Ombudsman colludes with Corrections to cover up responsibility for ‘unnatural’ prison deaths

The death of Jai Davis in 2011 has highlighted critical deficiencies in the management and nursing culture at the Otago prison. Now there’s an even wider concern. Documentation has come to light showing the Ombudsman colluded with Corrections, albeit unintentionally, to cover up the circumstances surrounding his death which implicate management and nurses at the prison.

This is how it happened. When a prisoner dies suddenly from an unexpected death, this leads to at least three different investigations – one by the Corrections Inspectorate, which is monitored by the Ombudsman; one by the Police, which may be monitored by the IPCA (if there’s a complaint); and finally one by the Coroner. Each investigation has a different focus.  The role of the Inspectorate is to determine whether any Corrections procedures or protocols were breached, and whether any prison officers should be disciplined. The Inspector also makes recommendations to the chief executive to prevent it happening again.

David MorrisonCorrections Inspector David Morrison’s report 

Responsibility for investigating Jai Davis’ death on behalf of the Corrections Inspectorate was given to David Morrison (right).  While interviewing prison staff about the circumstances, he was accompanied by a representative from the Ombudsman’s office. The Ombudsman’s role was twofold: to ensure Mr Morrison did his job properly, and to ascertain whether Mr Davis received appropriate medical care and had been treated humanely while in prison. In other words, the Ombudsman was supposed to ensure the Inspector got to the bottom of what Corrections did right – and what they did wrong.

Mr Morrison never got to the bottom of anything. (Here’s the executive summary of his report.) He was well aware that Acting prison manager, Ann Matenga, had statutory responsibility to advise the Medical Officer that a prisoner had been admitted suspected of having drugs on board – but never held her to account for not doing so. Mr Morrison also failed to make any findings against the nurses, even though they clearly failed to provide Mr Davis with adequate medical treatment.  The only staff he made findings against were two officers who made fictitious observations that Mr Davis was snoring in the early hours of Monday morning – by which time he was already dead.

David Morrison’s recommendations

Mr Morrison refused to point the finger at anyone further up the chain of command. His key recommendation was that:

“The Department of Corrections considers establishing a protocol with the Ministry of Health to facilitate the x-ray of a prisoner where it is suspected a prisoner is internally concealing an unauthorised item that in the opinion of the Medical Officer may place the prisoner’s health at risk.”

Corrections already had a protocol in place to manage that situation. It said that when a prisoner is suspected of internal concealment, the Medical Officer is to be advised. The problem is that since the nurses and prison managers ignored the existing protocol, they could just as easily ignore any new protocol. So that wouldn’t be much help. To address that difficulty, Mr Morrison’s second recommendation was:

“All key prison staff and health service personnel are trained and adhere to the requirements under the Prison Service Operating Manual (PSOM)…”

Great – except that Corrections staff are already trained in the PSOM – it’s like the prison officers’ Bible. All they have to do is look it up to see what to do in any given situation.

The nursing culture at Otago prison

The reality is that Mr Davis’ death had nothing to do with a lack of training.  It had to do with a lack of compassion and personal responsibility. The nurses who ‘treated’ Mr Davis, but refused to call the prison doctor, were all trained health professionals. They have two Bibles of their own – the Nurses Code of Ethics and the Code of Conduct. These describe the ethical and legal responsibilities that nurses have to their patients, irrespective of Corrections Department protocols. The problem was they ignored their ethics and the Code of Conduct because of a culture of incompetence and indifference that operated in the Otago prison health centre.

The only way to change that culture is for the nurses who are guilty of professional misconduct to face a Departmental employment investigation and be brought before the appropriate disciplinary bodies – which would include the Nursing Council and the Heath & Disability Commission. If the police did their job properly, and prosecuted nurses who were guilty of gross neglect, some of them would also be brought before the Court.

But Mr Morrison made no such recommendation.  His 44 page report does not hold anyone to account for their failure to call the prison doctor – despite the fact that this was the most significant act of negligence in a succession of negligent acts culminating in Mr Davis’ death.  In other words, Mr Morrison’s report was a whitewash.

Bev WakemThe Ombudsman’s response

Here’s the crunch. Despite the report’s obvious deficiencies, in September 2011 only six months after Davis died, the Chief Ombudsman, Dame Beverly Wakem (left) wrote to the Chief Executive of Corrections praising the Inspector’s conclusions. She said:

“My investigator monitored the investigation throughout. I have been provided with the Inspector’s final report and… I am of the opinion that the report is fully satisfactory and that the recommendations made by the Inspector are reasonable.”

In hindsight, that endorsement looks increasingly bizarre. At the time it was written, the police had barely begun their investigation.  Who knows what crimes they might uncover? Once the police finally finished (three years later), coroner David Crerar, was able to get on with his inquiry.  After hearing from 58 witnesses, the shortcomings in Mr Morrison’s investigation were disturbingly obvious and led to heated cross-examination at the inquest.

The inquest also highlighted the inadequacies of the police investigation (which led to three complaints to the IPCA), as well as the shoddy treatment provided to Mr Davis by the nurses and prison managers. The coroner was so concerned at the multitude of mistakes by those responsible, he said he intended to make adverse comments about everyone involved including: “Jai Davis, his associates, the police and certain police officers, Corrections management, certain Corrections staff and certain health centre staff.”  

Even the police began to realise they might have got it wrong. On the last day of the inquest, they announced they would review their decision not to lay charges against those involved.

The Ombudsman’s role

Given what we now know about this case, it is hard to understand why the Ombudsman would so quickly, and naively, jump to the conclusion that the report by Corrections Inspector David Morrison was ‘fully satisfactory’.  The Ombudsman’s role is to look after citizens’ interests in their dealings with government agencies – which includes ensuring that prisoners are not subject to cruel or inhuman treatment. But if Dame Beverley’s monitoring of Corrections is so superficial that all she does is send a representative to keep the Inspector company and then endorse his report, she’s not doing her job.  The Ombudsman is supposed to be the citizens’ watchdog. The message this case sends is that the watchdog is little more than a lapdog – one with no teeth.

The reality is that David Morrison’s recommendations completely missed the mark. That could be due to incompetence.  A more likely explanation is that Mr Morrison was trying to protect the reputation and careers of prison management and nurses by minimising the extent of their involvement in Davis’ death.  Why? Because Corrections Inspectors are not independent of those they investigate.  Mr Morrison is part of prison management; he’s hardly going to find fault with his own team.

How independent is the Ombudsman?

But the Ombudsman is independent, theoretically.  She doesn’t work for Corrections – or does she? I’m not so sure anymore. Dame Beverley has endorsed Mr Morrison’s flawed report that makes no findings against prison management. Maybe she doesn’t work for them, but she’s clearly supporting their team.  Here’s a bigger question. Is the lack of independent oversight by the Ombudsman in this case typical of oversight into the Best-Sleeping-Dog-Wallpaper-HD-0007other 90 unnatural deaths which have occurred in prison in the last ten years?

The answer is – nobody knows, because the prisoners are all dead. And they’re not really in a position to lay a complaint. Even if they were – that wouldn’t help much if the watchdog just sniffs around the Corrections Inspector’s feet, and then goes back to sleep.

5 thoughts on “Ombudsman colludes with Corrections to cover up responsibility for ‘unnatural’ prison deaths

  1. Despite some past criticisims of Corrections the Ombudsman seems to becoming increasingly reluctant to deal with anything contraversial when it comes to the most dysfunctional of Government agencies – Corrections.

    It also seems that the outcome of many complaints to the Ombudsmen about Corrections is dependent upon who within that office deals with the “investigation”. One who is overtly pro Corrections and will side step an investigation if he can get away with it is Deputy Ombudsman Leo Donnelly, who frequently comes across as being pro Corrections. No doubt he is not alone.

    No longer is it a reasonable expectation that a complaint taken to the Ombudsman that has all the supporting evidence will be dealt with openly and with an honest outcome. With the passing of time and particularly under Dame Beverley’s leadership, investigation dedcisions have been heavily biased toward Corrections and defiant of an often overwhelming amount of evidence to the contrary.

    So no longer is the Ombudsman the independent body that it once was and has fallen under the Government’s control and agenda.

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  2. Thank you Mr Brooking for having the tenacity to bring these matters to light in the absence of msm coverage. I have been appalled by your revelations, as have the people with whom I have shared your posts. This issue should be a national scandal. I guess some nurses have to graduate bottom of the class. It seems they are the ones who end up looking after our prison populations.
    Within the current political climate I am not at all surprised with the whitewashing nature of things. They happen on a regular basis; a foregone conclusion; predictive in their regularity. That the office of the Ombudsman has been tainted is no surprise.

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  3. As a former independent prison ombudsman (Official Visitor in Queensland) I also am totally appalled at those authorities who have acted to cover up this death and who have failed to produce accurate reports. Clearly they are protecting “the system”. Something is deeply wrong in New Zealand if public officials behave this way. Something is deeply wrong if those responsible for the death and those responsible for the botched reporting can get away with it. In Queensland the Official Visitor program was established after a Royal Commission. I’d be happy to see a Royal Commission into Prisons in New Zealand.

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  4. Richard Barriball also died in OCF about three months before Jai Davis. The Inspector who ‘investigated’ his death was Trevor Longmuir.

    Assuming someone from the Ombudsman’s office held Trevor’s hand as he wrote his report into Richard’s suicide, they must be as naive as a new born lamb, or just plain thick as a brick to have taken anything said by OCF medical staff as honest. If Longmuir had taken more than a cursory view of the medical records he would have noticed they were inaccurate, and paperwork unfinished and not signed. Perhaps that should come as no surprise considering that three months before Richard died, the two doctors contracted to OCF decided not to renew their contract, citing bad nursing practices as the reason. Once the Coroner David Crerar, held the inquest, he also commented on the shambolic paperwork.

    It appears that since Richard and Jai Davis died some degree of accountability has been initiated, but in 2010/2011 it appears no one was responsible for ensuring prisoners received medication, no one was responsible for ensuring notes/records were up to date. No one was responsible for returning unused medication to the pharmacy for destruction.

    One outcome of this could well be happy medical staff – we have documents showing 75ml of methadone and up to 400(approx) gabapentin tablets went missing, as well as controlled drug records that don’t make sense and contradict evidence given by the health centre manager at Richard’s inquest.

    I complained to the Nurses Council but as a death had occurred it was referred to the HDC. After 4 years the HDC have decided not to take any of my complaints (complete with evidence) any further, so it’s pretty safe to say the HDC is also afraid to ruffle Corrections feathers.

    The reason it has taken four years to get to this stage is because Corrections consistently stalls in providing information to me, making the whole process a lot more difficult and prolonged. If I was a cynic, I would say it was a deliberate tactic, but as I have been assured by Ann Tolley that “Corrections is an open, honest and transparent organisation”, I would be naive in taking that stance, wouldn’t I??

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  5. The Office of the Ombudsman does seem to be have a culture of deference to, and support for, official positions.

    Subsequent to the Canterbury earthquakes the Ombudsman’s Office was slow to act over OIA criticisms of EQC and other agencies and had greater sympathy for the difficulties of officialdom than those desperately and urgently in need of information. From some time in 2011 the Office of the Ombudsman experienced increasingly difficult work loads with complaints and they themselves were slow to respond to their own problems. My recollection is that Dame Beverley didn’t approach the government for more assistance for their workload until 18 months or more after the problems arose. Not exactly proactive.

    How can the Office of the Ombudsman do “justice” to enquiries into deaths in custody like that of Jai Davis and complaints against agencies with their current culture and leadership?

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