In June the coroner released the longest report ever written about the death of a prisoner. Jai Davis died in Otago prison (right) in 2011 after smuggling about 60 pills (codeine and benzodiazepines) into Otago prison in his rectum.

Three prison nurses who were on duty over the weekend were well aware Davis was under the influence of drugs but none of them called the doctor. Instead, they tried to manage the situation by telling the officers on duty to speak to Davis every 15 minutes, to make sure he responded and was still conscious.

During the night, the officer on duty checked on him but didn’t try to wake him. By the time the officer realised Davis wasn’t breathing, he had been dead for six or seven hours and rigor mortis had set in. The coroner was critical of everyone involved: prison management, prison nurses and officers – and Davis himself.

Death rates

Dozens of inmates have died in prison. This chart (below) is taken from the Corrections Department Annual Report for 2006.  It describes ‘unnatural deaths’ in prison (usually by violence or suicide) and shows that over a five-year period, the rate of unnatural deaths was around 0.11 per 100 prisoners.  With an average prison population of 8, 500 this represents about nine unnatural deaths a year.

Things have improved, somewhat. Since 2008, only 34 inmates have died so-called unnatural deaths – representing approximately four deaths per year.  About the same number, 32 to be exact, have also died while working in New Zealand forests in the same period. In other words, in the last few years the death rate in prison has dropped by around 100% and is now the same as the death rate in the forestry industry. The problem is the forestry sector has the worst safety record of any industry in the country – 15 times higher than the death rate for all other work sectors in NZ combined.

Prosecutions

WorkSafe, the agency responsible for monitoring safety standards, calls these statistics ‘alarming’ and recently closed down 23 forestry sites. In 2014, the 140 page Independent Forestry Safety Review said the death rate in the forestry sector was still ‘scary’.  Following this review the government introduced the Health and Safety Reform Bill designed to “improve workplace health and safety across all sectors in New Zealand — especially in high risk areas like forestry.”

In addition to closing down sites, since 2009, WorkSafe has initiated 20 prosecutions under the Health & Safety in Employment Act, under which the maximum fine is $500,000 and the maximum prison sentence is two years.  For the first time last year, the police also got involved laying manslaughter charges over the death of 20 year old, Lincoln Kidd. They charged Foxton contractor Paul Burr, who felled the tree that killed Mr Kidd effectively accusing him of gross negligence.

Police also considered laying manslaughter charges against nurses and prison officers involved in Jai Davis’ death. But at the end of a three year investigation, they claimed there was insufficient evidence.  So far, the Police have never prosecuted anyone over the death of a prisoner.  But neither has WorkSafe. Here’s the reason WorkSafe gave for not prosecuting anyone over the death of Jai Davis:

“The reason for this decision is because WorkSafe has not undertaken an investigation into this matter hence it has no evidence that there were any breaches of the Health and Safety in Employment Act 1992”.[1]

There is a total lack of logic in this sentence. How could WorkSafe possibly know whether there were breaches of the HSE act if they don’t conduct an investigation? That’s the purpose of an investigation – to investigate and see if there is any evidence!

Does the Act apply to suicides?

Clearly there are significant differences between deaths which occur in the workplace and the deaths of prison inmates. The former are mostly accidents (which may or may not involve negligence) while the latter are mostly the result of suicides or violent attacks by one prisoner on another. In this sense, they are not accidents. However, the HSE Act is not just about accidents. It requires employers to provide a safe working environment for employees. Section 15 of the Act says it also covers ‘any other person’ at the place of employment, which would include prisoners.

Let’s see how the HSE Act might apply to suicides. Hanging is the most common means by which prisoners commit suicide. They find something to hang from – referred to by coroners as ‘ligature points’. Following the suicide of a prisoner in Mt Eden Men’s Prison (MEMP), a report was released which identified  ten suicides at MEMP between 1996 and 2011 where prisoners used the bars inside the cell window as the hanging point.

“In six separate findings between 1998 and 2005, a coroner recommended that the Department take steps immediately to modify the window(s)… The coroner expressed concern that over a period of almost fifteen years the Department of Corrections did not address the clearly identified and recognised risk of the window bars in cells.”

In other words, Corrections were well aware of the risk posed by the bars in the cell windows but refused to do anything about it. This appears to be a deliberate and reckless breach of the Act.

Here’s another disturbing case. Kerry Joll hung himself in Rimutaka in 2011. He had made two previous suicide attempts. There were 11 other suicides in prison that year. The coroner recommended that Corrections should improve its information systems so that the computer file of any prisoner known to be a suicide risk brings up a warning flag.  The Department responded to the coroner by saying:

“Improving our current information systems is regarded as not worth the benefits it would bring because of cost, complexity and proportionately few incidents it would benefit.”

That also looks like a deliberate breach of the Act

In Jai Davis’ case, the coroner ruled that it wasn’t a suicide. Nor was he attacked by other prisoners. His death would therefore appear to be an accident – one caused by the negligence of prison management and nurses who, knowing he had ingested drugs, refused to call a doctor.

Prison protocol requires a doctor to be called.  When health and safety protocols are ignored, WorkSafe is supposed to investigate.  Until it does, being sent to prison is more dangerous than taking a job as a forestry worker – an industry with ‘alarming’ statistics and the ‘scariest death rate’ in New Zealand.

[1]   Email from Iona Cameron, Senior Business Advisor to Chief Inspector, Worksafe, to Roger Brooking dated 10 June 2015.