No accountability: who is responsible for rising number of prison deaths

As lawyers acting for bereaved families, we want those responsible for prison deaths to be held properly accountable, write Kate Maynard and Helen Stone.

For families trying to obtain accountability for the death of their loved one in custody, justice is getting harder to come by. In the past, bereaved families would pursue the Ministry of Justice for its failure to protect the life of their relative. Now, as the Ministry of Justice increasingly contracts out custodial services, the presence of multiple private and public bodies in each prison and detention facility is making accountability more difficult to achieve.

• You can read Hardeep Matharu on prison suicides on the Justice Gap here

Responsibility for a preventable death can be dispersed among the many actors who have come into contact with the deceased, increasing the risk that lessons will not be learned.

Preventable deaths raising the same issues continue to occur in prisons and immigration detention centres around the country.

Individuals passing through the system will come into contact with a variety of actors responsible for their welfare.

A typical case might involve a young man who, after experiencing a psychotic episode in a public setting, is imprisoned. On reception in custody he should be screened by a nurse working for a primary health care provider, run by an NHS Trust. He will probably be referred to a secondary health provider, run by a private company. He may be referred to a self-employed GP, before being assessed by a psychiatrist employed by an agency or a different NHS (Mental Health) Trust.

In the chaotic and frightening prison environment, the individual’s mental health deteriorates. He makes cries for help, telling staff he intends to harm himself and begging to be moved to a healthcare wing. Staff identify him as a suicide risk but fail to act appropriately to ensure his safety. There is often poor communication between the various agencies and he is not referred for assessment by mental health staff, or he is assessed and wrongly deemed not to be at risk. Weeks after entering the prison, the individual dies as a consequence of a self-inflicted wound. He has been dead for some time before he is discovered. To harm himself, he used an object that should not have been in his cell, which prison staff failed to remove.

In this scenario, all those responsible for the prisoner’s welfare seem to have failed in their duty to protect his life. Despite these serious failures, those responsible can frequently avoid being held to account.

Establishing criminal liability raises issues of causation. The involvement of multiple actors makes it hard to show that any single individual or body is responsible for the failure to protect life. Very few private companies or NHS trusts are charged with corporate manslaughter, which requires causation to be proved. Health and safety prosecutions are more common but can seem not to reflect the seriousness of the wrongdoing. Disturbingly, whilst private contractors can be prosecuted under the Health and safety at Work Act, the Ministry of Justice is immune from prosecution.

Inquests offer a more promising avenue for discovering the truth and obtaining accountability. In their conclusions, inquest juries can identify the failures that more than minimally caused or contributed to a death. Additionally, coroners have the power to issue reports aimed at preventing future deaths. These can contain strong criticism and recommendations for improvement, providing families with hope that the organisations receiving them will confront their failings and act on them to avoid similar deaths. Reports to prevent future deaths have been issued to prisons, NHS trusts, the Home Office, police forces and private companies such as Care UK and G4S. However, organisations responsible for the welfare of prisoners are typically resistant to change.

Since October 2015, at least four preventing future deaths reports, each relating to a different death, were issued to G4S. The reports of abuse of detainees perpetrated by G4S staff at Brook House immigration detention centre last year suggest that G4S has done little to improve its approach. Despite this, the government recently renewed G4S’s contract to run Brook House.

With neither the criminal nor inquest process adequately equipped to sanction companies that repeatedly fail to protect life, we can find ourselves explaining to the parents of the deceased that, although every organisation responsible for their child failed to protect his life, there will be no proper accountability or change. The chance to prevent further unnecessary deaths is often a bereaved family’s only comfort.

Suing for damages is the last recourse for families seeking to make a company acknowledge wrongdoing. The solution is inadequate: damages do not reflect the value of a life and are small change for a multinational contractor.

Where responsibilities are contracted out, liability can be spread and suing multiple defendants is always unattractive and fraught with costs risks for a bereaved family.

When the odds are stacked against accountability and the government has a habit of rewarding companies that fail to protect life, what can be done?

Currently, companies and public bodies that oversee the running of prisons or prison healthcare can repeatedly fail to ensure that service providers communicate with one another well enough to protect the lives of prisoners without facing serious financial or criminal sanctions.

The duty to protect life under article 2 of the European Convention is especially strong in detention settings, where prisoners are entirely at the mercy of the State. The Ministry of Justice can contract out prison services but not its Article 2 obligations to ensure that sufficient safeguards exist to protect life.

When awarding contracts, the Ministry of Justice could assign ultimate responsibility for healthcare within a prison to a single organisation. This would allow for one organisation to be vicariously liable when mistakes are made by smaller providers. Penalty clauses should also be included in contracts for prison services, providing for significant fines in the event that the contractor is identified by a court as having failed to protect life. Repeated failures should be met with higher fines and contracts rescinded.

The large public and private bodies that run prison services have the ability to better protect the lives of prisoners. It is time they were compelled to use it.

Published on May 30