Notes for an Address
Mr. Howard Sapers, Correctional Investigator of Canada

Health Care and Federal Corrections: An Ombudsman’s Perspective

Custody and Caring 13th Biennial International Conference
On the Nurse’s Role in the Criminal Justice System

Saskatoon, SK
October 3, 2013

Thank you for the invitation to be here with you today. I want to acknowledge the organizers – the College of Nursing, University of Saskatchewan – as well as the sponsors of this Conference, including the Correctional Service of Canada.

I have tremendous respect and admiration for health care professionals working in the criminal justice system. Your jobs are exceptionally difficult and demanding. Caring and compassion are not readily recognized or acknowledged in the criminal justice sector. I applaud the effort, innovation and initiative that bring you together at this highly regarded event.

I have four objectives in mind in speaking with you today in my capacity as Correctional Investigator of Canada. First, I want to explore the profile of the federal inmate population and how its health care needs are met by the Correctional Service of Canada.

A discussion of the challenges, conflicts and dilemmas that arise between health and security-centred perspectives on inmate management is my second order of business.

Thirdly, I will draw on a recently released investigation by my Office examining chronic self-injury among federally sentenced women to illustrate some of my concerns about managing mental health in a prison setting.

In keeping with the themes and objectives of this conference, I will conclude with some suggestions about what I consider to be among the most serious and urgent requirements facing correctional health care. To that end, some future directions for reform will be offered.

Allow me first to make a few introductory comments about my role as Correctional Investigator and the mandate of my Office. This “Cole’s Notes” version of what I do may help situate some of my more critical comments about the accessibility and quality of health care service delivery in corrections.

First, a slight detour. The Office was established in 1973 following a Commission of Inquiry into the 1971 riot at Kingston Penitentiary. As most of you know, KP closed at the end of September. This is noteworthy for a number of reasons, including one you may not be aware of. Inger Hansen, Canada’s first Correctional Investigator appointed in ’73 passed away this week, just as the last inmates were being transferred from Kingston Pen. Inger’s death is a solemn reminder of an end of an era in Canadian corrections. Inger will be missed by all who knew her.

The Office of the Correctional Investigator functions as an ombudsman for federally sentenced offenders in Canada, those serving sentences of two years or more.

As Correctional Investigator, I have statutory authority to conduct investigations into issues raised by offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada. Decisions to commence, or terminate, as well as the methods used to conduct an investigation, are at my discretion.

I report to Parliament through the Minister of Public Safety on the individual and systemic concerns that offenders bring to my Office, and on the ability of the CSC to implement solutions. I am fully independent of the CSC and the Department of Public Safety.

My Office is an oversight, not an advocacy body; my staff does not take sides when investigating complaints. We look for compliance, fairness and legality. We view corrections through a human rights lens.

My staff have access to all facilities, records and personnel of the CSC. Our legislation provides for penalties for anyone who attempts to impede our work.

These are broad authorities and help us in the pursuit of fair, accountable and effective corrections. The Office is not an armchair critic of the CSC. It is an essential part of the legal framework that governs federal correctional practice.

On an annual basis my Office receives and addresses thousands of offender complaints, contacts and inquires. The Office has 35 permanent staff, most of whom are directly involved in the day-to-day resolution of offender complaints.

My team of investigators regularly visit federal institutions to meet with both offenders and staff. In 2012-13, investigators cumulatively spent 337 days in federal penitentiaries and interviewed more than 1,500 offenders. Last year, the Office reviewed 165 cases involving incidents of inmate serious bodily injury or death. Over 1,400 use of force files were reviewed, including an increasing proportion of use of force incidents involving mental health concerns.

Health care remains the single most frequent area of offender complaint to my Office. In fact, it consistently tops the list of concerns brought forward by inmates to my Office. When we break that number down a bit further, it is in the area of access to health care that inmates most frequently complain. Investigations and findings from prisons across the country confirm that timely access and quality of care remains problematic, especially in more remote penitentiaries.

I am not surprised that concerns about health care often elicit a strong reaction from the inmate population. In a prison setting, inmates have lots of time to think about their health and it’s one of the few areas in which they may exercise some degree of personal control — they still "own" their health.

For some, prison may be one of the few times in their life when there is some degree of continuity of care. On the other hand, a term of imprisonment, which may mean frequent transfers between institutions, can result in interruptions in treatment, changes in medication or disconnects between institutional care and community care upon release. On this last point, provincial and territorial health systems have much to contribute in order to ensure continuity of care.

While in custody, offenders have very little practical choice over who attends to their health needs, how or where that care is administered or what constitutes an “essential” health care item, service or need. Unlike most of us when we need physical or mental health care, inmates are offenders first and patients second. Deprived of their liberty, they cannot “shop” around for health care services or health care providers. They take what they can get, when they can get it.

Notwithstanding, a high standard of care is required, even if for no other reason than good prison health is good public health.

I want to be clear that these are not criticisms of those providing direct health care services to inmates, but rather of the factors that arise from how prison health care services are organized, structured and delivered in federal penitentiaries.

In Canada, unlike some other jurisdictions, there is no separate or distinct health care agency that directly provides for the health care needs of federally sentenced offenders. Persons under federal custody are excluded from the Canada Health Act and they are not covered by provincial health care systems.

Jurisdictional and constitutional realities mean that the Correctional Service of Canada is responsible for ensuring reasonable inmate access to health care in conformity with professionally accepted standards. The professionally accepted standard found in Canadian legislation is high – as it should be. The CSC is further obligated to consider an offender's state of health and health care needs in all decisions, including placements, transfer, segregation, discipline and community release and supervision.

These are important legislated obligations that cannot be ignored no matter how challenging they can be.

Domestically and internationally, governance, accountability and funding issues are driving a series of reforms in how correctional health care is administered, where those services are delivered and by whom.

As you heard yesterday, CSC is making progress in this area and is in the throes of governance reform. I am encouraged, but not entirely satisfied.

Alternative models for prison health care service delivery are in place in a number of countries – Norway, France, Australia and the United Kingdom (to name a few) – and can be found more close to home in provincial jurisdictions such as Ontario, British Columbia, Alberta and Nova Scotia.

In these systems, inmate health care may be delivered and regulated by national or provincial health care agencies, not correctional services. The delivery of health services by agencies outside the prison system means less chance of role conflict or confusion between health and correctional mandates. In some models, health care professionals report to health care administrators. Lines of authority, decision-making, oversight and reporting are clear, consistent and distinct from those of corrections.

The chance of security priorities over-riding clinical concerns is considerably reduced in such models.

I remain convinced that federal corrections has some catching up to do insofar as there are successfully implemented alternatives in the governance and administration of prison-based health services. CSC can benefit from the experience of others.

This is particularly true when thinking about the delivery of mental health care. Despite having achieved accreditation of physical health services and notwithstanding the ongoing realignment of health care functions and reporting relationships at CSC’s five treatment centers, the system as it operates now still lacks integration and is subject to both individual and systemic limitations.

It is no secret that the inmate population is disproportionately comprised of persons from disadvantaged or vulnerable backgrounds. Offenders often arrive in prison with chronic or unaddressed health conditions. Their poor physical health is frequently exacerbated by histories of trauma, substance abuse or addiction issues, co-morbidities that are common among those living on the margins of society.

In correctional language, it is a high-risk, high-needs population that requires a wide variety of services and supports.

The federal inmate profile is especially revealing from a determinants of health perspective:

  • One in five federal inmates are aged 50 or older. A significant number will require specialized and expensive care.
  • 23% of the total inmate population is Aboriginal, despite comprising just 4% of the general Canadian population.
  • 9% of inmates are Black Canadians; almost triple their representation rates in the community.
  • In the last 5 years, the number of federally incarcerated women has increased by almost 40%.
  • The number of Aboriginal women in federal custody has grown a staggering 93% in ten years. One in three federally sentenced women is now of Aboriginal ancestry.
  • The average level of educational attainment upon admission to a federal penitentiary is Grade 8.
  • Close to 70% of federally sentenced women report histories of sexual abuse and 86% have been physically abused at some point in their life.
  • Before prison, most offenders are chronically under-employed.
  • Addiction or substance abuse plagues 80% of offenders. Two-thirds of federal offenders were intoxicated when they committed their index offence.
  • 31% of the inmate population is a carrier of Hepatitis C and 5% are HIV positive.
  • At admission, nearly 40% of male offenders require further assessment to determine if they have mental health needs. 30% of women offenders have previously been hospitalized for psychiatric reasons.
  • In FY 2011-12, the Correctional Service delivered at least one institutional mental health service to 48.3% of the total inmate population, with 47% of Aboriginal offenders and 75% of federally sentenced women receiving services in the last fiscal year.

These data point to the significant resource and capacity challenges facing Canada's correctional authority. In most cases, the numbers are probably lower than the reality, particularly measures of mental health needs, which tend to be under-reported in a prison setting. 

Providing prison-based health care is an increasingly complex and expensive endeavour. The total annual health services expenditure for federal corrections now exceeds $216M. The cost to provide physical health care to inmates is about $150M annually. The annual cost to operate CSC’s five treatment centres, with a combined capacity of 675 beds, is approximately $108 million.

On a per capita basis, data that is now five years old indicates that the average annual physical health care costs per inmate varies from a low of $6.1K in Ontario to a high of $9.2K in the Atlantic Region. Inmate health care costs are high and rising relative to the needs of a population that is growing older and sicker behind bars.

It is not an accident that the CSC has grown into the largest single employer of nurses and psychologists in the federal public service. Today, the Correctional Service employs a total of approximately 1,200 health care professionals, of which the vast majority are nurses followed by psychologists, pharmacists, medical doctors and social workers.

I have reported previously that CSC faces serious staffing, recruitment and retention challenges that reflect many of the concerns addressed at this conference – scope of practice, licensing and accreditation, issues related to rates of pay, professional development and terms and conditions of employment. As much as I can tell, these are common and prevailing concerns in many countries and their correctional systems.

For FY 2011-12, the national vacancy rate for all health care positions in CSC was just over 8.5%. This number is probably a low estimate of vacancies when compared to actual need, as many long term vacancies have resulted in positions simply being eliminated. The psychologist vacancy rate in 2011-12 was 16% or 51 positions.

In reality, this rate is much higher considering that 50 of 329 psychologist positions were filled by incumbents who are non-licensed staff (or “under-fills”) and cannot deliver the same level or range of services as licensed psychologists. In other words, nearly one-third of CSC’s total psychologist staff complement is either vacant or “under-filled.”1

As health care professionals, you are challenged to provide care in a setting with a mission and mandate designed for other purposes – primarily security and control. Resource and infrastructure limitations impose unnatural barriers in terms of what can be reasonably and practicably accomplished.

I can’t help but to think how incredibly difficult, even frustrating, it must be to build a therapeutic and trusting nurse-patient relationship in a setting where institutional security interests are paramount, and quite often, over-riding concerns.

Research confirms that conditions of work are strong predictors of job satisfaction. Heavy workloads, inadequate staffing and restricted access to equipment, technology and resources define the correctional nursing experience. A 2010 study exploring work-life issues among correctional nurses in Ontario confirms that workplace tension, overload and role conflict can lead to job stress and burnout.

Ironically perhaps, the same factors that can make correctional nursing so challenging – professional autonomy, respectful relationships with peers, overcoming patient care barriers and garnering organizational support – can also be a source of strength, pride and satisfaction.

It is not lost on me that many of the workplace concerns and challenges that correctional health care professionals face are organizational, systemic or structural in nature. Scopes of practice, attractive and competitive salaries, balanced workloads (including percentage of time spent on direct vs. indirect care), support for continuing education and skills training, participation in professional organizations, mobility of licensing and qualifications, all suggest that governance, along with organizational and administrative support, are critical elements of job satisfaction for correctional health care professionals.

The unique structure, culture and purpose of prison create inherent role conflict and confusion and invites ethical and professional dilemmas. These conflicts – security vs. care, penitentiary vs. hospital, assistance vs. control – arise from the fact that prisons are not intended to be hospitals, but some inmates are in fact patients.

Care and compassion can seem antithetic to the pursuit and aims of punishment and correction. The conditions of confinement that mark the modern prison – the degradations of over-crowding; the spread of infectious disease; the warehousing of society’s most vulnerable; the observation, segregation and isolation cells used to manage or contain mental illness; the death that often comes without dignity behind prison bars – all reflect the lack of a health-centred focus in design and purpose.

Double-bunking, prison self-injury, use of force incidents, segregation, illicit drug use, attempted and completed acts of suicide add to the complexities of managing health care in an inherently punitive and unpredictable setting.

My Office continues to report on systemic issues of concern surrounding deaths in custody. These include: timely and appropriate response to medical emergencies; information-sharing between clinical and frontline staff; monitoring and management of suicidal and chronic self-injurious offenders; and, quality of CSC investigative reports and corrective measures.

In the period between FY 2002-2003 and FY 2012-2013, there were 583 deaths in CSC facilities. Over 70% of all deaths in federal custody over this time were attributable to “natural” causes.

An investigation into the Service’s mortality review process (MRP) for natural cause deaths is currently underway by my Office.

I have previously expressed concern that the MRP falls considerably short of meeting legislative or investigative standards. For instance, having now reviewed hundreds of these files, I am struck by the fact mortality reviews hardly ever contain a specific finding or recommendation that speaks to quality or standard of health care. I will more fully report on my findings later this fall.

The incidence of prison self-injury in federal penitentiaries has more than tripled in the last five years. An investigative report titled Risky Business was released earlier this week by my Office. It assesses the response of Correctional Service to incidents of chronic self-injury among eight federally sentenced women. I would like to report some of the findings and recommendations of Risky Business to you today.

A total of 802 institutional security incidents were recorded for these eight women over the 30-month period of investigation. Just over half of these incidents were reported as self-injury or suicidal events. Nearly one-third of the documented self-injury incidents involved a use of force intervention (e.g. physical handling, pepper spray, use of restraints).

Reminiscent of Ashley Smith’s case, six women were convicted of other criminal offences arising from their behaviour in custody and which resulted in time added to their sentence. Three were convicted for offences that occurred during staff interventions in acts of self-injury.

We found considerable tension between mental health care and security-focused interventions. Indeed, perceived security concerns, regardless of individual risk, tended to trump clinical or mental health care needs. Seven of the women served considerable periods of time under some form of seclusion.

Five women were routinely placed in administrative segregation following acts of self-injury. Resistive or assaultive behaviour most often occurred after staff intervened in an act of self-injury and was most frequently observed in context of mandatory strip searching required for an administrative segregation or clinical seclusion placement.

In general, security and control responses were found to be disproportionate to the risk presented, inappropriate from a mental health needs perspective and counterproductive to therapeutic treatment aims. For example, for some women, prolonged periods of seclusion and isolation exacerbated the frequency and severity of their self-injury and/or escalated their resort to other resistive behaviours.

Similarly, the frequent use of physical restraint equipment to gain control and to manage or prevent self-injury was often found to be problematic. Although CSC policy directs that physical restraints are neither a medical or clinical measure, some of the treatment plans provided for the “consensual” use of restraints to manage or prevent self-injury. In some extreme cases, reliance on the near perpetual use of physical restraints was justified as a “life-preserving” measure.

The report contains sixteen recommendations including:

  • enhanced training for staff working with chronic self-injurious offenders;
  • strengthened monitoring and reporting on the use of physical restraints in the management of prison self-injury;
  • prohibition on placing self-injurious offenders in conditions of prolonged seclusion or segregation;
  • appointment of an independent patient advocate or quality care coordinator at each of the five regional treatment centres, inclusive of the Churchill Unit, RPC, Prairies; and
  • transfer of the most acute and high risk individuals to hospital settings.

While the Minister of Public Safety has agreed that individuals with chronic and complex mental health needs should not be in prisons, I await CSC’s official response.

It is unfair to expect corrections to do the impossible. Afterall, corrections officials are in the business of running prisons, not hospitals. Notwithstanding, prisons do house some seriously ill people, and sometimes their health care needs exceed available services, capacities and resources.

This is particularly true when it comes to mental health. Given rising needs, there are far too few specially trained and dedicated psychiatric nurses employed by CSC. Training in mental health is too limited. Infrastructure is problematic. With one exception, there are no intermediate mental health care units available for male inmates. Self-injury continues to be managed as a behavioural or control issue rather than a sign or symptom of poor mental health.

That said, CSC recognizes its many challenges and has developed a good strategy for prison based mental health care. The strategic plan is good, but it must be fully embraced across the Service.

Before I conclude, I want to leave you with a few thoughts about what I believe to be among the most serious and urgent requirements for prison-based health care reform in Canada. This list is far from exhaustive or comprehensive, but it is a good starting point for initiating dialogue about priorities and reform.

First, let me come back to the need to urgently and seriously explore alternative mental health care service delivery models rather than relying on institutions that were never designed to care for individuals with serious mental health issues. These offenders should be transferred to community psychiatric or forensic hospitals as a matter of priority.

Second, the use of prolonged isolation or segregation to manage offenders at risk of suicide or self-injury as well as offenders with acute mental health issues should be prohibited. Such practices are not safe or humane.

Thirdly, it is time for CSC to fully implement its Mental Health Strategic Plan and develop intermediate mental health care capacity across the country.

Fourth, in my opinion, correctional administrators could benefit from the appointment of independent patient advocates or quality care coordinators, particularly with respect to forensic or psychiatric treatment settings. While I appreciate that health care professionals routinely act as advocates for their patients, additional oversight will help the Service meet the most rigorous standards of professional and community practice.

Finally, all medium, maximum and multi-level prisons should have primary health care providers, on site, on a 24-7 basis. There are simply too many medical emergencies and complex care needs to be handled part-time.

Concluding Remarks

As health care professionals, you are expected to provide and maintain high standards of care. On a daily basis, you are asked to perform activities, assessments or functions that may raise conflicts in the nurse-patient relationship. You are generalists in a specialized environment providing a range of interventions from health promotion and prevention through to chronic disease management and palliation.

Your work requires a high degree of creativity, flexibility, personal and professional autonomy that may, at times, blur conventional scopes of practice.

You may face situations of competing values, loyalties and obligations that can be the source of workplace angst and conflict.

You must preserve the integrity of the nursing code of ethics within the punitive structures of human confinement. You must advocate for the best interests of people that so many others condemn. Maintaining patient privacy and confidentiality and establishing a relationship of trust can conflict with ever-pervasive security requirements. With your peers and administrators, you seem to be endlessly engaged in struggles for professional respect, equivalence and recognition.

From my own experience serving as prison ombudsman, I also understand that the most rewarding work can happen in the most demanding of settings. I suspect that providing health care in prisons proves that point on a daily basis.

I want to thank you again for inviting me to here with you and for your attention. I wish you continued strength and success in your work, and I look forward to your questions and comments.

 

1 CSC, Health Services Sector 2011-2012 Performance Measurement Report, November 2012.