Speaking Notes for Mr. Howard Sapers, A Legacy of Missed Opportunities: The Case of Ashley Smith: Health Law Institute Open Seminar Series 2011-11-23


Introductory Comments

I would like to thank the University of Alberta, and the Health Law Institute for inviting me to be here today to provide some remarks and reflections about the death of 19 year old Ashley Smith who died in custody just over four years ago and what we could learn from her death with respect to responding to offenders with mental health concerns and preventing deaths in custody.

As Correctional Investigator, my Office functions as an ombudsman for federally sentenced offenders, those serving sentences of two years or more. I am authorized under Part III of the Corrections and Conditional Release Act to conduct investigations into problems of offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada. In essence, my Office exists in order to help ensure that federal correctional practice is performed in compliance with the law, and in adherence to international and domestic human rights standards for the treatment of offenders.

The legislation that governs my office provides broad powers regarding the response to complaints and the investigation process. Decisions to commence or terminate, as well as the methods used to conduct an investigation, are under my discretion. Investigations may be commenced in response to a complaint made by or on behalf of an offender, at the request of the Minister, or on my own initiative. These broad authorities are very important to consider in the context of mental health and preventable deaths in custody.

That’s because offenders do not typically call my Office stating that they have mental health concerns which are not being met or that a death is imminent. Investigations into these matters normally arise in the context of other investigations conducted by the Office, observations by Investigators during on-site visits, monitoring of daily incident reporting, and reviews of internal CSC reports.

Some of the most marginalized groups in society, including the impoverished, the poorly educated, the mentally disordered, the addicted, and increasingly, those of Aboriginal heritage, are over represented within the federal offender population. Addressing mental health needs of this population is one of the greatest challenges that correctional authorities face. Meeting this challenge requires a 'whole of corrections’ approach. It requires appropriate staff who are properly trained, physical environments that support treatment, adequate resources, and governance structures and accountability measures to ensure legal compliance and best practices.

I would like to set the context for my remarks about the death of Ashley Smith by providing some background on mental health and corrections and where the Correctional Service of Canada stands in its efforts to prevent deaths in custody.

Mental Health

Offenders with mental health concerns represent a significant and growing portion of the offender population. At admission to CSC custody:

  • 38.4% of male inmates reported or were assessed as having symptoms requiring possible mental health intervention
  • 29% scored high on scales assessing depression and hopelessness
  • 20% agreed with at least one item on the current or historical suicide indicator scale
  • 30% of women have previous histories of self-harm and suicide attempts

Offenders with mental health concerns often engage in behaviours that are considered maladaptive or disruptive in the correctional environment, including: not following instructions, unhygienic behaviours, compulsive, impulsive or unusual responses to otherwise routine interactions, aggression and, self-injury. Many offenders with mental health concerns also have histories including personal trauma and significant substance abuse.

Prisons are increasingly crowded, noisy and chaotic places. Daily routines may change without warning. Conditions of confinement in a prison may actually serve to induce or amplify mental health symptoms in some offenders. Interactions and interventions by correctional staff typically focus on the inappropriate behaviour itself rather than underlying causes. My Office continues to see cases where offenders displaying symptoms of their mental illness are met with security-based, not therapeutic, interventions.

Offenders with mental health concerns continue to be placed on segregation status for prolonged periods of time. While in segregation, offenders are typically locked in their cell for 23 out of every 24 hours, isolated from others and have limited interaction with mental health professionals and other correctional staff. International literature on segregation indicates a number of negative physiological and psychological effects, which lead to changes in appetite, sleep patterns, physical discomfort, self-harm and even suicide attempts.

Too many offenders who engage in chronically self-injurious behaviours spend significant periods of time in physical restraints in addition to prolonged periods of time in segregation. Some offenders have come to rely on physical restraints to self-manage their behaviours. Managing chronic self-harming behaviours in the prison setting is particularly difficult and has direct implications on both the offenders and staff involved. The issue of staff burn out and the need for respite is an operational reality in correctional settings throughout the system.

Deaths in Custody

In a typical year, perhaps 60 offenders will die while in federal custody. The majority will die from natural causes, some will overdose, some will be murdered and sadly, approximately one per month will take their own life.

Between 1999 and 2009, the prison suicide rate was more than 7 times the national rate of suicides in the general population. Suicides in federal custody are most often the result of strangulation. Those who commit suicide are more likely to have a history of mental health concerns, history of suicidal attempts or ideation, and/ or substance abuse.

Findings from CSC ’s 2009-2010 Annual Inmate Suicide Report concerning 9 deaths found the following:

  • all nine of the suicide victims reported abuse during childhood or adolescence;
  • seven had ongoing substance abuse problems, and five had committed drug-related crimes;
  • seven had an identified mental disorder, 2 others were considered to have mental health problems but had not received a formal diagnosis;
  • seven had been diagnosed with depression at one time or another. All 9 were prescribed anti-depressants;
  • seven had made at least on suicide attempt in the past;
  • all nine committed crimes with violence;
  • all nine died of hanging or asphyxiation;
  • seven were on general population ranges;
  • six had little or no community support; and,
  • none were recognized as being at risk for suicide or placed on suicide watch at the time of their death

In my Office’s Final Assessment of the Correctional Service of Canada’s Response to Deaths in Custody , significant concerns were raised with the Service’s ability to identify or act on pre-indicators of suicide, such as: sudden changes to an inmate’s mood, recent or past victimization, unusual behaviour, and past suicide attempts or ideation.

Modifications to the physical infrastructure of cells, to remove potential points of suspension, have been included in plans to retrofit and upgrade many of our federal penitentiaries. Despite modifications, a determined individual may still be able to exploit the built environment to achieve self-harm.

Issues of confidentiality, privacy and conflicting priorities continue to contribute to health and mental health care professionals operating in virtual silos, separated from security staff. In some cases, offenders with mental health concerns may express a desire to end their life in therapeutic sessions with mental health professionals and these concerns will not be shared with security staff. The issue of confidentiality is a serious one, but it is becoming increasingly important to find ways of communicating potential risks with all staff without violating professional standards or patient privacy, in order to prevent deaths.

Dynamic security, that is meaningful supervision and constructive interactions between inmates and frontline staff, is important as it establishes rapport, and provides an opportunity to observe first hand any changes in offender behaviour that may indicate a risk for suicide.

The timeliness and appropriateness of the emergency response by front line staff upon discovery of an offender in distress is likely the number one determinant of the outcome. Too many fatalities in custody have been the result of an emergency response that has been shown to be inadequate. Whether it is a lack of emergency call buttons in cells, inadequate training for staff, or lengthy time lapses between discovery of the emergency, initiation of life-saving measures, and the arrival of outside paramedics, the result can be a death which may have been prevented.

With the preceding in mind, I now to turn to Ashley’s story.

Background - Ashley Smith

As a troubled and defiant teenager, Ashley Smith’s journey through the youth court, probation, corrections, social and health care systems started at an early age. While in youth custody she incurred 70 additional criminal charges resulting from her oppositional behaviour, was 'tasered’, placed in a restraint known as 'the wrap’ and spent the majority of her stay in what was euphemistically called the Therapeutic Quiet Unit, or segregation.

When she turned 18, Ashley was transferred to adult custody and her accumulated youth convictions were converted to a six-year adult sentence to be served in a federal penitentiary. While in adult custody she continued to attract new charges, and was involved in over 160 security incidents, most of which related to her self-harming behaviours. She frequently fashioned tools for self harm and ligatures, often hiding the pieces of glass, screws, and cloth in her body cavities.

Initially, staff responded immediately to the presence of objects used for self-harm and would negotiate with Ashley to hand over the articles. When attempts to negotiate failed, staff would (on most occasions) enter Ashley’s cell and use force, as required, to remove ligatures or retrieve other items. This usually involved the use of physical handling, inflammatory spray, or restraints. Ashley was usually uncooperative (grabbing, spitting, kicking or biting staff) during these interventions.

Ashley was housed continuously on segregation status due to her self-harming and challenging behaviours. In the space of less than one year, Ashley was moved 17 times amongst and between three federal penitentiaries, two treatment centres, two external hospitals, and one provincial correctional facility. The majority of these institutional transfers occurred in order to address administrative issues such as cell availability, incompatible inmates and staff fatigue, and had little or nothing to do with Ashley’s needs.

Even though policy requires timely reviews of segregation placement, Ashley never benefited from the mandated 60 day review because she never stayed in one place long enough. Every time she was moved, the segregation clock was restarted despite the fact that she was maintained on 23 hour lock-up for practically her entire 11.5 months of federal incarceration.

The mental health care Ashley received differed from one institution to another. She would often not cooperate or consent to assessment and continued with her maladaptive, disruptive and self-injurious behaviours. As a result, a full assessment was never completed and a comprehensive treatment plan was never put in place to address her mental health needs.

Ashley’s behaviours began to exhaust front-line staff. Staff complained that Ashley would at times play with the ligatures around her neck by tying them in a bow-like fashion and then taunt them. There were also times when she would wrap a ligature around her neck and “pretend” to be unconscious, and then respond aggressively to staff once they had entered her cell. Some staff indicated that they were growing more and more uncertain as to when to intervene in these situations.

In August 2007, Ashley was transferred back to Grand Valley Institution for Women, where her mental health continued to deteriorate. In October of 2007, Ashley was identified by an institutional psychologist as being highly suicidal. Staff monitoring Ashley in her cell was not provided this crucial piece of information.

In the hours just prior to her death, Ashley spoke directly to a Primary Worker of her strong desire to end her life. Not long after this Ashley tied a ligature around her neck and positioned herself between her bed and the wall, with her back facing the door. Staff failed to respond immediately to her resulting medical distress and Ashley Smith died of asphyxiation on October 19, 2007.

The tragic death of 19 year old Ashley Smith is the result of a number of factors. Ashley’s risky, self-injurious, and physically aggressive behaviours escalated while in custody, resulting in additional criminal charges, which resulted in adding time to her sentence and increased security. Any trusting relationships that Ashley developed were disrupted by institutional transfers, and her increasingly defiant behaviours were met with more restrictive conditions of confinement. It had become a contest of will, which Ashley ultimately lost.

My report, A Preventable Death , included 16 recommendations in response to the death of Ashley Smith. The findings and recommendations pointed to a number of missed opportunities and areas for improvement, including:

  • Compliance with law and policy in correctional operations;
  • Responses to medical emergencies;
  • Use of force interventions;
  • Governance in women's corrections;
  • CSC inmate complaint and grievance procedures;
  • Offender transfer process;
  • Segregation policy and practice; and
  • Delivery of health care, including mental health services.

Where are we now?

In the four years since Ashley Smith’s death, the Correctional Service of Canada has made significant changes in policy and practice, and implemented a number of new activities and projects with the hopes of addressing the issues raised and gaps identified in A Preventable Death , and other systemic investigations and reports.

Significant initiatives have been implemented to address mental health and deaths in custody, including:

  • commissioning an independent and expert review of prolonged segregation;
  • providing mental health training to correctional staff;
  • enhancing primary institutional mental health care;
  • enhanced mental health reviews of long-term segregation placements;
  • revising and updating policies on self-harm, use of physical restraints, and informed consent;
  • implementing a computerized mental health screening and assessment system at admission;
  • clinical discharge planning to support mentally disordered offenders being released into the community;
  • the addition of a stand-to count in the evening hours;
  • installation of Automatic External Defibrillators ( AED s) in all federal correctional institutions; and,
  • increased emphasis on emergency response.

Despite improvements in a number of areas, the Correctional Service continues to struggle with:

  • the recruitment and retention of mental health professionals;
  • aging and inappropriate infrastructure;
  • lack of 24/7 health care coverage;
  • information sharing between health and correctional staff;
  • administrative segregation placements for offenders with mental health concerns; and,
  • developing national frameworks aimed at improving accountability and performance in both mental health and the prevention of deaths in custody.

Concluding Remarks

Ashley Smith’s experience in federal custody was one marked by missed opportunities. Her behaviour was primarily viewed as requiring security, as opposed to therapeutic interventions. Responses to incidents of self-harm were inconsistent and often contrary to her needs. Staff was not always given the information or the support to do what was required.

While some improvements have been made, the accountability and governance structures that contributed to Ashley’s untimely death are still largely in place today. As the number of offenders with mental health concerns continues to grow, the lessons learned from Ashley Smith’s case become increasingly important.

Offenders with mental health concerns represent some of the most at risk within our prison system. While some are self-aware and can identify the situations and circumstances that contribute to or exacerbate their mental health symptoms, others may not have insight into their risks and needs. Some will have the benefit of a diagnosis or a treatment plan, but many will have neither. Some will be assessed at intake as having no identified issues, only to develop symptoms as they experience incarceration.

Prisons are not hospitals, but some inmates are in fact patients. As long as the courts continue to send the mentally ill to prison, the Service must continue to improve its capacity. Treatment and rehabilitation supports, as well as a continuum of care that bridges incarceration and transition to the community, are critical to increasing the chances of a released offender being able to live without coming into conflict with the law.

As we look toward the future, we must think about whom we incarcerate and why, and whether we are getting the best return on the money we are investing in public safety. We must continue to question if the criminal justice system is the most appropriate, or even the most cost effective mechanism for providing access to mental health care and support. Ultimately, I believe we require a much more strategic and integrated response from our health, justice and welfare systems to those whose mental health needs put them at risk of social conflict.

Thank you once again for inviting me and allowing me to share a few thoughts.

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