not been an answer to their call. Further, as the closest CNC lived at Bellerive, there would be some fifteen to twenty minutes delay in responding under that “on call” arrangement. 116 One nurse described an incidence where an inmate had a potential exposure to Hepatitis B, Hepatitis C, and HIV but at that stage there was no policy regarding the management of needle stick injuries. There appeared to be little if any training in the event that capsicum gas had been used to incapacitate a prisoner and treatment was required. 117 Mr de Bomford said that he'd found it quite hard to make that time available and it was generally felt that there was a lack of resources available for such projects with the performance of immediate clinical and administrative duties. Dr O’Brien and Associate Professor requested that Mr de Bomford provide them with the procedures and protocols. These were not forthcoming. Dr Falconer sighted those developed by Dr Beadle and Nurse Norris. 118 Dr Falconer gave two examples of where protocols and guidelines would be of assistance. These related to the administration of Narcan and the use of adrenaline in situations of an adverse reaction to a vaccination. 119 Generally individual nurses had made verbal requests rather than written, formal request to attend training course but most believed even formal requests advocating training would have made very little difference. 120 CPR training was regarded as critical and it was suggested that personnel from the Southern Ambulance Board or Red Cross should be contracted to provide this training on an annual basis. Nurses regarded the prison hospital CPR training as inadequate and "pathetic." A typical response was eighteen months, the only in-service training course one nurse attended was an ECG course, for about an hour and a half. Mr Muskett pointed out that there was equipment, like a 'resus Annie' there for staff to use to maintain their CPR skills but it was not being used. 121 One nurse, employed on a casual basis, applied to attend a course on sex offenders, but this was refused. This raises the issue that five permanent positions are being filled by casual employees employed on an ongoing, virtually permanent full time basis who also require the same kind of training as permanent staff. 122 Nurses who had worked under the DHHS at other institutions, such as RDH, reported that they had received more regular in service training. 123 Mr Williams reported that he attended most National and state conferences relevant to his work, and that he had no complaints whatsoever about in service training. He agreed that this was possibly because his funding came from DHHS, who might more readily accept such training as a way of keeping up to date with health issues. He had reasonable facilities to do his job. There were protocols and procedures in his area but that multi-discipline training was not happening within health care. He said some of the specific health care workers, himself included, were called on to provide training to the custodial staff. 124 One disadvantage of a 12 hour shift may be that towards the end of the shift staff may be becoming tired and not willing to use part of the time on a 12 hour shift for training. 125 Nurse generally did not regarded the induction “buddy system” as a satisfactory substitute for more clearly defined roles or duty statements for each area covered by the shift roster. 126 Dr Beadle discussed this with the two nursing staff concerned, and with the Director of Nursing, indicating why he was unhappy with a situation where appropriate instruction on procedures and protocol was not taking place. 127 One nurse referred to a six month transfer to RDH and described that exchange as exceptionally useful. Ms Barwick, a member of the FMHS team, referred to a staff exchange which enabled her to go to Long Bay Prison, Mullawah Women’s Prison, Emu Plains Women’s Prison and Silverwater Prisons. 128 See Dr Falconer Recommendations 1 and 3. 129 Mr Muskett said that it would be beneficial to be able to send one of the Level 2's or Level 1's along to conferences and training courses as they would "receive some valuable input to their training and ideally, especially level twos, should be coming back, as should I, presenting staff with some in-service on what they experienced.” 130 Mr de Bomford said that where possible, he would try and get somebody to an interstate conference once a year. He and Ian Balmer attended the 1999 Forensic International Mental Health Conference in Melbourne as did Ms Barwick from the FMHS team and Dr Jager.130 131 Mr Balmer said that the only ‘in-service’ he now provides is for new prison officer recruits, and not for nursing staff and while he supported the training of corrective services officers he was critical of a budget allocation that in his view left insufficient resources to train nursing staff. 132 The nurses, the Director of Nursing, some members of the FMHS teams and the former Director Dr Lopes all supported enhanced training for corrective services officers. 133 Western Australian Ombudsman report. Recommendation 5.10. “That as a priority all prison staff be given initial or refresher first aid training, including the use of resuscitation techniques and equipment”. 134 “An exploration of the role of the Australian Forensic Nurse”. Evans & Wells. June 1999 (p.28). 164

Recent research indicates that forensic nurses caring for offenders are dealing with many offenders who “have dual diagnosis of drug dependency plus mental illness/ emotional difficulties/ personality disorder”. Forensic nurses may be trained to care for the mentally ill but have little training or experience in the care and management of drug dependency yet, given the high rate of incarceration for drug related offences, may require this additional training. 135 This resulted in medication from the Prison Hospital recommencing. Nurses reported that there were again complaints from management that it was taking far too long to medicate people, and the nurses were experiencing difficulties trying to fit the requirements of security staff escorting prisoners, with clinically appropriate times. There was also a criticism that some Officers were hassling and would deliver inmates for medication as "fast as they possibly can just to get them out of the way so they can get them locked up and they can go and have their break”. At one stage, nurses had been directed by management to carry two suitcases full of drugs up into the yards and dispense them from the dispensing cell. They regarded this as an unsafe practice and imposed industrial bans. 136 Those interviewed said there were complaints from Prison management that it was taking too much time to escort the inmates for medication, and the dispensary was then moved to "F" Division opposite the "C" Division mess room into an old converted cell. Some said that for a time this worked reasonably well as an interim measure, and they were advised that modifications and improvements to that dispensary would occur. These modifications did not occur. 137 One nurse said that the incident in May had to be seen to be believed. Inmates took drugs of any description, regardless of the outcome. At the time of the break in the medication was stored in an old wooden cupboard which was not properly secured. 138 If there is an incident there is only the one entrance and exit to the cell, only the nurse has the dispensary key, and once out in the yard nurses are still reliant on the Officer to let them out of the yard. Potentially if there was an incident, they could be trapped in the dispensary. 139 It was said that there were a lot of promises made but unfortunately not acted on, or an initial response and measures agreed to be taken would later be abandoned. A roller door was installed after the dispensary was broken into, but the hatch requested by the nurses to replace the box previously there has not been provided. A fire extinguisher has been provided, but nurses have not been instructed how to use it. The system for dispensing the medication was improved by measures such as escorts, and not letting the prisoners back in until after the nurse came back out of the dispensary, and locking the hallway to prevent prisoners accessing this area while medications were being issued. It was said that the officers are now becoming lax about these measures. The main dispensary backs on to a walkway, which is inside “F” yard. The walkway is not always closed off and nurses say the inmates do go up and down that walkway. There is only one entrance into the dispensary and they are concerned that in case of fire, they might not be able to get out of the dispensary, and if they did they would then need to get out of the prisoner's yard. The other side of the dispensary backs on to a hallway which leads to the kitchen and to the main yards and the mess room. 140 One nurse referred to an old freezer or cool room, which could be modified and would be a better location as nurses would not then have to take medications up through the yards but could go around the Hospital and in through the main gates. He said "there would be no way an inmate could access us. It is not backing onto a yard which has always been one of our major concerns if you have a medication room in an active yard”. 141 They also said that there were a whole range of safety issues with regard to the main yard dispensary including relocation to an area which would be much more secure and safer for the transfer in and out of drugs and restocking, but that nothing has happened since the incident in May. The general attitude was that any measure which costs money appears to be disregarded, irrespective of the safety aspects. 142 Nurses currently access Medium Division by walking along the Division front and past inmates. There have been plans mooted to put in a back door from the Hospital so that nurses could go out through the south wing garden and access Medium Division via a stair-well. One nurse said that "We were supposed to have had a hole put through the wall into "A” Division which is where Medium is now so we could walk from the back of the Hospital in there, not have to mix with the inmates, and we take the medications in there. That was promised to us two years ago. And this last enquiry after the riots they were going to take care of that fairly soon and yet... it has just been put off and put off and it will continue to be put off because basically it comes down to money and they don't want to spend it”. Mr Muskett considered there were some disadvantages with branch dispensaries being located in the prison and that the nurses had legitimate safety concerns about their personal safety under the present arrangements. He was "amazed that someone has not been assaulted yet”. 143 Nurses were asked whether dispensing in a cup gave inmates an opportunity to store these drugs as opposed to ingesting them, and responded that they watched inmates take the medication but this did not always work. One nurse described a situation where an inmate held Methadone in his mouth and then went to the toilet and spat it into a container before taking it back with him to the yards where other inmates had syringes intending to inject the Methadone. Another example was give of prescribed drugs being taken from inmates by other inmates though it was said that the corrective services officers were vigilant in attempting to prevent this: 165

"I know certain people with ADD who are on dexamphetamines, which is exactly the same as speed, I know they're stood over, I know people are stood over for their major analgesics for back pain, this happens, it goes on in every prison in the world no doubt. I haven't got any ideas how to stop it, I don't think you can stop it”. 144 It was said that nurses finishing their rounds in ‘N’ Division carried a card of Panadol or other medication in their pockets to avoid going all the way back to the dispensary, and back to the cells if somebody required that medication. 145 It was said by one nurse that "there is a potential to nick anything you want, it's that simple, it is, there is nothing iron-clad about it” and that if he'd "wanted to walk out with a plastic bag full of drugs that I could have done so at any time during my career”. 146 The dangerous drugs kept in the division dispensaries are major analgesics. Mr de Bomford said that the dangerous drugs and Narcotic Substances (Schedule 8 Drugs) are placed under lock and key and only accessed once prescribed. Mr de Bomford considered that the hospital does a good job of securing pharmaceuticals, but not a good job of monitoring the use or auditing the amount that they hold in stock, apart from the Schedule 8 drugs. Clause 2.6 of the Nursing Board Guidelines provides that “All Narcotic Substances should be checked at the commencement of each shift by the registered nurse in charge coming on duty and one other registered nurse. This practice enables early detection of any discrepancy and ensures that the accountability for the Narcotic Substances is maintained by the registered nurse responsible”. 147 One nurse gave an example of medication (Panedeine Forte) from the Royal Hobart Hospital given to an Officer who in turn gave it to an inmate to deliver. 148 He was described as overworked, and not readily available for about half the day for most of the staff in the Hospital as he was engaged in these other tasks. Nurses report that occasionally they have to call in Andrew Muskett if they've run out of Methadone or some other drug on weekends and after hours as new admissions makes it difficult to predicted what medications will be required. 149 See Dr Falconer. Recommendation 20. 150 Section 2.1 of the Nursing Board Guidelines provide that “Two persons, one of whom shall be a registered nurse, and another a responsible person, preferably a registered or enrolled nurse, should, check the administration of all Narcotic Substances” (Schedule 8 Drugs). 151 It was inferred that they regarding this as a clinical function of registered nurses and not part of their job. 152 The Nursing Board of Tasmania has issued “Guidelines in Medication Management for Registered Nurses”. Section E of the Guidelines state that “The nurse who administers a medication must give the medication by direct administration from the pharmacy labeled container to the client/patient. Medications must not be predispensed by nurses”. 153 The nurse on that shift was aware of this requirement and when interviewed said she would have administered that drug if she believed that it was required. The partner of the person on remand said that he had told her that he was having an adverse reaction to the drug and that he had requested the Cogentin on two occasions and made a request to see the psychiatrist. Though prescribed to be used if required, the drug was not administered over a period of some days before that person’s death. 154 An incident was described where it was alleged that medication was missing from the drug cabinet in the Remand Centre. This was thought to occur in circumstances where there had apparently been only one other person with access to that cupboard. While the CNC Medical had formed a belief that a particular person may well have been responsible, the allegation or warning was not put out, partly out of a concern that the response to the investigation would be a stress claim. 155 The need for specially trained supervisors to assist mental health staff is beginning to be recognised in that specialist tertiary courses are emerging, such as the course at the Melbourne Institute of Experiential and Creative Art Therapies. Some more modest support program needs to be put in place at Risdon. 156 One nurse referred to the stress of having cared for a suicide victim and said "It's just the nature of the place too, it's exceptionally volatile, exceptionally dangerous and I mean compared to any locked ward that I have ever worked in it pales into insignificance”. 157 A FMHS nurse ,who is an authorised officer under the Mental Health Act 1996, reported an incident which occurred when police were attending to assist in facilitating the admission of a mentally ill person for to the Royal Hobart Hospital on 12th March 1999. The police attending were interviewed and stated that they had been required to use capsicum spray to incapacitate the person who was highly agitated, screaming and behaving in an aggressive manner. The person, a large and apparently physically strong man, had a long knife affixed to a steel pole and attempted to use this as a weapon. The officers indicated that they held grave fears for the safety of the mentally ill person, and when the person came out of a room brandishing the weapon one officer in the face of a potentially serious assault had drawn his firearm, but the matter resolved and the person was escorted outside, secured, reassured and about an hour later conveyed to the RHH. While police had directed the area to be cleared, Ms Barwick, as the authorised officer was present and, while not in immediate danger, she had observed the events and to some degree was a participant in them. Dr Jager had attended the premises earlier, assessed the mentally ill 166 person as best as could be managed in the circumstances and signed the admission. He was advised of the incident by Ms Barwick who then proceeding to attend a scheduled meeting. Ms Barwick appears to have performed her duties appropriately. 158 See correspondence - Ms Browne to Dr Jager and Dr Jager to Ms Quinn re Ms Barwick, 3rd December 1999. 159 Nurses were questioned whether this regime constituted a therapeutic setting for rehabilitation purposes and were invited to give their views on the treatment philosophy of the Prison Hospital, whether there was a consciousness of what a duty of care means in a hospital setting, and their understanding of their obligations and responsibilities are as professional people to this diverse clientele. 160 One nurse described it as "quite a culture shock to walk into an environment (and) an institution that was very regimented." He felt that this detracted from the therapeutic aims of the Prison Hospital. It was said that the hospital needed to be a bigger, more diverse environment, more humane and focused on rehabilitation of inmates. There was said to be a need for more specialised training for nurses, health professionals and others. 161 See “Suicide / Self Harm Management FMHS. 162 Legislation gives the Superintendent of Prisons the power to transfer any prisoner anywhere on the prison premises. Generally the Prison Hospital staff thought it would be better to have protocols as to the circumstances in which inmates could be admitted to the hospital. It was suggested that these could be formulated by a team consisting of a psychiatrist, a psychologist, medical, welfare and Corrective Services personnel such as the Manager of Accommodation and Operations. The new Admissions Procedure adopted since this inquiry commenced could assist in resolving this concern. 163 Sections Nine of the report further discusses the impact of the main Prison on the Hospital and the difficulty in creating a therapeutic environment and providing quality health care in a custodial environment. 164 Dr Beadle regarded the quality of those employed as critical in ensuring the quality of the service delivered. He referred to the new Hobart Remand Centre where the opportunity had arisen with the opening of the new facility, to select and inculcate staff with values which created a different focus for correctional care in that setting. His preference was to have a dedicated security staff, chosen on the basis of their ability to understand the requirements and principles of delivering a health service, within a correctional institution. He considered that such personnel needed to be sympathetic, needed to understand the needs of the inmates and that the entire staff of the prison hospital needed to focus on the mission of health care. 165 Dr O’Brien and Associate Professor Farrell’s report (pages 17,18 &19), 166 Nurses reported that ability to take people out into the either the south wing yard or the east wing yard, which are garden yards, had declined and become a rare event. This was due to lack of staff combined with increasing bed numbers overall, plus a more diverse and much needier clientele, and a lack of staff motivation and the increasing institutionalisation of patients. Mr de Bomford said the amount of lock up time was dictated by staffing levels and by prison regulations. He said the regulation covers the unlock, and it was more the staffing level which controls the lock up period. 167 It was said that most of the Prison Officers were either not interested or fully engaged in their own tasks but the difficulty was exacerbated by the change in shift times. At 1.30 p.m. the patients, locked down in their cells to enable staff to have meal breaks, are unlocked but at about 2.30 p.m. officers start getting ready to knock off and then two officers leave and only one officer comes on duty. 168 Human interaction and communication was regarded by nurses as important to rehabilitation, as was fresh air and sunshine, but it obviously wasn't happening. One nurse said that "a person could be there five days and you might end up getting to spend an hour with them." 169 When asked how one nurse said "Because there's a gap under the door about that high...And they can hear each other, and roll papers and pens and pencils back to each other." 170 In terms of occupational therapy it was said that there were activities which could be introduced, like belt making, which did not need a great amount of tools. 171 Mr Muskett referred to a time when the Prison Hospital had barbecues at weekends for patients until this was prohibited by prison management, apparently on the basis that the inmates in the main prison were not having barbecues. He said that this was despite the general prison population having other programs and events such as sports days, hobbies, education programs and people coming in to play instruments and to sing. 172 Since October 1999 an arrangement has been made with the Occupational Therapist at St John's Park to provide an occupational therapy service to FMHS patients including persons detained at Risdon Prison Hospital. 173 It was said that at present "the educational programs are pretty few and far between”. 174 Ms Dabner said that the hospital patients by and large are let down a bit, and that the opportunity for formal educational courses is "almost zero". She has some participation in the sentence plans for long term inpatients. It appears that a few hospital inmates are involved in Basic Education supervised weekly by the Adult Literacy Coordinator from TAFE. The TAFE Literacy Coordinator schedules a visit to the Hospital every Monday for one hour. This work depends on the clientele. For example in November 1999 the coordinator saw two inmates with literacy problems, but in April 2000 these inmates had been released and the scheduled visit is continued to maintain 167 contact with the Hospital. To improve the education situation for Hospital inpatients, Ms Dabner considered that a more reasonable accommodation facility was required, the physical environment of the Prison Hospital needed repairing or modifying, and that a better separation of clientele according to needs would be "a great advantage to many of those individuals”. 175 Dr Assenheimer said it would not only provide a more humane environment but it would be much less contentious and much less distressing than it is at the moment, and provide some positive solution rather than just a punishment approach. 176 Mr Balmer in 1990-91, noted that his absence for two months “brought programs to a virtual standstill”. 177 One nurse commented that "at the Royal Derwent it was part of your job to see that people got recreation and a good balance of rest, recreation, sleep and so forth”. 178 See the November 1997 update of the 1995 Forensic Services Review DHHS (page 3). 179 The full text of Dr Jager’s submission is annexed to the report of Dr Ken O’Brien and Associate Professor Gerry Farrell. 180 Other officers appeared to have little comprehension of the role of the forensic mental health unit, the hospital or of what constitutes a therapeutic environment. 181 The impression they had, whether right or wrong, was that they had no valid contribution to make to the therapeutic care and management of inpatients, because their observations were treated as being of little value. This was probably heightened by the relocation of the Forensic Mental Health Service and the change to sessional consultations. 182 One nurse responded that "it could take as little as three or four minutes if there is an Officer up there is on the ball and takes you seriously and is doing nothing, to at times we have waited half an hour for somebody to come down. It just depends very much on the Officer on duty”. 183 This decision was made when Martin Bryant was located at the prison hospital and a number of those interviewed said there was a concern that, with only one custodial officer and nurse on duty at night, if something untoward happened staff might come under suspicion. The security function is difficult to manage in a therapeutic environment but this particular measure had been introduced even though there did not appear to be any security breach which justified the measure. 184 A better system might put the onus on officers to justify why they have not responded to a request to attend to access a cell for medical treatment reasons. 185 It was said by a number of nursing staff that the prison staff: " have got to wait until somebody is called in and that person on call could be forty minutes or an hour away. We've had people we've suspected having heart conditions and problems and we've had to wait an hour until an Officer is brought in before they are allowed to go by ambulance out of the place”. 186 The 1997 Direction states that “The On Call Officer must be notified of any after hours external escort of inmates from Risdon Prison prior to the movement occurring wherever possible. If circumstances dictate immediate escort, notification must take place at the earliest possible convenience.” 187 The on-call officers are either Mr Jones, the Operations Manager or Mr Salter, the Accommodations Manager. 188 Mr Jones, the Operations Manager, states that in the last 5 years he is aware of only two occasions that there has been an exception to this directive and that in both instances an instruction has issued that staff were to notify either himself or the General Manager of any escort movements. This was due to the high profile of the inmates and the status of the security arrangements pertaining to those inmates. 189 This issue is being investigated as part of the Prison Report, Part 2. 190 This incident and the consequential exchange between the Director of Prisons and the Security Manager was the basis for the transfer of the Security Manager to other duties. 191 Dr Falconer, at page 17, suggests that a Standing Order for appropriate use of Narcan by nursing staff could have assisted the situation by leading to immediate improvement of the offender and perhaps negating the need to call an ambulance. He cites this as highlighting some of the problems of accountability within the current organisational structure at Risdon. 192 Dr Falconer comments, on page 24, that should there be an adverse medical outcome the failure to facilitate external review recommended by the visiting medical officer, may expose the Agencies to compensation claims likely to exceed the cost of properly planned escort duties. 193 Nursing staff on a two days on and two days off shift were on duty for two consecutive days, but in two different parts of the prison. In his view it would be preferable to have nursing staff working regular shifts, particularly during the day when other staff were present and when other staff, providing alternative services, were present. Dr Beadle considered that although many staff favoured the 12 hour shifts, their work hours needed to fit in with the objectives of the health service and not the other way around. 194 That consideration be given to the return of an 8-hour nursing shift system and, while this is being negotiated/implemented, the introduction of a limited number of short term shifts, such as 7 – 11 pm, thereby allowing suitable and stable patients to participate in occupational/recreational activities for more extended periods. 168

195 Dr Falconer’s Recommendations 3, 4, 5, 6 & 7. An additional Level 2 Nurse be appointed on an interim basis to facilitate professional training for nursing staff at Risdon. An additional clerical staff member or Enrolled Nurse be employed on an interim basis to minimise the amount of non nursing duties currently performed by nursing staff as well as assisting with the development of protocols and standing orders. The proportion of Level 2 nurses at Risdon be maximised. A separate review be undertaken of the positions of DON, CNC Medical and CNC Psychiatry to provide clarification of purpose, role and job components. A formal review of nursing staff numbers follow the review proposed in Recommendation (6). This review of staff numbers should also include the interim positions identified in Recommendations (3) and (4). 196 (see p.12). 197 (Role of the CNCs, p.21). 198 (See Dr Falconer Recommendation 1; Dr O’Brien Medium Term 1). 199 Over 50% of remandees came directly to the prison from the north and with the increased prison population. 200 see Dr Falconer recommendation 22 201 The principles in the Standard Guidelines for Corrections in Australia” 202 paragraph 6.76 203 Dr Beadle provides six sessions per week to Risdon and the Hobart Remand Centre (HRC) but during the course of this investigation additional hours were negotiated. Prisoners at the Hayes Prison Farm are reviewed at Risdon Prison by the VMO if medical assessments are required. About 50% of all receptions to the prison come from the north and north-west of the State and are processed initially in the Launceston Remand Centre (LRC). There are no nursing staff at the LRC. The remainder come through the HRC where there is one nurse on the 12 hour day shift each day.

THE RISDON PRISON MEDICAL SERVICE

204 Dr Beadle’s response to the Ombudsman draft Prison Hospital report. (See Appendix 1) 205 The primary role for developing, promulgating and reviewing policies, procedures and protocols should be the Director of Nursing assisted by CNCs and relevant staff in consultation with the relevant consultants (Dr Jager, Dr Beadle) and other service providers. 206 Some functions formally undertaken by the psychiatrist, or services provided by Forensic Mental Health Service, such as the detoxification of drug dependant persons, had been taken over by Dr Beadle in 1993, and he has since developed protocols including protocols for drug and alcohol detoxification. 207 Requests for appointments: The requests for appointments are either made on request forms handed to the nurse attending the twice daily medication round, or may come via the custodial officer in the yard. 208 He stated that the following actions had been taken in response to this situation: -

1. Inmates are seen by the Medical Officer according to the assessed urgency of their requests. 2. If insufficient information is provided on the form, the nurse will return the form to the inmate for clarification. 3. A protocol for nurse initiation medications has been written. 4. The CNC Medical or a nurse under his direction will review all dental requests and institute initial management. 5. The CNC Medical together with the dentist will determine which inmates require priority in treatment. 6. The CNC Medical will deal with all requests for special diets. 7. Requests for Medical attention that are not urgent will remain with the inmate's medical file on the Medical Officer's desk until request is actioned. The problem of high demand for Medical attention and the resultant backlog of non-urgent requests has been discussed with the Senior Medical Officer at Clarence Community Health Centre and the SE Manager of the Department of Health and Human Services in May 1998. 209 The new request form has a tear off slip which is returned to advise the inmate whether the request has been approved, not approved or pending. 210 Dr Beadle said that the increase in hours of the Prison Medical Officer in January 1999, to attend the newly commissioned Hobart Remand Centre, had not been sufficient to meet the extra duties and the demand for service at Risdon Prison Complex and Hayes Prison Farm. Further, it appears that the Senior Medical Officer at Clarence Community Health Centre resigned in December 1999 but prior to resigning had intended to write an "Issues Paper" concerning medical services at Hayes Prison Farm indicating that the hours provided for the Prison Medical Officer were insufficient. 211 Dr Beadle advises that most administrative work of the Prison Medical Officer, including writing of policies and procedures, inmate reports, submissions to the Department of Health and Human Services and various recent inquiries is performed outside of work hours. He said that this had involved at least 5 hours a week over the last 6 years, and about 10 hours a week over the past 4 months but that the provision of an extra weekly administrative session (from mid February 2000) for two months has eased the burden of work undertaken in private time and led to 169 developments in a range of areas. Some of these have been in the planning and policy area as detailed in his response. 212 Dr Falconer’s report, page 25. Dr Falconer referred to the model currently in place for the Launceston Remand Centre as also being applicable for Hayes inmates. 213 See Western Australian Ombudsman Report (5.61) Health Services Policy 3.8. With regard to persons detained under mental health orders in UK see the visiting Commissioners model referred to later in this report. 214 In Tasmania medical practitioner are regulated by the Medical Council established under the Medical Practitioners Registration Act 1996. 215 Dr Jager regarded Dr Beadle as the overall coordinator of medical services and as the clinical responsible person for the prison health service. This was in addition to the administrative responsible person within the respective Departments, who would liaise with the Prison Medical Officer and other service providers, to ensure that services were being provided adequately. 216 Dr Jager made a written submission regarding his role as a consultant. His view is that it is Dr Beadle’s role to review medications (Efexor) prescribed for non psychiatric reasons and he states “I am unable to take on the management including review of non physical problems in the Prison in addition to my current workload”. The inmate in this instance had a long history of depressive illness. Dr Jager’s opinion was that “He may have had a depressive disorder but is now settled”. 217 See Dr Jager’s letter to Dr Beadle dated 20th July 1999 where he acknowledged that he had been mistaken in his belief that an inmate had been admitted to the hospital under Dr Beadle’s authority then referred to Dr Jager to take over the management. Dr Jager raised issues concerning medication prescribed by a Launceston psychiatrist to the patient and “Patients being dispensed medication without the expressed authority of either myself, yourself or the after hours Prison service"” 218 Dr Falconer said (28th March 2000) that: “Generally speaking, I think that there would be an expectation that visiting medical officers would see stable mental health clients on occasions and perhaps extend scripts for that group. However, there are some valid reasons for Johns' stance. Risdon is a reception prison, and thus workload pressures are higher than in a placement prison, due to the requirements of assessing prisoners at the time of reception. Also, I understand his reluctance to simply extend a script which has been commenced by another practitioner as professional concerns about this can arise, particularly if there is a degree of lack of familiarity with the patient. John is also correct that the major burden of delivery of primary health care within a prison environment falls to nursing staff and that optimal functioning of that group of staff will result in more efficient use of the VMO time. The workload issues that John raises are also reasonable, especially when you consider the environmental health role and statewide overview that John is keen to provide. Dr Jager himself advises that the position of VMO needs to be a full time one.” 219 Dr O’Brien and Associate Professor Farrell considered Dr Jager’s transcripts and wrote that: “We are a little concerned with the implication in Dr Jager’s transcript that the roles and responsibilities of health professionals can be so clearly defined. While each discipline brings a unique perspective and expertise it is also the case that, increasingly, roles and responsibilities of the various professional health disciplines overlap. For example, an increasing number of mental health nurses have training in cognitive-behaviour therapy, which in the past was the sole preserve of psychologists. Further, what is taken as appropriate role engagements by health professionals will vary from one jurisdiction to another. Therefore, discussions on service delivery models and skill mix need to take into consideration the changing and overlapping roles of health care professionals and the present skills and/or potential of local staff. These discussions should involve all relevant health care staff. 220 The responsibility for the prescription of Clozapine and the amount and rate of increase to the forensic patient, Laurence Santos, would be a case in point. 221 One patient admitted in July, had been prescribed medication over the weekend on the authority of a psychiatrist in Launceston, and his admission had not been brought to the attention of the consultant psychiatrist when he visited the Prison Hospital. Nursing staff had omitted to make an urgent referral.

FORENSIC MENTAL HEALTH SERVICES

222 The Report of the National Inquiry into the Human Rights of People with Mental Illness (Burdekin Inquiry). 223 The national strategy for forensic health services outlined the following guiding principles: · Standards and conditions of care and treatment for individuals with a mental disorder in the forensic system will be equal to those provided in the community to mentally disordered persons and delivered in accordance with international and national covenants relating to forensic mental health. · The mentally disordered individual in need of inpatient treatment will receive that care in a specialised forensic mental health facility independent of the prison system, irrespective of whether they are currently serving a prison sentence. Forensic mental health facilities will not be run by correctional services or 170

located within the geographic boundary of a prison. If a prisoner requires hospitalisation for a mental disorder they will be transferred from a prison to a forensic mental health facility. · Forensic mental health services, both within correctional facilities and the community, will be staffed by mental health personnel employed by health departments, not correctional agencies. · Treatment and care will be provided in an appropriately restrictive environment compatible with: The legitimate needs of the community to be protected from unacceptable levels of risk from dangerous or seriously disruptive behaviour. The protection of the individual patient from unacceptable risks of serious damage to self or serious deterioration. · Courts, correctional agencies, releasing authorities and general mental health services will have access to forensic mental health expertise to enable appropriate decisions to be made regarding the management of mentally ill offenders. · Care and containment will be provided in a cost effective and efficient manner. 224 From the forensic perspective, identified by participants at the 1996 workshop which recommended the preparation of a national strategy of forensic mental health, these people do not fall within the ambit of FMHS, yet all jurisdictions in 1996 reported attempts by general health services to have these clients accepted into forensic programs, possibly because of the lack of available appropriate alternative services. 225 Discussion Paper "Towards a National Approach to Forensic Mental Health” was prepared for the AHMAC National Mental Health Working Group By 1999, all jurisdictions expressed a willingness to participate in discussions to resolve key issues facing the delivery of forensic services, including “the need to reconsider whether the forensic mental health target group should include - sex offenders and personality disordered offenders and people with serious mental illness in mainstream mental health who are a danger to their carers or the community”. (page 30). 226 Discussion Paper "Towards a National Approach to Forensic Mental Health” prepared for the AHMAC National Mental Health Working Group. December 1999. 227 Second National Mental Health Plan (July 1998) 228 That is a session every morning and an on-call service. Mr de Bomford regarded the then current level of service of one morning session for inpatients, and one afternoon session for outpatients as insufficient to get through the numbers that are requesting service. Mr de Bomford acknowledged that there was an after hours “on call service” for urgent referrals, and that Dr Jager came in as required including on some weekends. Dr Jager states that he routinely attended the Prison Hospital every weekend to attend inpatients. 229 See Longer Term Recommendations 1, 2, & 3. 230 There was criticism of the perceived restriction of FMHS to persons with mental disorders and the exclusion of those with severe personality disorders. 231 Discussion Paper “Towards a National Approach to Forensic Mental Health Services" 232 Dr O’Brien "Prison Health Issues" in Current Australian Trends in Corrections, ed. D. Biles, Federation Press; Sydney. Ch 20 p152. 233 A new 8 bed intensive care secure psychiatric unit is to open on the RHH campus in late 2001. The new unit will complement the 35 bed acute psychiatric care unit which already operates within the Hospital. This will provide an intensive service for acutely ill persons, including prisoners, with a mental illness, however it will not be able to provide the long term accommodation required of a Forensic Psychiatric Unit. 234 Guideline 5.67 “Prisoners who require specialist treatment should be transferred to specialist institutions or to community hospitals”. 235 As such it was contrary to the principles stated in the National Mental Health strategy. 236 The initial DHHS Royal Derwent Hospital proposal was that high security forensic and non forensic mental health patients (who were considered a danger to themselves and others) would be retained at the “special facility” at Risdon Prison Hospital, while medium and low security patients would be accommodated in the purpose built Unit at the RDH. To forestall anticipated public criticism the Unit at RDH was to consist of two separate units, one for forensic mental health patients and the other for non forensic mental health patients. 237 I accept the DHHS’s submission that FPU within the restricted environment of an inner city hospital might be quite inappropriate and also that a stand alone unit, separate from any health facility, might experience greater difficulties than one associated with other mental health services. I accept that this issue needs further exploration as part of the development of a model of care for FMHS in Tasmania. Even if it was practical to accommodate another 8 bed unit on the RHH site (which it is not, due to space restrictions) DHHS submits that this environment is far from ideal for long term accommodation. Their view is that it is appropriate that acutely ill forensic mental health patients be treated in the secure psychiatric unit being planned for the RHH site but this is a short term stay unit and once stabilised the patients need to be returned to the more open environment of a long stay unit 238 It was submitted that in 1999 the Government’s Funding Review identified a potential shortfall of $65m in 1998/99 which was reduced to $33m by reduced expenditure. The allocation of $44m in 1999/2000 left unfunded 171 about $8m which was found by removing 150 positions from administration in the period March to June 1999. The DHHS submit that in this environment there was no capacity to allocate extra resources for development, including a FPU. 239 See: Memorandum of Agreement Between the Director of Corrective Services, on behalf of the Secretary of the Law Department, and the Medical Commissioner, Mental Health Services Commission, 1988. (p.1). The Agreement provided that the Senior Psychologist to transfer the Law Department psychologist position to Mental Health on the understanding that a second psychologist position would also be based at the Prison Hospital. Dr Fred Smith was appointed as Senior Psychologist at the Prison Hospital and the Agreement stipulated that the Senior position would be based at the Prison Hospital with: "....not less than 80% of his working time devoted to the delivery of services". The second psychologist also to be based at the Special Institution with not less than 60% of his working time devoted to the delivery of services....". 240 Clause 5 of the 1988 Agreement includes psychological services for inmates with severe personality disorders and self harming behaviour and formed part of the clientele within the parameters of the FMHS at the Prison. 241 Forensic Mental Health Services: Role and Scope of the Service: Interim Policy Paper (Draft) September 1998, DHHS, Hobart. The policy directions and principles in the strategic plan and in the Discussion Paper prepared by Victoria Rigney, the Senior Policy Consultant, DHHS, are consistent with those in the draft National Mental Health Strategy and provided the basis for the development of a new model of service delivery by the Department of Health and Human Services. 242 See report of the Steering Committee for the Review of Commonwealth/State Service Provision. Table 9A.53 page 816 The Average daily prison population increased from 272 in 1996-97 to 332 in 1998-99. This in turn has increased the demand on all services to the prison and prison hospital, including the FMHS. 243 DHHS: FMHS Interim Policy paper: Role and Scope of the Service, 1998. p.10. 244 Dr Lopes retired in February 1999 and at the beginning of February his replacement, Dr Alan Jager arrived. Dr von Bamberger retired and Dr McCarthy was appointed Senior Psychologist. The part-time Registrar, Dr Benjamin, had decided to work full-time in the Gavitt House Community team in January 1999 and the Social Worker, Lucia Werner, was due to retire in April 1999. The second psychologist position, vacant since October 1998, was advertised in early 1999. 245 Some services, such as alcohol and drug rehabilitation had altered but inmates with severe personality disorders and self harming behaviour were still regarded as part of the FMHS clientele. With some minor changes FMHS had operated on this basis for over a decade until Dr Jager’s arrival in 1999. 246 FMHS Interim Policy Paper: Role and Scope of the Service, 1998 p. 5. The FMHS provided to inmates approximated the level of services provided to clients of the Community Mental Health Centres. This was in accordance with a principle that "the right to appropriate health care should not be affected by the legal status of the individual”. 247 Dr Jager was administratively responsible to Ms Melanie Allen, the Southern Manager of Mental Health Services who was responsible to the State Manager Mental Health Services, who was Mrs Mary Blackwood, and subsequently Ms Wendy Quinn. Ms Quinn was responsible to the Director of Community and Rural Health (Ms Kim Boyer), who in turn was responsible the Secretary of the DHHS (Mr John Ramsay). 248 Dr Jager meet with Melanie Allen, the then Acting Southern Manager, Mental Health and Mary Blackwood on 2nd February 1999 prior to his commencement on the 8th February and had a plan for the service. From Dr Jager’s perspective his review of FMHS involved a new model for service delivery, changes to the composition of the FMHS team, a defining of who constituted FMHS clientele, a reduction in hours at the prison, altered duties, and an administrative relocation of the service from Risdon to the Glenorchy Health Centre. The DHHS state that the “review” into Forensic Mental Health Services, facsimiled to Melanie Allen and Mary Blackwood on 22 February 1999 (facsimiled by Dr Jager 3 days after he formally took over the service) describes current arrangements but made no mention of relocation of the base of the service to Glenorchy. They state that Dr Jager identified a number of problems and discussed his immediate requirements including reducing services to the Royal Derwent Hospital, reducing reports to the Parole Board, and introducing Telehealth. 249 The second psychologists position was reduced to a half time position based at Glenorchy (with only one session at the prison), 250 The consultant’s reported in February 2000. Their brief was to provide information and advice regarding clinical and administration matters pertaining to the relocation of the FMHS team from the Prison Hospital to a community setting, and to comment of the management of this change in service focus and its impact on service provision at the prison hospital. 251 On 8th February 1999, the day Dr Jager commenced he sent a facsimile to Melanie Allen who agreed to his request to halt to process for the appointment of a second psychologist. On 18th February written objections to this decision were made to the DHHS by Dr McCarthy, the Senior Psychologist (who further wrote on the 25th) and Nils Cochrane. This decision occurred at a time when Dr McCarthy’s workload was considerable. Dr McCarthy sought an appointment with Ms Allen to review this decision. This appointment was apparently initially granted, then 172 cancelled by Dr McCarthy after Dr Jager had spoken to her. There was further opposition from staff and the Health and Community Services Union (HACSU) and further communications, including communications with the DJIR. It appears that on the 23rd Ms Allen suggested a meeting between the DHHS and DJIR to discuss the psychology position. This meeting did not occur. 252 Mr Richards, Deputy Secretary DJIR (Corrective Services) on 13th April 1999 wrote supporting the proposal to “redirect resources saved through the reduction of the second psychologist position, to engage sessional services in the North and North West” and welcomed “this proposal to strengthen community based services generally”. Processes were put in place by the Southern Regional Manager to arrange a meeting of all stakeholders to discuss the implications of this proposal, but before it could occur, Dr Jager arranged a meeting between himself and Mr Richards where approval was given for the change. 253 In response to the facsimile of Ms Allen dated 26th March requesting that he draft a response to the HACSU concerns “regarding the rational used to assess and determine that the position be reduced to part time” and the “workload”. On 29 March 1999, Dr Jager wrote to Ms Melanie Allen, the Southern Manager of Mental Health Services, outlining his rationale for the reduction in the psychologist position saying that this was in the context of his initial review of how FMHS could fulfill its mandate to provide a state-wide service to its target population. He claimed that that there were inefficiencies, in that the one of the psychologists spent a significant time (50%) either on the road in the north and north west of the State, on other "off campus" activities, and on non clinical tasks of a routine nature. 254 The Agreement provided that the Senior Psychologist devote not less than eighty % of work time and the second psychologist devote not less than sixty % of work time to the delivery of services at the “special institution” and be located at the Risdon Prison Hospital. 255 These altered tasks included limiting the role and involvement of the senior psychologist with the Classifications Committee and Parole Board. This was not discussed with Mr Salter, the Chair of the Classifications Committee nor was Dr McCarthy given a proper opportunity to put forward her views regarding both the decision to abolish then make the second psychologist position .05 FTE or to alter her tasks. 256 Dr Jager said that the drug and alcohol service had been outsourced and the FMHS psychologist was no longer providing this service. Further that vocational services were either defunct or occurring within programs, and a social worker and a community psychiatric nurse had been employed by FMHS, in part to facilitate the transmission inmates back into the community. 257 Mr Richards letter to Dr Jager confirming the altered arrangement, of copy of which went to Mary Blackwood and Melanie Allen, clearly indicates that the altered arrangement was intended to strengthen community based assessment and treatment services in the north of the State. This change of emphasis, from the prison to the community, was to be achieved by a variation of the psychologist employment from two full time positions to a total of 1.5 FTE’s. 258 See the 1988 Agreement "The provision of professional advice and consultation services to the Prison Classification Committee following appropriate inmate assessment procedures” ( p.2, 6). 259 In April, 1993 when the Hon. F M Neasey reported into the system of classification of prisoners in Tasmania, the then Standing Order, A32 provided that the membership of the Committee include a psychologist located at the Prison Hospital, who was required to either be present or provide a written report. He made no recommendations to alter this. 260 See Mr Richard’s letter of 13th April 1999 to Dr Jager. Mr Richards accepted Dr Jager’s contention that the routine attendance of a psychologist at Classification Committee meetings, and the provision of routine reports to the Parole Board, was not required and that their was scope for reviewing the basis on which assessments are undertaken. Mr Richards proposed the early development of mutually agreed protocols outlining the circumstances in which the attendance of the psychologist at Classification Meetings would be required, but indicated that the continuing discussions for the development of the protocols did not subsequently occur to the extent that it should have. 261 It has been said that: "Classification is essential to the operation of an orderly and safe prison. It is a prerequisite for the rational allocation of whatever program opportunities exist within the institution. It enables the institution to gauge the proper custody level of an inmate, to identify the inmate's educational, vocational, and psychological needs, and to separate non-violent inmates from the more predatory...Classification is also indispensable for any coherent future planning". Palmigiano v Garrahy 443F.Supp. 956,965 in U.S. DJIR. 262 On 1st April Ms Blackwood, State Manager, Mental Health Services, responded to the Union incorporating the views of Ms Allen and Dr Jager, referring to the mandate for a State wide service and the decision to replace half the second psychologist position with a sessional psychiatrist in the North and North West and increase the use of Telehealth. There was a reference to a significant proportion of the Psychologist’s time being spent in performing “non clinical tasks of a routine nature”. On 16th April HACSU in response requested further information and was facsimiled by Ms Allen to Dr Jager on 21st April for his draft response for Ms Blackwood’s signature. The explanation given in the draft response of the routine, non-clinical tasks referred to, was the psychologist reporting 173 to the Parole Board and attendance at Classification Committee. 263 See memo from Ms Allen to Dr RV Parton dated 1st February 1999 regarding the variation to the contract of Mr Richard Benjamin agreeing that he work solely in the community and cease to work at Forensic Services. The memo proposed a meeting with Dr Jager when he commenced to discuss ongoing Forensic medical needs and the possibly provision of a Registrar on rotation, part time or sessional. 264 See Dr Jager's memorandum to Mrs. Mary Blackwood, dated 26/3/99. 265 Dr Jager perceived that support to the FMHS had been reduced at the time he took up his appointment by the loss of the position of Registrar following the agreed change to Dr Benjamin’s contract to enable him to work solely in the community and cease work at Forensic Services. Dr Jager stated in his memo (26/3/99) that he had given some indications of his staffing requirements (to Barbara Shaw) but considered that the staffing levels fell short of these requirements. The inference from the memo is that he had an expectation that positions would be funded, and staffing requirements met, and that under funding and inadequate staffing levels were a factor in what he perceived to be the shortcomings of the service and the development of an optimal model of care. 266 See memorandum to Mrs. Mary Blackwood (26/3/99) 267 Dr Jager said: “There is no doubt that there was a reduction in hours of attendance there, and that was also doubly emphasised by the fact that we lost the registrar a week before I started, so there is no medical practitioner available given that we were down from 1.5 medical practitioners to .8 medical practitioner, it was inevitable that there would be a reduction of my time.” 268 The letter of 24th March 1999 from RHH Department of Psychological Medicine following the Community and Hospital Consultants Meeting was signed by Dr McCarthy, Secretary for Dr Parton and unanimously supported by Dr Husain, Dr Przybyszewska, Dr Ryan, Professor Pridmore, Dr Jager, Dr Kirkby, Dr Ashley, Dr Benjamin & Dr McArthur. 269 See letter of 24th March to Ms Blackwood. 270 See Ms Allen’s memo to Dr Jager dated 8th June 1999 agreeing to fund the session at RDH for ex forensic clients and the provision of second opinions through mental health providing that Dr Jager “providing that you are able to pull together enough funding for a registrar using the 2 sessions nominally funded by the reduction in the forensic psychologist, money from the altered arrangement with DPM and some funding from Northern Mental Health. 271 See the letter of Professor Kirkby (Psychiatry University of Tasmania) dated 26th July, to Ms Boyer, Director of Community and Rural Health indicating that the Registrar Training Program Committee support for a registrar position in Forensic Psychiatry was predicated on the assumption that this position would be funded “additional to the current training budget”. See also Dr Jager’s letter to Ms Wendy Quinn, the State Manager, Mental Health on 10/11/99) 272 On 7th April Dr Jager forwarded to Ms Allen the staffing authority for the sessional regional psychiatrist. At this date the reduction of the second psychologist had been agreed, the funds had been redirected in part to fund the proposed regional psychiatrist positions and following representations by Dr Jager and by the Community and Hospital consultants in March, by 8th June, in part to fund the registrar’s position. 273 The Forensic nurse was previously located outside the prison and Dr McCarthy remained based at the prison. 274 Business Support Officer’s memo of 22 April which informs Dr Jager that provided he agree to certain conditions, the Centre Committee supported the proposed move of FMHS to the Centre. 275 Ms Allen apparently had raised her concerns about the impact of such a move and Dr Jager was thought to be investigating these. Instead he negotiated directly with other areas of the Department and moved, letting senior managers know later. 276 The Department’s explanation as to how the relocation proceeded to be implemented without authorisation, was that Dr Jager put the proposal to a relatively junior clerical support officer at the Glenorchy Health Centre who sent the proposal to the Glenorchy Community Health Centre site management committee, and at each stage it was assumed that approval had been given by senior Mental Health management and appropriate authorisation had been acquired from within Mental Health Services. The Department state that the Centre Committee supported the proposal, not having been given any information which would enable them to understand the broader policy implications or that there had been concerns of any sort expressed by his manager. 277 The DHHS say that this exchange of correspondence cannot be relied on as evidence that the senior managers were aware of the impending move or approved it. 278 Dr Jager asserts that it is inaccurate to say that the FMHS relocated as prior to May 1999 it operated from HMP, Glenorchy Health Centre and previously Campbell House. He states that only the administrative base moved in conjunction with a reallocation of staff time between the two locations. 279 Dr Beadle in April 2000 again referred to delays in assessment by FMHS. 280 There was criticism about the inadequate and crowded facilities at Glenorchy and records indicate that Dr Assenheimer was also concerned that there was not a room available for her Thursday afternoon session. 281 Dr Jager, challenged references in the draft report to the Director of Nursing Mr de Bomford, not being an active participant in the process of change. Dr Jager concedes that the prison hospital staff were not widely consulted, and 174 that the Director of Nursing’s passive acceptance ought not to have been regarded as support for the proposal. 282 It appeared that the Director of Nursing had been advised but failed to adequately communicate the sessional arrangements to nursing staff. 283 Dr Jager asserts that he advised the Director of Nursing of the referral process he wanted implemented and that it stayed on the conference room whiteboard at the prison for some 6 months, and he had specified the process in memoranda. As indicated elsewhere in this report, it is the responsibility of the Director of Nursing to promulgate and ensure nursing staff are aware of procedures and protocols. 284 Dr O'Brien and Associate Professor Farrell refer to Dr Jager's attempt to make the referral system more streamlined, comprehensively understood and applied, and to improve the quality of record keeping of the forensic mental health files. (p.15) However they also refer to the breakdown in the communication of clinical information to relevant staff and strained relationships between Dr Jager, staff at the hospital and those in the FMHS team. 285 In terms of his attendance, Dr Jager acknowledged that there had been a reduction in his hours at the prison but said that his clinics at the prison were structured so that he would be at the prison on a regular basis, twice a week with a floating time period to come in at other times on particular days as needed, and to the HRC when that commenced. In addition he had a conjoint university appointment one day a week, approved by the DHHS, which meant that, unlike Dr Lopes his was a 0.8FTE allocation of hours to the Prison. In Dr Jager’s view all those things compounded to bring about the perception that there had been a significant reduction in psychiatric services at the prison. The loss of the position of Registrar had also reduced the medical practitioners from 1.5 EFT to a .8 position. An issue is the extent to which this view was in accord with the policy directions of the Department. 286 September 1998 [Total clinical count 5.2 or which 4.1 at HMP and 1.1 community]; February 1999 [Total 4.8 3.5 HMP with 1.0 position vacant at HMP and 1.3 community]; July 1999 [Total 4.6, 1.6 HMP, 2.8 community including .3 vacant in community]; January 2000 [2.2 HMP, 2.2 Community including .3 vacant in the community]. 287 Memo dated 5th July to DON, Ms Trajos, Ms Allen, Dr Sparrow, A/State Manager Mental Health Services, Mr Richards. 288 See DHHS “Commentary on Forensic MHS Statistics for Ombudsman’s Report” 289 Advice from DHHS. The part time Registrar’s position was unfunded for 1999 and the second psychologist position was initially left vacant then provided on a part time basis. 290 Forensic Outpatients Service conducts a clinic on Thursday mornings at the Hobart Remand Centre. Patients are seen on referral to the FMHS from a designated health professional, and the referrals triaged to an appropriate team member. 291 There have been some problems with equipment compatibility but the concept is sound. 292 Some of these issues are referred to in the consultant’s report. (See Dr O’Brien & Farrell at page 11). 293 Dr O’Brien and Associate Professor Farrell [p.4, p.13]. 294 1999 Discussion Paper "Towards a National Approach to Forensic Mental Health” prepared for the AHMAC National Mental Health Working Group (page 30) 295 The Forensic Planning Day held on 17th October 1997, attended by key personnel in the DHHS, the ‘core business’ and the defined clientele were broader than that subsequently encompassed by Dr Jager in 1999 and it is clear from other policy documentation that DHHS had a broader view of who constitute the FMHS “target population”. 296 By Dr McCarthy and others about the alleged restriction of the target group, both in the context of issues such as the reduction in psychological services and the change in emphasis and resource reallocation (to regional psychiatrists and a medical Registrar) at the expense of psychologist and social work positions and hours at the Risdon Prison. 297 See Dr Lopes letter dated 17th November 1992 to Ms Blackwood regarding the need for a community outpatient clinic to follow up patients released from the Risdon Prison Hospital, to run community programs and conduct home visits. 298 Memo by Mr Marris dated 20th November 1995 forwarded to State Manager Community Corrections and Dr Lopes for comment on draft letter to Ms Blackwood. While supporting a forensic psychiatric service in the North and North West, the importance of linking the service to the Prison Hospital is referred to and a preference stated for a psychologist rather than a psychiatric nurse in the event that both could not be provided. 299 See Forensic Planning Day held on 17th October 1997, page 2, definition of core business and clients of the Forensic Service. 300 He objects to that terminology and cited the range of diagnostic categories seen by the service during a three month period to illustrate that FMHS covers a range of clientele. These categories were “Schizophrenic disorders - 9; affective disorders - 9; other psychoses - 1; neurotic disorders - 9; personality disorders - 17; sexual deviation - 1; alcohol dependent syndrome - 12; non-dependent abuse of drugs - 10; incaprecis - 1; acute stress reaction - 9; adjustment reaction - 5; depressive disorder - 5; disturbance of conduct 24; disturbance of emotions, specific to childhood and adolescence - 3: mild mental retardation - 3; and others of very small numbers” to refute that the service in practice restricted its acceptance to non-personality disordered individuals. He stated that unless a person 175 with a personality disorder was “in crisis”, he did not consider that they should fall within the target population. 301 The Manager of the DHHS Mental Health Information and Evaluation Unit (MHIEU) has advised that it is, and may be found in ICD-9-CM codes 312.0 – 312.9 and further stated that clinical coding is a specialty discipline, which the MHIEU currently perform in-house. 302 1999 Discussion Paper Towards a National Approach to Forensic Mental Health (page 30). (See also consultant’s reports Dr O’Brien p.12; Dr Falconer p 14) 303 Dr O’Brien and Associate Professor Farrell, see report, page 12. 304 Page 30 305 The Burdekin Report also referred to the necessity of providing appropriate services to prisoners with personality disorders. 306 The DHHS expressed a view that Dr McCarthy’s more inclusive concept is more in line with the Second National Mental Health Strategy, and contemporary developments in mental health. 307 About the time of the deaths of Messrs. Douglas, Holmes and Newman, Dr Jager forwarded a memo to the Director of Nursing, stating that the service extended to those “in crisis”. I accept that there may be differing interpretations of what constitutes a person “in crisis” both within and between different disciplines. From the clinical perspective, it may well be that a person from a psychology discipline may tend to place broader parameters on what constitutes “crises” than a person from a psychiatric discipline. The assessment of a person “in crisis” is a matter of professional judgment, however, this can also affect access to the FMHS. 308 Dr McCarthy in her written submission and when interviewed, expressed a concern about what she perceived as a withdrawal of services from the hospital coupled with an administrative direction from Dr Jager that she should in future concentrate on “core” business, that is Axis I disorders. 309 I am prepared to accept that Dr McCarthy’s professional interpretation as a psychologist of what constitutes “a continuing crisis” may be quite astute, and by having a different or broader interpretation of what behaviour is indicative of distress, she may have met a service need in a group otherwise not defined as coming within the parameters of FMHS, or who may have been discharged at an earlier stage. 310 Dr McCarthy remained located at the prison hospital and there was considerable support for her amongst hospital staff. Dr Beadle considered that some of the comments which were made in relation to her were “rather unfair and inaccurate.” He suggested a reason underlying Dr McCarthy remaining at the prison was that she saw her primary responsibility as meeting the sometimes acute and immediate mental care health needs of the prison population and to aid the other member of the health service in the provision of overall care to this community. He commented that he was “fully supportive of Doctor McCarthy in her professional functioning” and for the nearly 7 years he had worked at the prison he could say quite clearly “that she has provided an excellent degree of care and standard of care to inmates. She has worked with the prison medical service in a very professional manner.” No information presented to the inquiry would lead me to hold a contrary view. 311 Dr Falconer commented that, given Dr Jager’s present acceptance of persons who may be “in crisis” and his definition of what could constitute prisoners “in crisis”, this group may prove less a source of concern in terms of unmet service needs than previously appeared to be the case. 312 Dr Lopes had also sought to ensure that the referral system operated effectively. See Dr Lopes memo to Mr Storr State Manager Community Corrections dated 7th April 1997; and to Mr Leary, Program Manager Mental Health dated 30th January 1996, the later which sought to preserve “consumer self-referral” and expressed a concern that the nexus and “balance” between Forensic Psychiatry and those within the criminal justice system not be unnecessarily disordered. 313 Memoranda drafted by Dr Jager re sessional arrangements (12/11/99 Remand Centre, 8/4/99 OP Thursdays, 8/4/99 Thursday OP Prison, 26/2/99, 1/4/99 referrals). 314 Referrals are sent to the multi-disciplinary FMHS team at Glenorchy and discussed at the Monday intake meeting. Referrals were to be dealt with at the Prison on Monday and the Community on Tuesday, whereas urgent and suicide assessment referrals were to be dealt with as they came in. Urgent matters are meant to be on an "on call" basis. The protocol suggests that urgent phone referrals are to be responded to within 24 hours, but it appears that if a matter is not deemed urgent, then there is only one intake a week. A referral was not required for ongoing treatment unless an earlier appointment was considered necessary. 315 The CNC Psych said that on occasions a request had been made but Dr Jager had not come or could not be contacted. Dr Jager refutes this. 316 Dr McCarthy said that she was instructed by Dr Jager that she could not down grade a category but that this instruction was subsequently revoked. Dr Jager did not dispute that this might have occurred, but said he had no recollection of the event. Dr Jager says that suicidal observation categories are primarily regarded as a psychological role and he is available for a second opinion if required. A question had apparently arisen in a previous coronial inquiry and Mr Balmer had alerted Dr Jager that this issues had arisen in past coronial inquiries. As this raises issues of clinical and professional responsibilities, as to who undertakes assessments, at what level and in what circumstances Dr Jager, as Director of 176

Forensic Services, would be responsible for issuing appropriate directions and protocols to clarify this issue. 317 Dr Beadle was also critical that inmates from Hayes Prison were reviewed at the Glenorchy facility when these inmates could be seen at the Risdon Outpatients without the need to provide additional security staff. A comment was also made by a member of the FMHS team that some inmates were humiliated by being escorted into a public place in a prison uniform. 318 See Consultation Request/Treatment Record re: Inmate R.S dated 5th October 1999 and Dr Jager’s letter to Dr Beadle dated 1st November 1999. 319 “I was, of course, in a state of great shock, and I couldn't believe that I had been convicted. I am also a person who, without being pretentious about it, lives within a world of ideas and with books and I found it impossible to adjust to the noise of the television which was going incessantly, the fact that it was such an artificial environment, it was impossible to get away from other inmates, some of whom area treating me very badly indeed. And I was sometimes concerned about my safety, I had to put up with a lot of nastiness. But that is the nature of the prison culture, I was expecting that. I had received an interview from - the following day - from the psychologist, Dr. Jerry von Bamburger, and he was very pleasant and gave me some advice about how to manage myself and survive. Then, over the next few days, finding it very hard to deal with the pressure that was on me…. I have since discovered, from Dr Estelle McCarthy with whom I became very friendly, that the forensic staff never received a request from me to see any of them. Now, I think that is just outrageous, quite frankly, and that’s just indicative of this essential need to protect oneself, to cover ones own backside, as they would put it, and to take no real cognisance of people’s needs.” 320 See memo dated 8th October 1999 and attached “Forensic Record System review” from Ms Kalma, Statewide Client Record adviser, Hospitals and Ambulance Service to Dr Jager (copies to Ms Allen & Mr Jenkins, MHS). Dr Jager said: "Corrective Services has a medical record for each patient and the Corrective Services staff write in that. FMHS has a patient file which is separate and which Forensic Mental Health Service staff write in. Sometimes Forensic Mental Health staff also write in the Corrective Services file. The FMHS file consists of a plan manila folder, usually with loose lined pages and a mixture of reports, results, clinical notes and court correspondence in no particular order. There is no UR coding number”. 321 Review into the suicidal death of Timothy Andrew Hayes, March 1999 322 A weekly ward round evolved where Dr Jager is assisted by the liaison nurse or CNC Psych. Dr Jager also meets with the CNC Psych on Monday mornings. Dr Jager expressed some criticism that the CNC Psych was repeatedly invited to attend forensic meetings but did not do so. The CNC Psych also expressed some concern about consultation, communication and the referral system, and it seems on the balance of probabilities, that this illustrates problems associated with the change over, and proper communications rather than a disinclination by either to consult with the other. 323 Dr Jager said that in a year he has not had a request from Corrections staff to examine the FMHS notes. 324 Dr Beadle regarded it as of utmost importance that the doctors providing overall management of patients provide adequate documentation for the nursing staff to enable them to better implement the various parts of the management plan for inmates with health problems. Dr Beadle said that: “Following a verbal request by the Prison Medical Officer, Dr Jager has provided a notation on the Health Summary Sheet of the inmate file when a definitive psychiatric diagnosis is made. It would be preferable for a notation to be made in the case files after each patient has been seen. This is a more important issue for the hospital inpatient, where management of the inmate is dependent on accurate comment from the doctor. 325 The liaison nurse, after consultations with Dr Jager, makes entries in the prison medical file. Dr Beadle was concerned about notations being written by someone other than the person who is prescribing a particular course of management. The Director of Nursing should clarify this practice with the Nursing Board of Tasmania. 326 Dr Jager says that there is documentation indicating that he did consult with members of the FMHS team and DHHS. It is clear from the response of Ms Blackwood to HACSU, with input from Ms Allen and Dr Jager, that the DHHS were aware that the reduction in the psychologist position would impact on matters such as the Classification Committee and Parole Board and there were communications between these personnel and Dr Jager but not adequate consultation as to the merits of the proposal. 327 This is indicated by Ms Rigney’s facsimile to Dr Jager on 2nd March summarising the matters discussed and referring to a meeting to be held on 5th March 1999. 328 The forensic service model provided for: · 1 senior psychologist position full time at prison providing range of services, some of which fulfill the Agreement made with the Justice Department in 1988; · 1 half time psychologist working at Glenorchy (-2 sessions of individual assessment and therapy per week, 2 sessions of group counselling for sex offenders, and 1 session at prison for ward rounds etc each Friday); · Psychiatric nurse position used in a state-wide triage role, based at Glenorchy, and receiving referrals from FMH stakeholders - referring as appropriate; · Sessions with consultant psychiatrists -1/2 day per week North West and North (i.e. psychiatrists in those areas 177

paid to do forensic work on a sessional basis); and · Dr Jager to provide state-wide support through telepsychiatry. 329 The action suggested on 2nd March 1999 was a meeting that Friday with Ms Blackwood, Allen, Tabor, Rigney and Dr Jager to discuss Youth Justice, Sex Offenders and Services to Justice. 330 Refer to the issues paper prepared by Ms Victoria Rigney, the Senior Policy Adviser, DHHS. The Agenda covered the service delivery model, services to the DJIR; the sex offenders program; youth justice; Telehealth and the proposed Forensic Unit at New Norfolk. 331 It is Ms Rigney’s recollection that the meeting was an introductory session to provide Dr Jager with opportunity to meet the senior managers in Mental Health and lasted no more than 10 minutes. 332 Some reference was made at that time that some of the proposals might further enhance the perception by the DJIR, that the DHHS had further reduced FMHS provided in accord with the 1988 Agreement. [Reference: Dr Jager notes from the meeting] 333 See Dr Jager’s memorandum to Ms Blackwood dated 8th April 1999. Dr Jager acknowledged the contribution of the Director of Nursing in the formulation of the paper. The proposed Forensic Psychiatry Unit would assess and treat individuals with serious mental illness who were coming through the criminal justice system. The model and service objectives are sound. 334 The copy of the paper held by the Department has many annotations indicating areas of difference between Ms Mary Blackwood and Dr Jager. Ms Blackwood’s recollection is that these were resolved at the meeting and an amended paper was to be written. This did not occur, presumably because Dr Jager views in relation to the Inpatient Unit changed when he ceased to support its location at New Norfolk. 335 See letter of Ms Blackwood to Mr Richards dated 3rd June 1998 in relation to “a number of issues which have arisen between Police, Mental Health (including Forensic Services) and the Coroner which require all parties to look at creative solutions to problems in providing services to people with difficult or aggressive behaviour”. See also FHS planning day 17th October 1997 definition of core business and clientele. 336 See memo dated 8th October 1992, from Ms Blackwood to Mr Hudson, Manager, Financial Resources re Medical Services: Risdon Prison which refers to Dr Lopes’ brief extending well beyond Mental Health Act residents to “those attempting suicide, and experiencing psychiatric disorder/emotional problems in prison”. 337 This planning day occurred shortly after the relocation of the service to Glenorchy on 3rd May 1999 and about a month after the dispute about the cancellation of the appointment process for the second psychologist. In view of the perceived lack of consultation, dissatisfaction the transition arrangements and the changes made, I would suggest that it was not an optimal environment in which to be discussing further changes. 338 A very consistent assertion of many of those interviewed is that those with personality disorders would be excluded and that the target population would be those with serious mental illnesses. Other than the redefining of the forensic target population, very few of those interviewed were critical of the development of community out patient services. The basis of their criticism was their perception that this had been done at the expense of the inpatient service at the “special institution” and Forensic Services to the Risdon prison. 339 The issue of what resources would be allocated to FMHS for clinical purposes in regional out patient clinics had been a source of concern to the previous Director of Forensic Services and was not a new issue. See Dr Lopes memorandum dated 30th January 1996 to Mr Leary, Program Manager, Mental Health (page 2) regarding the reduction of clinics from weekly to fortnightly which he contended was inadequate for certain clinical purposes. 340 Briefing for Staff. Departmental Budget and Structure. 19th April 1999 “Review of Future Funding Requirements of the DHHS”. 341 Dr Assenheimer, in her capacity as a member of the FMHS team, supported the senior psychologist, Dr Estelle McCarthy in that both were critical of the restriction of the service to severe mental disorders and believed the level of service had reduced to an unacceptable level. 342 The Department submits that one reason potentially adverse consequences were avoided was due mainly to the efforts of the psychologist, Dr McCarthy in continuing to respond to client needs. 343 Messrs Douglas, Holmes and Newman. 344 From the letters between the DHHS and HACSU on 19th March and 1st April 1999. 345 Representations for and against reducing the second psychologist position had been made to the Department and ought to have resulted in a better investigation as to what tasks would alter and what the potential impact would be. For example, Dr Jager had written to Ms Allen on 29th March 1999 regarding inefficiencies in the time spent by the psychologists either on the road in the north and north west of the State, on other "off campus" activities, and on non clinical tasks of a routine nature. An inquiry would have more precisely indicated what the impact would be. 346 See Programs Unit Rationale & Plan (June 1997) Tasmanian Corrective Services which states that they “now have one less staff member, which is effectively a twenty five % reduction since early 1996. 347 Dr Jager said that this was because inmates with personality disorders and no access to such services could deteriorated to the extent that they are in crisis, and secondly, the nursing staff have to refer these inmates to the FMHS, as there is no other appropriate professional social work staff to whom inmates can be referred. 178

348 The DHHS states that this represents 1.3% and 1.35% of the total mental health budget respectively. The decision to attempt to recruit extra psychiatric positions and the lack of success regarding this has affected expenditure levels in 99/2000 but does not mean the Department removed funds from the forensic mental health service. In 2000/2001, the allocated budget will increase due to the processes which were already underway early in 99/2000 to recruit a psychiatric registrar. With that and the additional health professional/team leader position, the budget is likely to rise to $592,627 or 1.74% of the Mental Health budget. 349 Dr O’Brien (p.19) 350 While I accept that some changes were not anticipated, the DHHS in February 1999 had received the proposal to cancel the second psychologist position and after staff and union opposition agreed in April to reduce the psychologist position to 0.5FTE. In April the relocation was discussed and was effected in May, though without their prior approval. Changes to a sessional arrangement, was inevitable given the relocation of the psychiatrist. 351 “The provision of a publicly funded forensic mental health service is a policy decision of government. The service model adopted for such a service is equally a policy decision taken by government. These decisions are usually political and accompanied by explicit or implicit decisions to provide such a service at a high level of quality within parameters that include resources available, relevant legislation, overall health and mental health policy and usually also, relevant national/international covenants and agreements around care for and rights of this patient group. The role and responsibility of the government department is to take this policy position and effectively implement and manage it, and report on performance. 352 See Ashworth Special Hospital: Report of the Committee of Inquiry 12 January 1999. Http://www.official- documents.co.uk/document/cm41/4194/ash-01a.htm 353 It was suggested that this focus on containment could be traced back to the origins of the Special Hospitals within the penal system and some argued that this overly custodial and anti-therapeutic ethos of the hospitals would not change until the Prison Officers Association, which many nurses joined, was ousted from the hospitals. 354 The MHAC is an independent body, with a statutory role to promote the rights of detained patients and to promote standards of care. Its role is visitorial rather than inspectorial and it has a limited role in relation to organisational and managerial issues. 355 Since 1995 the Commission has consisted of some 190 members and visiting members, drawn from the clinical professions, social work, lay people and the law, who contribute about 3 days a month to the Commissions activities. 356 [1.32.0] The Mental Health Review Tribunals are independent quasi-judicial bodies charged with reviewing the continued justification for the detention of detained patients. [1.31.0] The inspectorate function is primarily related to the conditions of detention. 357 Secretary of State for Health. The new NHS. London: Stationary Office, 1997 (Cm. 3807.) 358 Clinical governance and the drive for quality improvement in the new NHS in England. BMJ 1998;317:61-65 (4 July) 359 In 1989 the Special Hospitals Service Authority (SHSA) was established to better integrate the special hospitals fully into the National Health Service and to strengthen accountability by appointing General Managers within each hospital directly accountable to the Chief Executive of the SHSA. In 1996 the purchaser-provider model was introduced, the SHSA disbanded and replaced by three Special Hospital Authorities (SHA) and their purchaser, the High Security Psychiatric Services Commissioning Board, (HSPSCB) a non statutory committee which advises the Ministers through the MHS Executive. The Secretary of States responsibilities for commissioning high security psychiatric services are discharged through the NHS Executive and the services provided by three Special Hospital Authorities are commissioned and monitored through a contract process, with terms to ensure consistency with the Ministers overall direction on mental health policy. The line of accountability is by the Regional Director, supported by officials of the HSPSC team, to the Chief Executive of the SHA. 360 The Position Description provided that managerially he was responsible to the Southern Manager, Mental Health, and clinically he was autonomous. 361 Dr Jager stated that in December 1999 the DHHS with Professor Kirkby determined that part of his medical advisor role would be to assume what in Victoria would be the role of a chief psychiatrist, that is that he would bear ultimate clinical responsibility for psychiatric treatment within the State. 362 DHHS also took action to accelerate the new and already approved Mental Health structure, including the appointment of a state wide Director of Nursing for Mental Health to provide guidance for nursing staff in the Mental Health Program as well as at the RHH. I acknowledge that this position at the date of publication has been filled. 363 See memorandum Ms Quinn to Dr Jager 9th December 1999 364 See memorandum. Robyn Hopcroft to Damon Thomas re discussions with Dr O’Brien (31st January) and Associate Professor Farrell (3rd February 2001). 365 Under s.4(1) of the Health Act 1997 the Minister, by notice published in the Gazette, may declare that a specified committee established by the Secretary of the Department is an approved quality assurance committee for the purposes of this Act if satisfied that the Committees function The Minister under s.4(2)(b) needs to be satisfied that 179 that the committee's functions include the assessment and evaluation of the quality of health services provided by the State. The quality assurance committee’s function can include the review of the clinical practices or clinical competence of persons providing those services. 366 See Dr Schneiders letter to Dr Sale (undated) relating to arrangements for January 2000. 367 Email to Ms Quinn suggesting regular weekly meetings (2 psychiatrists are nominated). At the same date there were discussions between the then Ombudsman, the 2 FMHS consultants and Mr Ramsay regarding their investigations as at 21st of December 1999 which referred to clinical issues and whether at that date their investigations warranted any further action. See letter of Dr Thomas to Mr Ramsay dated 21st of December 1999. 368 The Department indicate that it is erroneous to infer that senior management is in some way responsible for ensuring that Dr Jager consulted with his staff, with Dr Beadle and Prison Hospital staff. They state that it was his responsibility, as Director, to do this and part of what would normally be expected of any manager. These were after all people he met with on a very regular basis as part of his everyday work. While I accept that Dr Jager had this responsibility, I also am of the view that senior management in the Department had a responsibility to ensure that such consultation occurred. 369 Dr O’Brien and Associate Professor Farrell Report (p19, 20). 370 The chronology provided by the Department records that meetings occurred on a regular basis with Melanie Allen, Mary Blackwood, Kim Boyer and on at least one occasion Tony Ferrall, Director of Finance for the Department. Ms Boyer, letter dated 3rd May 2001, also provides a chronicle of those with whom Dr Jager met and an indication of the frequency of meetings. 371 Dr Jager states that the Department did absolutely nothing to inform him about complaints from Sandra Barwick on 20th October 1999 about certain clinical matters and I only became aware that such a complaint existed in the middle of the coronial enquiries. 372 Dr Jager reports only one instance prior to December 1999 where he was guided in his interactions with colleagues, and that was an issues surrounding complaints that three staff members made to him about Sandra Barwick. He states that he discussed this in detail with Melanie Allen and sought her assistance in relation to the appropriate disciplinary process and reports that he also had some discussions with the human resources person, Michelle Hunniford. 373 Made by Dr McCarthy and others but complaints made to EEO officers and not made as formal complaints were not referred to managers. 374 By Dr Sale, Dr Lopes and by Forensicare in Melbourne.

THE MANAGEMENT OF PERSONALITY DISORDERS

375 See Directors Standing Order NO H1 1st December 1985. 376 The present and former Director of Nursing confirmed that this was a long standing practice and they had adopted a practice that the easiest way is to simply accept the person, have them assessed the next day and then discharge them. 377 Dr O’Brien and Assoc. Prof. Farrell. Report [page 14]. 378 I accept that in some circumstances there may be an admission and discharge without review particularly in the area of behavioural management. 379 See Dr Jager’s letter dated 20th October to DON, copies to Dr Beadle and Mr Dodd. In this letter Dr Jager states that “FMHS will continue to provide regular advice regarding the management of patients who are designated to be suicidal”. 380 One officer described an escalating situation where he sought assistance both from the hospital and prison staff to no avail. Not until an attempted assault, during which a broom handle was thrown to the inmate, was assistance given to this officer. Rather than having the capacity to avert the crisis, the tension accumulated involving others in the yard. Admitting the inmate to the prison hospital at an earlier stage is sometimes regarded as a circuit breaker. 381 It was said that because of the prison culture, people tend to get themselves into trouble or there are debts to settle, and that they look for the safest place. Some who want to get away from a Division see the Prison Hospital as a protection zone - and within the dominant prison culture, they are perceived as weak or informers. This in turn exacerbates the problem of victimisation and bullying. One nurse described the pathway from bullying in the yards, to protection in a solitary confinement punishment wing, to hospital admission: "the inmates then start to act up and threaten to slash up and they flood themselves and they do all these sorts of things so the Officers get fed up with that and the next thing you know they are down in the Hospital and they are a medical case." He described a downward spiral where the Prison Hospital might assess the inmate and decide that they are not a medical or psychiatric case, and discharge them. The inmate is sometimes then accommodated back in ‘N’ Division and the process starts again. 382 One nurse quoted an instance of an inmate who had slashed up, who he decided to put on observation overnight and have assessed in the morning. He was directed by the Operations Chief that the inmate was to be admitted on 180

CAT B and allowed to keep his clothes. The nurse felt that although this person had the authority to admit the prisoner, he didn't have the knowledge to be able to make that assessment, and should not have been able to direct him as to the treatment and management of an inmate once admitted to the hospital. See also the transcript of the CNC Psych. 383 See Hospital Admission Statistics. The average monthly bed occupancy rate was 22.6 and the hospital also accommodated on a continuing basis, patients who were mentally ill and subject to a ‘restriction order’. The hospital admission statistics indicate that in 64 admissions (11% of all admissions) the reasons for admission could not be ascertained from the records. 384 Interview with CNC Psyche at Risdon Prison Hospital. It was said that one of the favourite expressions used by custodial officers was "this person is going off". An in-house joke, was that this diagnosis could not be found in a DSM IV. Often the nurses reported that the custodial officers just say "Here's this person, he's admitted." and if they object and say "What for? He looks perfectly healthy to me." They say "It doesn't matter, he's admitted”. 385 The Unit Management system at the hospital was supported, and the Hospital staff said that they had a very good in-house working relationship with the custodial officers located at the prison hospital. A number of nurses and officers interviewed said that they were the only unit in the prison that got on well together and functioned effectively, inasmuch as they were able to make all the necessary decisions and manage their respective responsibilities. 386 1999 Prison Hospital Admissions Statistics. 387 Dr Falconer’s report (Recommendation 8) 388 Dr O’Brien and Associate Professor Farrell (LT Recommendation 5). 389 The personality disorder population was described as relatively static, with a longer average length of stay than prisoners serving a sentence, and a relatively dangerous (using the proportion of those subject to a restriction order as an indicator of dangerousness). 390 Committee of Inquiry: Ashworth Special Hospital [2.0.11] 391 These are summarised at [2.14.17] in relation to Owen Ward. Matters inquired into by the Committee in relation to Lawrence Ward included the murder of a patient, [2.4.1]; a death where the perpetrator was acquitted [2.50]; drug and alcohol abuse [2.12.16]; absconsion [2.14.8]; arson [2.14.11]; hostage taking [2.14.14]; pornographic video tapes [3.20.16]; inappropriate behaviour towards a child visiting an unrelated inmate with a suggestion that the child was “being groomed for pedophile sexual activity [3.23.42-45] 392 Other therapeutic communities within the Prison system are also referred to [1.35.4] but 393 A total of 60 places is planned in five Close Supervision Centres. 394 Received 16th February 2001. 395 The Report of the National Inquiry into the Human Rights of People with Mental Illness (Burdekin Report pp.802-3). 396 See Dr Falconer Recommendation 11. 397 Dr O’Brien and Associate Professor Farrell. Report (page 13). (See Recommendation 2). 398 Division 8 is part of the Division previously designated ‘N’ Division.

THE MANAGEMENT OF SUICIDE AND SELF-HARM IN PRISONS

399 Dalton 1999 400 Report on Government Services 2001 401 Jenkins & Booth 1998 402 “What we can learn from suicide and self injury” Richard Harding. Deaths in Custody. P212 403 Allison Liebling "Suicides in Prison" Routledge 1992 404 Professor Kevin Howells, Guy Hall and Andrew Day" The Management of Suicide and Self-harm in Prisons: Recommendations for Good Practice" Australian Psychologist November 1999 Vol. 34 Number 3 pp. 157-165 405 Liebling "Suicides in Prison" Routledge 1992 (p85). 406 Liebling "Suicides in Prison" Routledge 1992 (p85). 407 Dooley, 1990; Fletcher, Wolf & Priebe, 1995. 408 Prof. Kevin Howells, Guy Hall and Andrew Day "The Management of Suicide and Self-harm in Prisons: Recommendations for Good Practice" November 1999 Australian Psychologist Vol. 34 Number 3 pp157-165. 409 Dr Lopes, the former Director of Forensic Services, confirmed that in his experience, this function had been present in a number of self harming prisoners at the Risdon prison and was frequently given as an explanation for their self harming behaviour. 410 Suedfeld 1974, 1980. 411 Liebling "Suicides in Prison" Routledge 1992.

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412 Prof. Kevin Howells, Guy Hall and Andrew Day "The Management of Suicide and Self-harm in Prisons: Recommendations for Good Practice" November 1999 Australian Psychologist Vol. 34 Number 3 pp157-165. These risk categories were defined as: · Personal risk factors - comprising characteristics of the individual, including demographic, personality traits, and dispositions. · Contextual risk factors - which may be associated with situational stresses, such as the stress of arrest and imprisonment. (The research clearly demonstrates that self harm rates are higher within the first week of imprisonment and during remand.) · Previous self-harm - is a clear predicator of risk. Other historical risk factors, such as dependency on narcotics prior to incarceration and withdrawal effects may contribute to higher self-harm rates. Current and past psychiatric morbidity, and psychological distress in general - are higher in prisoners who self harm, but it is postulated that particular disorders are more significant than others. 413 Liebling "Suicides in Prison" Routledge 1992.(page 12) 414 Liebling "Suicides in Prison" Routledge 1992 (page 53) 415 Dr Gover concluded that in prison, the operation of "a principle analogous to that of the survival of the fittest" could be detected, "the most hardened criminals being those who are best able to endure imprisonment". The most- often imprisoned were not the most at risk. In 1911 Dr Smally, referred to the earlier age incidence in prison suicides, and hypothesised that a factor might be the "psychological instability of youth as shown by impulsive reaction to the shock of detention or of imprisonment". 416 Scott-Denoon, 1984 417 (Johnson, 1978:466). Johnson considered that his control group of crisis prone (self-destructive) inmates differed from their adult counterparts in three ways; one being that they were disproportionately prone to crises reflecting an inability to maintain self -control and composure in solitary confinement (isolation panic). He considered that: "Many youths need social support, shared activity, acceptance ..Prison is an arid human environment, presenting obstacles to adaptation and threats to self esteem. It symbolizes community rejection, closes off opportunity and stunts personal growth". 418 One submission was to the effect that this questionnaire was too general to be of much use as a tool in the predication of risk of suicide. 419 Coral Muskett conducted a review for the DJIR following the death of Timothy Andrew Hayes, a person detained under the Mental Health Act 1963. Her review and evidence in interview was considered for the purposes of this inquiry. 420 Gaol Mental Health Service Screening device involves all staff (including custodial officers) applying such assessment tools, and grading each item according to the inmates history and responses. If an inmate receives a score of 10 or above he/she is automatically referred to a mental health professional. Ms Muskett referred to the risk of suicide being 20 times more likely amongst people with schizophrenia in comparison with other psychiatric populations (with the exception of major depressive states) and cited the other suicide predictors or risk factors for people with schizophrenia. She cited research by Allebeck and others (1987) which found that many schizophrenic suicides were impulsive and consequently difficult to predict and prevent. 421 Royal Commission into Aboriginal Deaths in Custody (National Report (Volume 1) AGPS 1991). 422 Ms Muskett reported that 30kg is the breaking strain of those used to attach potential hanging anchors in the new psychiatric unit at the Royal Hobart Hospital. 423 AIC No 125. 424 Royal Commission into Aboriginal Deaths in Custody Vol. 1 p86 para 3.3.34) "What can we learn from suicide and self injury" Richard Harding. Deaths in Custody. p. 212, 425 Dr. J Reser Research Paper No. 9, p.31, p.35 426 Further that timed observation at intervals could decrease the amount of actual observation by comparison with a shared cell. 427 Health and Safety Six Monthly Audit (DJIR). Produced by R N Kellett January 2000 p. 9. 428 During the investigation this was illustrated by one inmate in the strip cell, who was frustrated by not being told when his risk classification would be reviewed, reacting by breaking the light in the observation cell. 429 Prof. Kevin Howells, Guy Hall and Andrew Day "The Management of Suicide and Self-harm in Prisons: Recommendations for Good Practice" November 1999 Australian Psychologist Vol. 34 Number 3 430 Victorian Correctional Services Task Force “Review of Suicides and Self Harm in Victorian Prison” November 1998. Chapter 6: Findings, 6.4.1-6.4.1.3, Recommendations 41-47. Also Case Management 6.4.2. Recommendations 48-51. See also Appendix 1 Introduction para 2. 431 The review by Coral Muskett was commissioned by DJIR following the death of Timothy Andrew Hayes, a person detained under the Mental Health Act 1963. 432 The incidents primarily related to the officers observations of Mr Newman [formerly Rory Jack Thompson] and related to their attempts to explain to Dr Jager the content of Mr Newman’s correspondence to his daughter, the 182 compilation and posting of his scientific papers, attempts to transfer out funds and a general deterioration in his demeanour. 433 The “Dumb Cell” was closed to light and sound and was in effect a sensory deprivation chamber. Those in solitary received a bread and water ration passed through a panel at the bottom of the inner door of the Cell. Described in Port Arthur An Historical Survey. Van Dieman’s Land. Compiled by J W Beattie 1905. 434 Investigators were advised that “H” Division currently operates as a protection from those who are not safe in “E” Division, but if and when Prison management decided that it was not economic to keep “H” Division open, then the protection prisoners were sometimes transferred back to ‘N’ Division if other areas are considered unsafe and some would be admitted to the Prison Hospital. The hospital was regarded as the last protection option. 435 The Department acknowledged that there was a need to create a different regime and a better physical separation between those accommodated in ‘N’ Division for disciplinary reasons and those in ‘N’ Division for their own protection or for behavioural management purposes. 436 This practice came about due to the overcrowding occurring in Risdon, the high number of inmates requiring protection and the needs of individual inmates who required, in effect, protection from protection. It is now practice that if an inmate is placed in Division 8 for protection it is for a short period, not exceeding 2 days whilst alternatives are looked into. A six bed unit is now open at Hobart Remand Centre for protectees and Divisions 2 and 3 at Risdon are also used for protection. Occasionally, again for short periods, usually up to 7 days, the Hospital or Hospital Annexe are used to house protection inmates whilst alternatives are sought. Since January 2001, Division 8 has had a dedicated Unit Manager attached to it. That person is present in the Division 8.00 am to 5.00 pm Monday to Friday and is responsible for the monitoring of inmates housed there. 437 The situation was described in interview as follows: "they start to attack each other… because if you have a confined yard, aggressive people, very loud, very huge body spaces, who don't want people invading. (combined with) anti-social personalities with half a dozen heavies - and then prison discipline which isn't being applied, then you have just got a volatile mix." 438 One nurse regarded the provision of phone cards as a risk to security, others as facilitating nuisance calls. The UK Ashworth Special Hospital experience indicates that at least in units for the Personality Disordered, such access ought to be regarded as a privilege counterbalanced by proper security arrangements. 439 The Ron Barwick Medium Security reopened on 21 August 2000. 440 Despite this reactive and security orientated approach, the recommendations of past coronial inquiries to modify cells and remove suspensions points, have largely been ignored. 441 Liebling & Hall, Seclusion in Strip Cells, British Medical Journal 1993 307, pp399-400.

CONCLUSIONS

442 As at March 2000, there were three persons detained under the Criminal Justice (Mental Impairment) Act, two of whom had been issued with a certificate which enables them to apply to the Supreme Court for the removal of the restriction order. There were no prisoners at that date in the hospital who were forensic mental health patients who had previously been detained under the Mental Health Act. There were some four people on remand, two of whom were women, who had a current mental illness diagnosis. Only one of those people at that date was at the Risdon Prison Hospital. 443 A paid part time Senior Official Visitor has been appointed. [Ministerial Statement. Findings - Deaths in Custody. 27th March 2001]. 444 Yard representatives interviewed indicated that they wished to set up an account to purchase football jumpers by a contribution from their pay but no approval was given. 445 Victorian Auditor-General’s “Special Report No. 60 - Victorian Prison System” 446 The Ministerial response (27th March 2001) to the Findings - Deaths in Custody indicates that there has been a review of the risk categories and subsequent risk assessment processes and that an improved system was introduced in February 2001. 447 This would require an expansion of paragraph 3.8 of the Director’s Standing Order No.1.4 if this has issued (or G.10 if it has not) relating to “Deaths in Custody” and notification of death to the next of kin. 448 Dr Chaplow is a psychiatrist who has worked in both the New Zealand and Australian Health systems in the specialist area of forensics for over 20 years. Along with Paul Mullen from Forensicare in Victoria, he was instrumental in the development of the Integrated Offender Management Model that has been adopted as best practice in a number States and Territories in Australia over recent years. He has held senior positions in the Australian and New Zealand College of Psychiatrists including being chair of the Forensic Subcommittee. Dr Chaplow has been engaged by the Commonwealth Government over the last 12 months as a specialist consultant to support the development of a national strategy for the development of forensic mental health as the next step to the Mental Health Discussion Document. DHHS consider that as a result of Dr Chaplow’s involvement the strategic direction for Tasmania are very much in line with the now agreed direction that will be occurring nationally in the 183 area of forensic mental health. 449 The DJIR and DHHS have agreed to combine Prison Hospital and Mental Health Forensic records. Records are to be retained in accordance with Australian Standards for Medical Records.

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