Prisoners aren’t really human – so torture and scalping are allowed

BoshierThree weeks ago, the Ombudsman Peter Boshier, issued a report which said the Corrections Department had been tying difficult prisoners to their beds for up to 16 hours a day. The report described one case as follows:

 “The man spent almost 600 hours restrained on the bed and in some cases was not released in order to go to the toilet. His limbs were not moved during the periods of restraint… The inmate also did not receive his medication upon being imprisoned… Corrections also failed to seek medical approval to secure the prisoner to the tie-down bed 36 out of 37 times.”

The five prisoners subject to this inhumane treatment were deemed to be at serious risk of self-harm. In the absence of adequate mental health treatment in prison, chief executive Ray Smith (below left) justified these extreme measures as the only way to keep these inmates alive.

Peter Boshier identified four different prisons where this insidious substitute for mental health treatment was taking place: in Auckland, Christchurch, Otago and Waikeria.  He said the way these prisoners were treated was so cruel, the Department was in breach of the Crimes of Torture Act 1989.

That’s a pretty serious allegation.  Section 3 of this Act, says that anyone who commits an act of torture in New Zealand can be sent to prison for up to 14 years. If it’s that serious an offence, you’d think the media would be up in arms, the police would take immediate action and the prison managers who allowed this mistreatment to take place would be prosecuted.

Ray Smith
Ray Smith: “Appropriate action was taken”

But that didn’t happen of course. Ray Smith assured the public that the matters were “fully investigated and appropriate action taken”.  You must be joking.  One prison officer was fired (for assaulting a prisoner who was already tied down). No one was prosecuted for torture and the media lost interest in the story two days later. Why? Because the victims of these crimes are prisoners; and for the last 20 years or so, with the willing help of the media, the Sensible Sentencing Trust and most MPs have successfully depicted prisoners as something less than human.

As such, they don’t seem to have any rights. Well that’s certainly what Labour MP, Stuart Nash, seems to think. After hearing last week that the High Court said convicted murderer, Phillip John Smith, had the right to wear a toupee in prison, Nash pushed his unrestrained mind into overdrive and posted a message on Facebook claiming “He has no rights!!”  He went on to suggest other inmates should scalp Mr Smith. This is what he wrote:

Stuart Nash: “He has no rights!!”

“Scalping is associated with American Indians but it was actually started by Europeans. Perhaps someone in jail who isn’t too fond of monsters who destroy little boys’ lives by stealing their innocence in the worst way possible could reintroduce Mr Smith to the practice.”

Posting an incitement to violence on Facebook is a potential breach of section 22 of the Harmful Digital Communication Act which states:

  • A person commits an offence if the person posts a digital communication with the intention that it cause harm to a victim; 
  • Posting the communication would cause harm to an ordinary reasonable person in the position of the victim.

Will Nash be prosecuted? Of course not.  This is the era of fake news where myths, spin, and slander are normal narrative – often replacing the truth. Even law professors are not immune from this insatiable need to denigrate those in prison as less than human. In an opinion piece in Pundit, Otago law professor, Andrew Geddis (below) argues that Phillip Smith does have rights, including the right to wear a toupee. But in order to show he’s not a snowflake or a bleeding-heart blouse, Geddis describes Smith as ‘a piece of shit’ – adding ‘most definitely’ for good measure.

Prof Andrew Geddis: Called Phillip John Smith “most definitely a piece of shit”

That may not be against the law – although one could well argue that such a ‘communication would cause harm to an ordinary reasonable person’. If someone texted that to a schoolboy (or girl), it would be called bullying. Calling an adult a piece of shit online (where it lasts forever), could well cause an ordinary person hurt and distress. Sometimes this kind of abuse leads to suicide.

The thing is – prisoners in New Zealand are barely seen as people, let alone ‘ordinary’ or ‘reasonable’.  You can say anything you like about them. It seems you can also do anything you like to them.  You can house them in shipping containers; feed them poor quality food; lock them up for 23 hours a day; deny them access to mental health treatment when they’re suicidal; expose them to fight clubs and violence; withdraw opiate pain medication when they need it; deny them access to the dentist when they have toothache or an abscess; prevent them from voting in elections; prevent them from talking to the media – the list goes on.

Now you can even torture prison inmates and encourage them to scalp each other.  Except for the Ombudsman, no one in New Zealand seems to give a shit – because according to the Sensible Sentencing Trust, Stuart Nash and now a prominent law professor in New Zealand, that’s all they are.

Arthur Taylor subject to cruel inhuman treatment – Ombudsman: chief executive implicated.

Arthur TaylorDuring his current incarceration in Paremoremo, Arthur Taylor has got right up the noses of Corrections officials by repeatedly taking them to court. He asked the High Court to rule that the National Party’s blanket ban on prisoners voting contradicts human rights – which it does according to the European Court of Human Rights. He appealed the smoking ban introduced by Judith Collins – and won the legal battle forcing the Government to change the rules in order to win the war.

Mr Taylor has become something of a ‘prison lawyer’ and for a while was allowed to store his legal files in a separate room. Not surprisingly, Corrections management don’t like him, and in June 2011 he was placed on ‘directed segregation’ after he was allegedly caught with a cell phone in his possession.  (If the Department’s cell blocking technology actually worked – current cost $13 million – Mr Taylor would not have been able to use a cell phone, but that’s another story.)

Directed segregation

IsolationDirected segregation means the prisoner is locked in his cell 23 hours a day and unable to communicate with other prisoners.  According to the Ombudsman, this “allows a prison to restrict or deny a prisoner the opportunity to associate with other prisoners thus reducing any influence or risk that they may present.”  However it may “only be imposed when absolutely necessary to protect the security, good order and safety of the prison, and should only be imposed for the period that such a risk exists.”

Segregation in prison is a punishment of last resort so is usually imposed for only 14 days.  Arthur Taylor was kept in segregation for more than eight months.  He complained to the Ombudsman who took the matter seriously and released a 34 page report titled the “Management of Arthur Taylor at Auckland Prison between 15 June 2011 and 30 April 2012”.

Extensions to 14 day penalty

The prison manager has to have a valid reason to extend a segregation order. So prison Residential Manager, Tony Queree, wrote a memo saying it was “clearly evident that prisoner Taylor has taken excessive advantage of the unit staff efforts to support him in the preparation of his (legal issues). No matter where we place him, he has continually shown that he presents a significant ongoing threat to the security and good order of this institution.”

Bev WakemThe Ombudsman (Beverley Wakem) could find no evidence that Mr Taylor continued to pose a risk to the security of the prison beyond the initial 14 days.  She contradicted Mr Queree’s assertions noting that:

“No incident reports, misconduct paperwork, or file notes were attached to support Mr Queree’s contention that Mr Taylor remained a threat to the security and good order of the prison… Mr Queree did not provide any information which showed the risk remained, and as such, an extension was required.

“The reference to the assistance provided to Mr Taylor for his legal matters does not appear to be valid… as approval had been given by the Department for Mr Taylor to have an office area, and there was a legal obligation for the Department to provide assistance to prisoners for the preparation of legal proceedings.”

Nevertheless, Mr Taylor ended up in continuous segregation for the next eight months – because management regard him as a litigious and difficult prisoner.  Not only was he isolated from other prisoners, for much of the time he was also denied his entitlement to exercise for an hour a day and was allowed only one five minute phone call a week. The Ombudsman was highly critical of virtually every aspect of Mr Taylor’s segregation and said:

“In many cases most, if not all, of Mr Taylor’s rights and entitlements listed on the management plan were restricted despite no risk being identified in relation to those areas… There are no documented reasons for the decision to deny (him) the ability to associate with other prisoners.”

The High Care Unit

NZ prisonAt one point, the prison manager placed Mr Taylor in what is known as the High Care Unit (HCU). This used to be known as the At Risk Unit but these cells were decommissioned years ago because of their run down condition.  At Risk Units are designed to prevent suicidal prisoners from committing suicide and operate in most New Zealand prisons.  They’re more like sensory deprivations cells – with no TV, no radio, nothing to read and no visitors allowed. The inmates hate them.

Putting psychologically vulnerable prisoners into such conditions was criticised by the Ombudsman in the 2011 OPCAT reportbecause the units are focused on custody rather than treatment.”  That report described the detrimental impact on prisoners “who had been detained in at risk units for several months, often in strip conditions, and with limited opportunities to interact with other.”  The Ombudsman has also noted that Corrections uses At Risk cells to ‘manage’ prisoners who will often “drift in and out of the At Risk Unit whether they are at risk of self-harm or not.”  

The Ombudsman was particularly concerned about conditions in the Auckland HCU, as there was no power or running water and nearby lights were left on all night. Leaving the lights on for months on end contributes to sleep deprivation – one of the ‘clean’ torture techniques used by regimes which claim to respect international law and human rights.

The psychological impact

Noting that Mr Taylor was held in these segregated conditions for months on end, the Ombudsman said “Denying a prisoner the ability to associate with other prisoners is a significant restriction to the prisoner’s rights, and can have significant impact on prisoners’ well-being and mental state of mind if the denial of association is for extended periods of time… The placement of Mr Taylor into the HCU, along with the restrictions imposed by the management plan… was more akin to a punishment regime. Further it appears that his placement into the HCU had the effect of exacerbating his behaviour rather than improving it.”

Peter WilliamsThis should come as no surprise. Retired defence lawyer, Peter Williams QC, who has extensive knowledge of prison conditions, discussed the issues in a Herald article: Jail isolation breaks souls and minds. The question is – does this constitute torture?

The Ombudsman seems to think so. In yet another OPCAT report, Monitoring Places of Detention (2013), she wrote:

Segregated prisoners at Auckland and Mt Eden prisons had particularly bad living conditions… Most prisoners placed on directed segregation were not receiving a daily minimum entitlement of one hour in the open air….The lack of appropriate management facilities at Auckland prison… is exacerbated by a lack of stimulation for those held on long-term segregation.

“Accommodation for those prisoners currently undergoing a period of segregation is well below standard and could be considered cruel and inhuman for the purposes of the Convention against Torture.”

Don’t rock the boat

In other words, the Ombudsman specifically describes the treatment of Mr Taylor as a ‘punishment regime’ which  ‘exacerbated’ his behaviour and depicts the segregation cells in Paremoremo  as ‘cruel and inhuman’.  She excuses herself from doing anything about this by putting the words ‘could be considered’ in front of ‘cruel and inhuman’.  What this seems to mean is that until a prison official is actually charged and convicted, it’s a moot point.

But the Ombudsman is not about to rock the boat. If she had been willing to take a more proactive stance, the United Nations and the New Zealand police would have to be notified and then a prosecution could then be initiated against the prison managers and Corrections chief executive, Ray Smith.

Ray SmithMr Smith would be accountable because section 58 of the Corrections Act says the chief executive has to be informed of any directed segregation “and the reasons for it” and a directed segregation can only be extended beyond 14 days if “the chief executive directs that it continue in force”.  Mr Taylor was subject to directed segregation for eight months – which indicates Mr Ray Smith is complicit in his ‘treatment’.

The potential penalties for Mr Smith are serious. The NZ Crimes of Torture Act – which includes cruel and inhuman treatment – says anyone who “conspires with any other person to commit an act of torture” or “is an accessory after the fact to an act of torture” is liable to up to ten years in prison.

Who you’re gonna call?

The reality is that describing what happened to Arthur Taylor and other segregated prisoners as torture – and suggesting the chief executive should be prosecuted, would likely lead to a media frenzy. It would be politically disastrous for the Corrections Department, the National Government and possibly for the Ombudsman.  No wonder she was reluctant to notify the United Nations or the police.

Graham McCreadyIn the absence of a more definitive statement from her, will the police prosecute anybody? I doubt it. So who you’re gonna call?

Graham McCready  of course.

Prison deaths linked to Corrections refusal to employ sufficient doctors

Three former prison doctors recently called for an inquiry into prison medical services after the death of two inmates at the Otago prison. In September, the Southland Times expressed concerns about the high suicide rate in prison: Jail health and suicide inquiry demandedMedical ethics for dummiesThese stories follow allegations that the Corrections Department discourages prison doctors from prescribing pain killers and other essential medication, that it pushes doctors into breaching their medical ethics and operates a ‘minimum services dental policy’ leaving hundreds of prisoners in pain. On this blog, it has been argued that these policies constitute deliberate ‘negligence by government officials’ and are a form of pharmacological torture.

I have now discovered that at the core of this negligence, there is a major shortage of doctors and dentists in prison. This shortage pushes nurses into the role of gatekeepers – deciding who can and who can’t see the doctor.[i]

The United Nations Minimum Rules for prisoners

Theoretically, getting to see a doctor in prison should be easy. The United Nations Standard Minimum Rules for the Treatment of Prisoners state that:

“At every institution (i.e.  Prison) there shall be available the services of at least one qualified medical officer…” and “The medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.“

This rule is indirectly endorsed  by Section 75 of the Corrections Act 2004 which states that prisoners are entitled to receive a standard of medical care which is “reasonably equivalent” to that which is available in the community.  In a nutshell, these rules suggest that a medical officer (i.e. doctor) should be available to prisoners seven days a week – as is the case in the community where patients can visit their GP Monday to Friday and use an after hours’ service on the weekends.

To see whether Corrections is meetings its statutory obligations, I made an OIA asking how many hours a week doctors were on duty in each prison.  I received a reply from Bronwyn Donaldson, Director of Offender Health, containing this chart which shows the number of hours that doctors are contracted to work at every prison in the country. It looks pretty much like this (below) except that it contains the figures for all 17 prisons:

Prison Doctor contracted hours Number of doctors No of prisoners
Auckland prison

18 hours

3 Part-time


Mt Eden

28 hours

3 Part-time



18 hours

1 Part-time


Hawkes Bay

10 hours

1 Part-time



28.5 hours

4 Part-time



24 hours

2 Part-time



10 hours

2 Part-time



2.5 hours

1 Part-time


The first thing to notice is that there is not a single prison in the country where a doctor is on duty for five days in the week, let alone seven.  The greatest number of hours a doctor is available is 28 (or 3½ days) – at Rimutaka and Mt Eden – each of which has about 1,000 prisoners.  The lowest number is 2½ hours a week – at Invercargill – which has 180 prisoners. No wonder prisoners complain that nurses often prevent them from seeing the doctor – most of the time there isn’t one on duty.

The ratio of doctors to prisoners

In order for there to be an ‘equivalent’ level of care in prison, the ratio of doctors to prisoners has to be similar to the ratio of doctors available to the general public.  But Corrections doesn’t get anywhere near this. In 2010, there were 13,883 full-time general practitioners in New Zealand. This translates to 317 doctors per 100,000 of the population – or one doctor for every 315 people.   In June 2013, the prison population was 8,597. The total number of hours worked in one week by all prison doctors combined is 229 – equivalent to 5.7 doctors working 40 hours a week.  This represents an average (over all 17 prisons) of one doctor per 1505 prisoners.  In other words, prison doctors have to service nearly five times as many patients as doctors in the community.

In some prisons, the ratio is even worse than that.  Hawkes Bay prison holds 666 prisoners but has a doctor on duty for only 10 hours a week.  That gives a (full-time) ratio of one doctor per 2,664 prisoners.  Tongariro/Rangipo holds 540 prisoners but the Department has allocated a doctor for only seven hours a week.  That gives a (full-time) ratio of one doctor per 3,085 prisoners.[ii]  That doctor has to take care of nearly ten times as many patients as a doctor in the community.

The high health needs of prisoners 

Michael Tyrrell handcuffed to his hospital bed the day before he died. His daughter took the photo

These are disturbing figures – but they represent only half the picture.  This is because prisoners have much higher health needs than the general population. In the words of the National Health Committee: “A special case of health need exists in prison.” (iii) In support of this statement, the NHC reports that the lifetime prevalence of alcohol abuse and dependence among men in prison is twice that of men in the wider population.  The lifetime prevalence of drug disorders is eight times higher.  Historically, smoking rates among prisoners have been nearly three times higher for men and four times higher for women – although these figures may improve with the recent ban on cigarettes in prison.

The rate of heart disease among male prisoners is 3.3 times higher than males in the community while female prisoners have twice the rate of asthma compared with women in the community.   Rates for hepatitis C among prisoners are also much higher – 8.1% for women and 5.8% for men compared with only 0.3% in the general population.

In regard to mental illness, the prevalence of schizophrenia among prisoners is more than three time the community rate; rates of post-traumatic stress disorder are four times higher for women and five times higher for men.  Australian research suggests up to 30% of those in prison have intellectual disabilities and 50% are affected by a psychiatric disorder.  The figures are likely to be similar in New Zealand.

How many doctors are required for equivalence?

In other words, prisoners have more medical problems, more complex problems, and a much greater need for medical services than the general populace.  This means that providing the same doctor/patient ratio in prison as in the community would not actually provide an equivalent standard of care.  In order to receive equivalent care, the prison population appears to need at least twice as many doctors per person.

The Royal New Zealand College of General Practitioners (which has been accused of sweeping prison suicides under the Cornerstone) believes that a ratio of one (full-time) doctor to 1000 patients “presents the best working environment for GPs”.  At that level, prisoners might receive a standard of care which is superficially ‘equivalent’.  Given the extraordinary high health needs of those in prison, the ratio would probably need to be one doctor per 500 prisoners before it could be called ‘reasonably equivalent’.  In that case there would need to be 17 full time doctors available rather than the current 5.7.

Systemic breaches of the Crimes Act

In conclusion, it seems blatantly obvious that the Corrections Department is not providing anywhere near an equivalent level of care to prisoners and is therefore in breach of section 75 of the Corrections Act.  Unfortunately, this doesn’t seem to be a crime.  However, breaching section 151 of the Crimes Act is.  The Crimes Act requires anyone who has vulnerable individuals in their care:

(a) to provide that person with necessaries; and

(b) to take reasonable steps to protect that person from injury.”

Basic medical care is absolutely necessary.  Failing to employ sufficient doctors to provide this means health problems may be left unattended leading to unnecessary pain and suffering, sometimes with fatal consequences.  The death of Jai Davis and suicide of Richard Barriball in the Otago prison two years ago are a direct result of the Department’s failure to provide medical necessaries. Although the police showed no interest at the time, after I made a formal complaint to the IPCA, the police finally began  investigating these two deaths at the start of 2013. The investigation is on-going and no one in Corrections has yet been charged with a crime. Even if someone is, unless the Department doubles or trebles the number of doctors, prisoners will continue to die because of medical neglect.

Management at Corrections clearly don’t care. In her reply to my OIA, Bronwyn Donaldson, Director of Offender Health, said:

 “I can advise that the Department has contracted sufficient hours for doctors to provide care to prisoners…the Department does not have any concerns about the hours currently worked in its prisons.”

[i]  The difficulties prisoners experience accessing a prison doctor have been documented by the Ombudsman in his Investigation of the Department  of Corrections in relation to the Provision, Access and Availability of Prisoner Health Services. The negative impact this has on the relationship between nurses and prisoners is described by Dr Michael Roguski in The Effects of Imprisonment on Inmates’ Health and Wellbeing.

[ii]  The Ministry of Health says that when a doctor has more than 2000 patients, this is an ‘alert’ level indicating risk for the doctor as well as the patients.

[iii] Health in Justice, Improving the health of prisoners and their families and whānau, p 24-25.

Health & Disability Commission endorses inhumane treatment of prisoners

cellNo one would be surprised to hear that standover tactics, bullying and violence are rife in prison. But you may be surprised to learn that prison nurses in New Zealand also engage in this kind of behaviour.  In 2006, management at Corrections were so concerned about bullying by prison nurses, they asked the Health & Disability Commission to investigate.

The HDC dispatched two employees, Dr Elizabeth Finn and Mr David Webber to conduct a series of workshops in prison health centres. The first was held at the Waikeria prison in 2006 and workshops were subsequently held in another 12 prisons.

In 2008, a damning summary of the HDC’s findings was released in a report titled Team development workshops for prisons nursing services delivered by Dr Elizabeth Finn and Mr David Webber“. In September 2009, a copy of the report was sent to the Ombudsman by HDC chief legal advisor, Nicola Sladden, describing a “culture of horizontal violence and bullying” within prison health centres. It identified the following problems:

Lack of leadership

  • “Not all nursing teams had a team leader, and not all of those that had a team leader experienced team leadership… Many teams identified a lack of cohesion in coordination with the team; this appears to occur in the presence of a team leader as well is in its absence.” 
  • “Workshop discussions often identified situations where inadequacies in team operation actually or potentially compromise the care of patients and/or safety of members of the nursing team… ”  
  • “There is great variation throughout the country (in team morale/culture). In some teams it was excellent and the team obviously was open, respectful and vibrant. In other teams this was identified as being very poor, to the extent that some nurses felt disinclined to come to work. Team culture was characterised by negative attitudes and interactions among nurses, (including) in-fighting, unkindness, backstabbing, and actions intended to discredit colleagues.”  
  • “Some nurses experience treatment from custodial officers which shows no respect for them personally or for their role in delivering healthcare. Some nurses speak of having to ‘serve an apprenticeship’ of up to two years before custodial officers will accept them – speak to or respond to them. Some officers may interfere in discussions between a nurse and a patient, possibly ‘winding up’ the patient and making delivery of care more difficult.”

Discouraged medication policy

Another failing identified by Finn and Webber concerned the prescribing of medication by prison doctors. The authors wrote:

“It appears that some doctors are not sufficiently aware of the context of the prison environment and the particular challenges it presents. For example, some medications are inappropriate in this environment because of their potential for use as ‘currency’. Lack of national consistency with respect to provision of medications to patients who are prisoners may lead to stand-over tactics and abuse directed towards doctors in the first instance, and also towards nurses. A robust induction programme for doctors would be helpful.”

From time to time, prisoners have to be taken to hospital with serious injuries or medical problems. Finn and Webber even reprimand doctors in hospital Emergency Departments – apparently for not doing what they are told by prison nurses. The report says:

“(Doctors in) EDs may not be co-operating with advice from nurses that certain medications are not allowable in prisons, and are still prescribing these (codeine, morphine).”

In cases of severe pain, opiates such as codeine and morphine are likely to be the medications of choice. But the HDC seems to believe that, even in medical emergencies, prisoners should not have their pain relieved. Apparently they should continue to suffer – even when the pain is so bad they need to be taken to hospital.

Unfortunately, this ‘discouraged medication policy’ extends well beyond opiate pain relief. All medications including antidepressants and antipsychotic drugs are taken away from prisoners – usually on their first day in prison.  Although this practice varies from one prison to another, often such medications are never reinstated.

Breach of  human rights and medical ethicsPrison doc

Denying patients clinically appropriate medication, especially when they are in severe pain or have mental health disorders, is inhumane and a breach of human rights. It contributes to depression and even to suicide. The reality is that the systematic denial of opiates and other clinically appropriate medication is a form of pharmacological or ‘clean’ torture; it causes serious harm and distress to the prisoner without leaving any visible evidence.

The policy also encourages prison doctors to breach their medical ethics. The New Zealand Code requires physicians to “Consider the health and well-being of the patient to be your first priority” and to “render medical service to that person without discrimination.”  When doctors are coerced into making prison policy their first priority, and discriminate against the patient because he or she is in prison, they risk being struck off for breaching their ethics.

What’s extraordinary is that the Health and Disability Commission seems to condone this practice. For a Government agency with responsibility for promoting safe medical practices, this is truly disturbing. It suggests the HDC is complicit in Corrections strategy to breach the human rights of prisoners and raises serious questions about the integrity of investigations into complaints by prisoners who need these medications.

The Commissioner’s response

In July this year, I wrote to the HDC and asked if they still endorse this ‘discouraged medication policy’. Mr Anthony Hill, the Commissioner, replied:

“It is not HDC’s practice to endorse the policies or procedures of health care providers. This is because I must consider complaints to HDC fairly, with an open mind and free from bias. This may be called into question if I have previously endorsed a policy or procedure that is the subject of a complaint to HDC.”

That’s the whole point. The Finn Webber report is quite clearly an endorsement of Corrections discouraged medication policy and my letter therefore questions the integrity of all HDC investigations into prisoner healthcare in the last five years. Since Mr Hill refused to acknowledge the bias in the HDC’s position, I have now written to the Ombudsman suggesting that if the HDC does not endorse this particular policy, then the Ombudsman should encourage the Commissioner to write to Corrections and tell them so. Otherwise, the Finn Webber report gives the Department every reason to continue medication off prisoners – thereby leaving them in pain and distress – and believing the HDC endorses this unethical practice.

I also suggested to the Ombudsman that he/she should persuade the Corrections Department to change this practice and remove it from their Medicines Policy. This is because New Zealand is party to the Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment  which requires Governments to take effective measures to prevent the torture and ill treatment of people who are detained by the State.  And since 2007, when New Zealand signed the Optional Protocol to the Convention against Torture (OPCAT), the Ombudsman became one of the monitoring bodies with responsibility to ensure that New Zealand meets its obligations under the Convention. If he does not intervene, then by failing to act, the Ombudsman is also condoning and endorsing the torture and ill treatment of New Zealand prisoners.

Corrections’ discouraged medication policy amounts to phamacological torture

On Tuesday, 1st October 2013, Geoff Robinson (photo) interviewed  Roger Brooking on Morning Report about the Corrections Departments Medicine Policy. It runs for 4.30 minutes. This is the full transcript of the interview:

Geoff RobinsonGeoff Robinson: Some doctors are calling for a major review of the way prisoners’ health is managed.  Dr Wayne Cunningham, a former Otago prison doctor says the emphasis on security over health when he worked at the prison meant it didn’t work well.  And he says it was a miracle no one died on his watch.  Last week, Radio New Zealand revealed that the police are investigating accusations that a prisoner received substandard care at the Otago prison before he died in February 2011 and they’re reviewing another patient’s suicide four months earlier.  Those investigations are underway after a complaint from a Wellington drug and alcohol counsellor, Roger Brooking, and he joins us now.

So this suggestion from Dr Wayne Cunningham that there should that there should be a review of the whole health needs of prisoners and how they dealt with, would you agree with that?

Roger Brooking: I absolutely would.  The Corrections Department has a number of policies and practices which make it very hard for doctors and nurses in the prison system to provide what I would call proper or equivalent health care (to that which is available in the community).  One of the policies that the Department has is the Medicines Policy.  It has a particular section, 6.1, which I refer to as the “discouraged medication policy”.  Basically what that says is that prison doctors are “actively discouraged” from prescribing benzodiazepines, opiate painkillers, and any other medication which may be tradable or have currency in the prison environment.

Geoff Robinson: these are medications which are normally provided to patients by the health service throughout the country but doctors in prison are actively discouraged from prescribing them?

Roger Brooking: That’s right.  And this has significant impacts on the prisoners.  There are violent incidents in prison;  prisoners like anyone else get sick; occasionally they have to go to emergency departments – the policy even extends to the point that doctors in hospital emergency departments are discouraged from prescribing opiates to a patient, a prisoner, who may have broken his leg or been stabbed or whatever it is.  To me, I regard this as a kind of enhanced pharmacological torture.

Geoff Robinson: Is it a question then of whether the prisoner or the patient has the drugs in his or her possession and is able to take them as appropriate and may possibly try and trade them to some other prisoner – or is it something that the prison authorities could hand out as necessary?

Pill in mouth

Roger Brooking: Well, that’s exactly how they do it.  They don’t give the prisoner a handful of pills or a bottle or a little box like you would get in the community; in the prison environment, especially for medications like opiates, those are dispensed in my understanding on a daily basis. The prisoner has to go to the prison health centre and the nurse would give him the pill and he has to swallow it in front of the nurse. And so I don’t see that there’s too much of a problem there.

Geoff Robinson: And so you believe therefore that prison doctors should not be actively discouraged from prescribing them because there’s enough safeguards in the system to prevent them being traded?

Roger Brooking: Yes.  And I would also add that this policy encourages prison doctors to actually breach their medical ethics.  Because prison doctors, like any other doctor, his first priority is to provide a duty of care to the patient.  Now if the doctor basically gives in to this ‘discouraged medication policy’ and doesn’t give the prisoner medication which is clinically appropriate in that particular situation, then he is breaching his medical ethics – and could be struck off.

Geoff Robinson: So the doctor is paid by the Corrections Department to provide care to the prisoner?

Roger Brooking: Yes.

Geoff Robinson: And the doctor’s first responsibility is to the patient, the prisoner, rather than the person who’s paying him?

Roger Brooking: Under his medical ethics, yes, his responsibility is to the patient.  But what appears to happen is that in the prison environment, because doctors and nurses are contracted to the Corrections Department that interferes with the patient doctor relationship.  And in many cases from my experience, many doctors find this very difficult.  I think it is a difficult situation for them because they’re caught between a rock and a hard place and it depends on the integrity of the doctor.  Some doctors will put the patient first; some doctors will put the prison policies first.

Geoff Robinson: Thank you for joining us. That’s Roger Brooking. He’s a Wellington drug and alcohol counsellor.

Dental torture – ‘tangible negligence by government officials’

The Human Rights Data Project defines torture as:

“The purposeful inflicting of extreme pain, whether mental or physical, by government officials or by private individuals at the instigation of government officials. This includes the use of physical and other force by police and prison guards that is cruel, inhuman, or degrading, and deaths in custody due to tangible negligence by government officials.” 

This post, ‘80% of countries use torture – New Zealand is one of them, explains that democracies tend to use ‘clean’ torture techniques that leave no physical signs of abuse. It also explains that psychological torture techniques produce similar levels of post-traumatic stress disorder as physical torture.  This link describes the psychological impact of the Corrections Department’s Medicines Policy which actively discourages prison doctors from prescribing opiate painkillers and other medications to prisoners – leaving them in severe pain and often forcing them into withdrawal.

Minimum dental services policy

Corrections also discourages dentists from providing proper dental care to prisoners.  In 2012, the Ombudsman issued a 157 page report titled: Investigation of the Department of Corrections in relation to the Provision, Access and Availability of Prisoner Health Services. It was highly critical of the Department pointing out that nearly half of the country’s 8,500 prisoners reported problems with their teeth. It said:

“Prisoners have high dental health needs, possibly caused by increased levels of neglect of oral care, high rates of substance abuse, smoking and underlying poor nutrition. Prisoners vary in their ability and motivation to take care of their own oral health, often entering prison with a previously chaotic lifestyle. “

Management at Corrections don’t care. They have what the Ombudsman calls a ‘minimum dental services policy’ which is similar to their ‘discouraged medication policy’.  The ‘minimal services’ are supposedly justified by Section 81 of the Corrections Regulations 2005 which states:

“Any examination or treatment must be primarily concerned with the relief of pain,  the maintenance of a reasonable standard of dental care relative to the dental and oral health of the prisoner concerned before the prisoner was admitted to the prison, or both.” 

The Department interprets this regulation to mean that if inmates had poor dental care prior to coming to prison, it will continue to provide poor dental care.  For most prisoners, all the Department offers is low level pain relief.  Prisoners with tooth decay or toothache inform the prison nurse who (may or may not) put them on a waiting list. For prisoners on the list, no matter how bad the pain, all the nurses will provide is panadol.  That’s because the ‘discouraged medication policy’ inhibits doctors from prescribing strong pain killers.

Extraction is the standard procedure

Dental tortureWhen a prisoner finally gets to see the dentist, all the dentist is allowed to do is extract the offending tooth.  Amalgam fillings are not permitted for offenders who came into prison with bad teeth.  In The Effects of Imprisonment on Inmates and their Families Health and Wellbeing, Dr Michael Roguski says:

“This restrictive eligibility criterion was said to result in tooth extraction as the standard form of prison dental treatment. In a number of cases, participants indicated that teeth are extracted regardless of whether tooth restoration, such as a filling, is the more appropriate or the easier course of action.”

Sometimes even extraction is not available.  This painful policy is more likely to be applied to short term prisoners. Those who are going to be released within 12 months usually get no dental treatment at all. One inmate described his ordeal to the Ombudsman like this:

“I put in a chit to see a nurse about my tooth which was decayed. She declined to put me on the dentist’s list. Some months later, I saw the nurse again because it was sore at night. She told me to take Panadol. My tooth finally abscessed and, when I saw the nurse, I was told that because I was getting out soon, I could see a dentist then.”

The reality is that 80% of the 20,000 people who end up in prison each year are released within 12 months.  Panadol is ‘dished out like lollies’ but opiate pain killers are not allowed. If prisoners are in severe pain, they may be lucky enough to have the tooth extracted, but that’s all. No attempt is made to provide fillings or save the tooth before it needs to be extracted.

Long waiting lists

The rules are slightly different for the 20% of inmates who are in prison for more than 12 months. But even for this group of prisoners, getting to see a dentist in prison is still extremely difficult.  The Department has difficulty even finding dentists who are willing to work in prison. In 2012 the Ombudsman reported that no dentists were available in Christchurch and a Wellington dentist had to be flown down to provide dental care at all three Canterbury prisons.

Arohata women’s prison has never had a dentist.  Once a fortnight, female prisoners at Arohata are transported to the health centre at Rimutaka prison to see the dentist. On dental days, the Rimutaka Health Centre is closed (to males needing medical attention), because female prisoners are not allowed to mix with male prisoners.

At other prisons there are long waiting lists. As a result, some prisoners resort to pulling out their own teeth. One prisoner described his experience to Dr Roguski like this:

Last year I filled in a form in July. I didn’t get seen till just before Christmas. But by then I’d already pulled it out myself. They’d given me Panadol and cloves, but that was no good. It was too painful. I couldn’t eat I was in so much pain. I was losing weight. I’ve pulled three out myself so far. (Timaiti, Māori man, 40–50 years)

The Ombudsman concluded:

“Very few prisoners we spoke to commented favourably in respect to dental services. At the prisons we visited, prisoners regularly complained about delays in dental treatment. Not only did they complain about suffering pain during such delay, but referred to additional dental problems such as infection and abscess by reason of the delay.”

“The length of waitlists for prisoners requiring dental treatment indicates a failure to meet the Department’s Performance Standard B.06 (Dental Care) that states: “the dentist’s practice hours are adequate to meet the prescribed minimum dental services for each prisoner”. It would appear that the dental service is not being resourced at a level which reflects the high levels of dental need which exist in New Zealand prisons.”

What the Ombudsman should have said is that the Department spends $1 billion a year on containment and security but is incredibly reluctant to spend money on ensuring that prisoners have adequate dental care. This reluctance causes intense suffering for thousands of prisoners on a daily basis. It constitutes cruel, inhumane and degrading treatment and is a breach of the Department’s duty of care.

The reality is that withholding treatment from patients in severe pain is a form of psychological torture.  Since there is an official regulation justifying this policy, this is institutionalised torture – due to tangible negligence by government officials.

Democracies like to use ‘clean’ torture techniques – leaving no visible signs of the suffering they cause. But if we look more closely, there are signs. Most of these victims leave prison with substantially fewer teeth than they started with.  But who’s counting?  Not the Corrections Department, that’s for sure.

Torture in New Zealand 3 – prison doctors forced to breach medical ethics

In 2009 Dr Michael Roguski and Fleur Chauvel released a report titled The Effects of Imprisonment on Inmates and their Families Health and Wellbeing.  They interviewed 63 New Zealand inmates about their medical treatment in prison and provided a number of case studies. Here’s one about a male prisoner who had been prescribed anti-anxiety and anti-depression medication for a number of years prior to coming to prison. While in the community, he had monthly appointments with his GP and saw his psychiatrist every six months.  The prisoner wrote:

“When I arrived at the prison they removed all my antidepressants. They said that I might be stood over for them. I was unable to sleep so after about a week they gave me antihistamines. It didn’t really help… I was too anxious. I was not sleeping for days on end. I was at maximum despair. I could feel myself going downhill in this negative environment. 

“After about a month they gave me a different antidepressant from the one I was on on the outside. But it was a really low dose and things didn’t improve. Another two months went by. I was in agony and I was put in At Risk as I’d started spinning out. I couldn’t see any way out. A week after going to At Risk the doctor came and visited me and he prescribed the same meds I was on on the outside. Yeah, it was a real bad time. I was in agony.” (Richard, Pākehā, 40–50 years)

Medical malpractice

At best, this is medical malpractice.  At worst, its torture.  New Zealanders who commit a crime and end up in prison are entitled to the same level of healthcare and quality in treatment they would receive if they remained in the community.  This is specified in Section 75 of the Corrections Act 2004 which states:

“A prisoner is entitled to receive medical treatment that is reasonably necessary” and “the standard of healthcare that is available to prisoners in a prison must be reasonably equivalent to the standard of healthcare available to the public”.

This requirement is reinforced by Regulation 73 of the Corrections Amendment Regulations 2013 which describes the ‘Duties of a Health Centre Manager’ (the head nurse) as follows:

“The health centre manager of a prison must take all practicable steps to maintain the physical and mental health of prisoners to a satisfactory standard… and must “ensure that medicine is administered to a prisoner in accordance with his or her medical needs”.

Corrections’ Medicines Policy

However, the Corrections Department largely ignores these statutory requirements by making up a prison ‘Medicines Policy’ which, in effect, tells doctors and nurses to ignore their nursing and medical ethics.  For instance, paragraph 6.1.1 of the Medicines Policy tells doctors that:

“Prescribing medication that can be misused/abused or has some economic value in a prison environment (or example benzodiazepines, opioids, zopiclone) is actively discouraged. A clinically suitable alternative medication or treatment option is preferred.”

The systematic denial of opiates and other clinically appropriate medication is discussed in Torture in New Zealand 2 – forcing prisoners into withdrawal. It causes serious distress to the prisoner without leaving any visible evidence of the harm and suffering it causes.  And, it is incompatible with the legislation described above.  It also appears to breach Section 151 of the Crimes Act which requires anyone:

“who has actual care or charge of a person who is a vulnerable adult to  provide that person with necessaries; and to take reasonable steps to protect that person from injury”.

Although caution has to be taken when prescribing potentially addictive medication, members of the public are not generally denied opiates, or mental health medications, just because they are open to abuse or potentially tradable. But prisoners are.  This ‘discouraged medication’ policy negates any possibility that prisoners can receive an equivalent level of care to patients in the community.

The Medical Code of Ethics

In addition to potential breaches of human rights, the Crimes Act and the Corrections Act, the denial of medication to prisoners is also incompatible with doctors’ medical ethics. For instance, the New Zealand Medical Code of Ethics contains 12 Principles and 44 Professional Responsibilities.

The first principle is:

“Consider the health and well-being of the patient to be your first priority.” 

If doctors fail to prescribe clinically appropriate medication because of the Department’s concern that medicines may be traded, then rules established by prison management have become the doctor’s first priority – not the well-being of the patient.

Recommendation number 7 states:

“When a patient is accepted for care, doctors should render medical service to that person without discrimination (as defined by the Human Rights Act).”

When prisoners in severe pain or with mental health problems are not allowed certain medication simply because they are in prison, that constitutes discrimination.

Professional responsibility number 37 states:

“Doctors should not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman, or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty.”

Denying appropriate painkilling medication to patients in severe pain; or removing anti-psychotic and anti-depressant medication from prisoners who need it is inherently cruel and inhuman. Doctors are responsible for their own clinical practice, but the problem ultimately lies with the Department’s ‘discouraged medication’ policy – and the punitive culture which surrounds it. It seems doctors who follow this policy are unwittingly performing enhanced pharmacological torture on physically and psychologically vulnerable prisoners – in the process, they are completely ignoring their medical ethics.