The anticipation of an investigation: The effects of expecting investigations after a death from natural causes in prison custody

Abstract

The growing number of deaths from natural causes in prison custody adds urgency to the need to consider what influences the behaviour of prison staff towards dying prisoners. This article identifies the effects on prisoners, their families and prison staff of defining quality end-of-life care as that which meets the expected requirements of an anticipated post-death investigation. Using data collected in two English prisons via ethnographic methods, it explores the practical consequences, emotional effects and bureaucratisation of death arising from the anticipation of an investigation. Taking its lead from research participants, it focuses on the influence of anticipating an investigation by the Prison and Probation Ombudsman, but also the effects of expecting police and coronial investigations. Analysing responses to anticipating an investigation reveals consequences for the care of prisoners, their families and prison staff, which are arguably unintended by the investigating bodies.

Introduction

Deaths in prison custody occur for several reasons, including suicide or, very rarely, homicide, but the majority result from natural causes. Understanding influences on the quality of end-of-life care in prison is therefore important. Deaths from natural causes accounted for 56% of the 286 deaths in prison custody in England and Wales in the year to March 2020. There were 1.9 deaths from natural causes per 1000 prisoners in this period (Ministry of Justice, 2020), an increase from 0.94 deaths from natural causes per 1000 prisoners in 2000 (Ministry of Justice, 2016). Some deaths from natural causes are sudden. When a death results from natural causes and is expected, there is the opportunity to analyse how the anticipation of an investigation affects the delivery of palliative care and the behaviour of prison staff towards the prisoner, and to consider whether the effects are necessarily the ones desired by the investigating bodies.

This article will consider what effect the anticipation of an investigation has on the care and treatment of prisoners expected to die from natural causes. In doing so, it contributes to practice in palliative care in prison and is relevant to policy makers and investigators, including the Prison and Probation Ombudsman (PPO). Particular attention will be paid to the work of the PPO since, of the three organisations charged with investigating deaths in prison custody, it is the PPO that deals specifically with deaths in detention.

Drawing on data collected in two prisons in the north of England, the anticipation of an investigation will be shown to have direct consequences for the quality of care for dying prisoners and their families. These arise both from prison staff expectations of the issues that will form the focus of the investigation but also from the anticipated process of the investigation itself. The PPOs investigation and subsequent report was mentioned by prison staff in a variety of roles, including governors, officers and healthcare professionals, and is specific to the prison setting. The article will suggest that the effects of anticipating an investigation are not always the ones expected. Rather, while the anticipation of an investigation can motivate efforts to provide additional support for dying prisoners, the actions taken in anticipation of the process of the investigation can also potentially undermine care for prisoners, their families and staff.

Background

When any death occurs in prison custody in England and Wales the prison is required to inform three organisations: the police, the coroner and the PPO. All three organisations have responsibility for investigating the circumstances of the death. These investigations are part of fulfilling the State’s duties under Article 2 (the right to life) of the European Convention on Human Rights (ECHR) and are undertaken regardless of any preliminary assessment of the cause of the death. When the deaths investigated are the result of a terminal diagnosis, relating to conditions such as cancers, organ diseases or degenerative illnesses, the individual may have been regarded as dying for weeks or months before their death occurs. A key component of the investigations is an assessment of the care they, and where relevant, their family, received during this period.

Regardless of the requirements for an investigation, dying from natural causes in prison is not the same as dying from natural causes in other settings (Aday and Wahidin, 2016; Burles et al., 2016; Dawes, 2002; Handtke and Wangmo, 2014; Turner et al., 2011; Wood, 2007). Turner and Peacock (2017), Bolger (2005) and Burles et al. (2016) all set out the difficulties of developing and delivering good palliative care in prison, although Turner and Peacock (2017) note that prisons have started to explore how palliative care provision for prisoners could be improved. Where age is a factor, older prisoners are generally in poorer health than their peers outside of the prison (Aday and Wahidin, 2016) and have less access to hospital services (Davies et al., 2020). In 2018, a House of Commons Health and Social Care Committee’s (2018) report on Prison Health found deaths from natural causes in prison often reflect the poor physical health of the prison population and that prisoners sometimes experience long delays in getting their health concerns addressed. In evidence to the select committee, the charity INQUEST (2020) showed prisoners in England have a mortality rate 50% higher than the general public (Health and Social Care Committee, 2018).

This higher mortality rate among prisoners is of particular concern because, as Girling and Seal (2016) argue, the ‘prisoners’ loss of liberty places a heavy responsibility on the State to ensure that they are adequately cared for’ (p. 216). The performance of this responsibility is rightly subject to scrutiny, through investigations and subject reviews by bodies such as the PPO, which explicitly seeks to make recommendations to improve future practice. Behind the investigations lies the implicit question of whether the death of someone in custody was precipitated by the action or inaction of employees of the state (Hood et al., 1999). As Liebling (2017) argues,

deaths in custody are, and should be, controversial because they raise issues of accountability, legitimacy, and quality of life, including safety, as well as questions about the quality of death for those who die of natural causes in prison as a result of their age or sentence. (p. 27)

The PPO is an independent body, funded by the government but with no statutory powers, whose role in fatal incidents is intended to meet the obligations for investigation arising from Article 2 of the ECHR (PPO, 2017). Its investigations are separate from those of the coroner, which must also take place whenever a death in custody occurs. It is the responsibility of the coroner, not the PPO, to determine the cause of death and of the police to undertake criminal investigations where relevant (PPO, 2019). The remit of the PPO is to establish the circumstances of the death, particularly how the deceased was managed by the relevant authorities, and to examine whether operational practices or policy should be changed to prevent a future death. Their remit includes assessing clinical care and a clinical reviewer, independent of the prison’s healthcare provider, is appointed to assess clinical issues related to the death (PPO, 2017).

When a death in prison custody results from natural causes, the PPO investigation particularly focuses on whether the prison has provided appropriate healthcare from the time at which a prisoner fell ill, the appropriateness of security measures in place to the risk posed by the prisoner, and whether the prisoner and their family have been treated with respect and sensitivity (PPO, 2019). By doing so, their investigations are intended to contribute to safer and fairer prison custody (PPO, 2019). In this regard,

Our investigations over the last few years have found that, by and large, prisons are doing all they can to ensure that prisoners die in a dignified and humane way with the care and support they require. However, this is by no means always the case and there are particular lessons to be learned about care planning, applications for compassionate release, the involvement of family and the use of restraints on prisoners who are terminally ill and at the end of their life. (PPO, 2019: 50)

The PPO is mandated to work with the coroner ‘to ensure as far as possible that the full facts are brought to light and any relevant failing is exposed, any commendable action or practice is identified, and any lessons from the death are made clear’ (PPO, 2017: 9). Their findings are presented to key stakeholders, including the prison governor, the prison’s head of healthcare, the family of the deceased, and the coroner.

Methodology

The data presented here are part of a larger study examining how the growing number of deaths from natural causes in prisons in England and Wales impacts on prison regimes, culture and relationships. The study also considered what factors determine how prison regimes and personnel respond to dying prisoners and deaths from natural causes. It is in this context that the influence of anticipating an investigation became apparent.

Using participant observation, semi-structured interviews and documentary analysis, fieldwork was conducted in two prisons in the north of England. One of these prisons was in the Long Term and High Security Estate (LTHSE), accommodating men sentenced for the most serious crimes and often serving very lengthy sentences. The other was a ‘Category B’ local prison, housing medium-risk male prisoners and those on remand. Each prison had some on-site healthcare provision. These prisons were selected because they had experienced a relatively high number of prisoner deaths from natural causes in the 5 years prior to the research: 13 in the ‘Category B’ prison and 33 in the LTHSE prison, the second highest in England and Wales (Ministry of Justice, 2016). The mean number of deaths per prison in England and Wales in this time period was five, and the median was three. In all, 108 prisons recorded at least one death from natural causes in that 5-year period, but only 31 prisons recorded more than 10 deaths.

Data were collected over a 12-month period, with analysis using NVivo 12 ongoing throughout. A thematic approach was taken to analysis, enabling patterns within the data to be identified, together with their relationship to each other and potential relevance to the research focus (Bryman, 2015). Over 290 hours of observations were conducted, in locations within the prison, including prison wings and prison healthcare centres. Fifteen interviews with staff were held. This included six prison officers (including four Family Liaison officers (FLOs)), three healthcare professionals, two governors, two chaplains, one custodial manager and one education worker. The semi-structured format of the interviews enabled interviewees to interpret questions and respond as they felt appropriate (Arksey and Knight, 1999; Rubin, 1995). Permission had been granted to interview up to three prisoners employed as carers in the LTHSE prison. In practice, there were fewer than expected prisoners with experience of this role, one of whom participated extensively in ethnographic conversations throughout the data collection such that it was felt no further information would be solicited during an interview. One semi-structured interview was recorded with another prisoner-carer. All interviews were recorded and transcribed by the researcher.

Documentary analysis focussed on official documents relating to prisoners dying of natural causes, the provisions for their care, and expected actions after a prisoner’s death from natural causes. This included several Prison Service Instructions (PSIs) and Prison Service Orders (PSOs) as well as reports by the PPO, Her Majesty’s Chief Inspector of Prisons and the Independent Monitoring Board for each fieldwork prison. In addition, Prison Rules (1999) and the ruling in R(Graham) vs Secretary of State for Justice (2007) were reviewed. Documents were thematically coded.

Ethical approval for the research was granted by the NHS Health Research Authority, Her Majesty’s Prison and Probation Service, and the University of York. One important ethical consideration was whether to include terminally ill prisoners as participants, and if so, to what extent any risks could be minimised. The literature on the ethical appropriateness of qualitative research with the terminally ill is inconclusive (See Barnett, 2001; de Raeve, 1994; Kendal et al., 2007; Lawton, 2001). As a result, it was decided to focus on conducting participant observation in the locations where interactions between staff and terminally or seriously ill prisoners take place, rather than on identifying individuals with a terminal diagnosis. In order to respect the confidentiality of prisoners, situations where confidential medical information might be overheard were not observed and a decision was taken not to have access to either medical or prison service records for any prisoner.

Given the nature of the research questions, it was not felt necessary to interview terminally or seriously ill prisoners, although the chosen methods allowed for ethnographic conversations which could, with the prisoner’s consent, be included in the research data. Informed consent was particularly important, and all participants were given at least 24 hours to decide whether they wished to participate, and their ongoing willingness was repeatedly checked. It was of concern that some participating prisoners could lose capacity to give informed consent during the course of data collection, in which case it was intended that no further observations would be conducted unless and until the prisoner regained the ability to consent. In practice, there was no ambiguity regarding a participant’s ability to consent and any observations with a participant were completed before their capacity to consent became doubtful. Pseudonyms are used throughout this article.

Findings

Data from interviews, ethnographic observations, PPO reports and Prison Service Instructions shows that the anticipation of an investigation has a number of effects, not all of which are to be expected. In this section, the role of the anticipated investigation in defining end-of-life care will be considered, followed by three types of effects (practical, emotional and bureaucratisation), which the anticipation of an investigation has on the experiences of dying prisoners, their families and the prison staff involved. These themes include actions undertaken in expectation of both the process and the anticipated focus of the investigation.

Prisoners and staff in various roles talked about several deaths that had occurred or were expected. Two pseudonymised cases in particular will be used to highlight some of the effects of anticipating an investigation. ‘Eddie’ was well-liked by fellow prisoners in the LTHSE prison, some of whom supported him to stay on the wing (Fieldnotes, LTHSE, 23 November 2017, 28 November 2017). He had received a terminal diagnosis around the time data collection began, and died while the data collection was ongoing, although for reasons of sensitivity did not directly participate in the study. Officers on Eddie’s wing also held him in high regard; he was described as a ‘decent prisoner’ (Fieldnote, LTHSE, 30 November 2018), and they facilitated him remaining on the wing out of respect for his wishes. This was in keeping with Crawley (2005) who suggests sympathy is more likely to be expressed by prisoner officers towards a cooperative prisoner.

‘Neil’ had died in the LTHSE prison before the research began, but his death was discussed by staff and prisoners alike. Unusually, he had arrived at the prison after a terminal diagnosis, having been transferred to be nearer family following a prognosis of 1 year to live. Neil was initially accommodated on a prison wing but was moved to the prison’s healthcare centre as he became weaker. From there, he was moved to the palliative care suite, where he died 8 weeks later (PPO, 2017).

The role of the anticipated investigation in defining quality end-of-life care

Of primary interest here is how the anticipated post-death investigation influenced participants’ understandings of acceptable end-of-life care in prison and informed their actions when caring for a dying prisoner. The expectation of an investigation after a death provided staff and prisoners with one way of informally evaluating care. In this context, care was defined by participants as meeting the standard a subsequent investigation would deem satisfactory. While prison staff expressed concern about having to appear in the coroner’s court, when the anticipation of an investigation informed care for a dying prisoner, it was the PPO investigation, and particularly their report, which was most frequently mentioned (Interviews 5, 13, 11, LTHSE; 10 Category B. Fieldnotes, Category B, 1 February 2017; LTHSE, 21 November 2017, 7 November 2017, 20 October 2017). While there were other ways of assessing the quality of end-of-life care, the prospect of an investigation after death, particularly the PPOs investigation and subsequent report, was mentioned by prison staff in a variety of roles, including governors, officers and healthcare professionals. This reveals most acutely the potential unintended consequences of an anticipated investigation which, unlike police or coroner’s inquiries, is specific to the prison setting.

For some staff the motivation for delivering high quality end-of-life care was informed by a reluctance to face criticism in the coroner’s court (Interviews 4 and 13, LTHSE). However other staff members, while aware an investigation would occur after a death, rejected it as motivation for caring behaviour. As one nurse said,

I don’t ever think about the investigation, because it’s irrelevant to me because I always do exactly the best I can ever do . . . but then some people I think, do think about the consequences but I don’t think it should be relevant because regardless of whether there’s going to be an investigation, you should be giving the best care. (Interview 10, Category B)

When participants were influenced by the anticipation of an investigation it served to shape the care given to dying prisoners by encouraging staff to prioritise the issues they thought would be of interest to the investigators. Particular attention was paid to appropriate risk assessments and the correct use of restraints for any prisoner receiving treatment outside the prison. This was not surprising given the frequency with which the PPO recommends improvements in this regard (Robinson, 2019). Also prioritised, with an awareness of the likely focus of the PPO’s investigation, were attempts to contact the prisoner’s family and provide them with support, to establish an agreed care plan and to ensure continuity of care for any prisoner who received treatment in an outside hospital or hospice. However, it was not only the anticipation of the outcomes of an investigation that could motivate behaviour, but also an awareness of the likely impact of the process of the investigation. The consequences of these priorities will be discussed below.

Practical consequences

The expectation of an investigation after a death in prison custody led to a number of practical actions with regard to the care of the dying prison. Staff and prisoners placed considerable emphasis on the need to have a care plan in place, knowing it was an expectation of the PPO (Fieldnotes, LTHSE, 14 June 2018, 30 November 2017). For healthcare staff, this included liaising with specialists outside the prison (Interview 1, Category B) and attending meetings at outside hospitals, depending on where the prisoner was being treated, to ensure continuity of care when they returned to the prison (Interview 12, LTHSE).

Other caring actions might be accelerated because of an awareness of the focus of a subsequent investigation. In the LTHSE prison, Eddie was being accommodated on the prison wing, rather than transferred to the prison’s healthcare centre. When, following a fall, it was identified he needed handrails fitting in his cell, this was done by the Works department very quickly. Asked about the speed with which this was completed, a senior officer said: ‘even Works aren’t stupid, they know he’s going to die and no one knows when’ (Fieldnote, LTHSE, 19 December 2017). It was important to forestall the potential criticism expected if delays meant he died without the handrails having been fitted.

Similarly, the actions of FLOs could be positively influenced by the anticipation of an investigation. An awareness that certain activities were likely to be viewed favourably by the PPO investigators led to practical assistance for the prisoner’s family. All four FLOs interviewed who had worked with the families of prisoners who had died of natural causes expressed sympathy for the family coping with a bereavement in such difficult circumstances. In many cases the family’s economic situation was regarded as precarious, perhaps due to factors linked to their family member’s imprisonment (Murray, 2005). One FLO spoke about an increased reluctance in the prison administration team to meet the costs of the families of prisoners:

She’s getting a taxi to A&E. She doesn’t work, she’s on benefits and I’m mindful that come later down the line, when he does pass away, she’ll be interviewed by the PPO ‘What care was given to you? What did the prison do for you? What did you do for them?’ And it’s all about the PR side of it, and the bean-counters forget the PR side of it. . . . I mean it’s about funeral expenses. We used to pay, we didn’t question it. It was paid. A lot of the theory behind that was the fact of when we come to coroner’s court, or investigation, they look at that – ‘did the prison offer funeral expenses?’; ‘the prison paid in full’. (Interview 9, Category B)

Getting a favourable report from the PPO and a positive comment in the coroner’s court was in his view sufficient justification for providing financial assistance to a family member. Anticipating an investigation is seen to lead to financial support for the prisoner’s family.

When a prisoner needed medical treatment outside of the prison, the expectation of an investigation focussed staff attention on the proper evidencing of decisions about the use of restraints. The question of when it is appropriate to use restraints on a terminally or seriously ill prisoner was subject to a high court ruling, the Graham Judgement, implemented via PSI 33/2015, and regarded by participants as a priority in PPO investigations. Two interviewees, both prison governors, referring explicitly to the Graham Judgement, and the importance of correctly implementing the ‘rules’ on the use of restraints (Interviews 7 and 13, LTHSE). A further two interviewees, both experienced officers, also talked about the need to be aware of the ‘rules’ regarding cuffing arrangements when accompanying a prisoner at outside hospital (Interviews 11, LTHSE; 2, Category B). Their unease is reflected in a report from the Prison and Probation Ombudsman for England and Wales (2013) which looks at lessons to be learned from investigations into end-of-life care in prisons:

While a prison’s first duty is to protect the public, too often restraints are used in a disproportionate, inappropriate and sometimes inhumane way. (p. 5)

One of the key features of a death from natural causes in prison custody, reported by several participants (Interviews 13 and 15, LTHSE), is that once death has occurred, the location is treated as a crime scene until the police say otherwise. This is an understandable step in preserving potential evidence of criminal activity and providing the police with an accurate picture of the circumstances of the death, which will in turn inform the coroner’s court. When a death occurred outside the prison, anticipating the processes of an investigation and the need to regard the location of death as a crime scene could have practical implications. One officer recounted an incident on a ‘bedwatch’, the term used to describe accompanying a prisoner inpatient in a hospital or hospice. With the prisoner expected to die soon, the officer encouraged nursing staff to remove an unnecessary syringe driver from the prisoner’s room, so it would not be seized as part of the police investigation. He had previous experience of the police keeping an expensive syringe driver for over a year after a prisoner’s death and did not want the hospital to be inconvenienced in this way (Interview 2, Category B).

Removing equipment from the room before death occurred could also simplify the investigation. One officer reported being on ‘bedwatches’ where:

we knew on one death that they were finishing his medication and myself and a female officer said ‘well, we’ll get everything out, empty his bin, clear his rubbish out, get rid of his dinner . . . plate’. And we just give the nurses a heads up, ‘get your syringe driver out before the police come and seize it as evidence’. And one lad he just had one shirt hanging in his wardrobe, with a beautiful clean, even the bedding were changed. He had white sheets on him. And he died peacefully. . .. And when police came, it was a simple ‘right, where is he, show me the body. Where’s the exits? What’s your name? What’s your role in this? What do you do?’ And they took statements, the photographer came in. ‘Right, let’s go’. And then a doctor came in, certified death, and off I went. It was as good as that. (Interview 3, Category B)

In all three of these instances, by removing items from the prisoner’s hospital or hospice room, the interests of other people were being served; the hospital would not lose expensive equipment needed for other people and the officers’ end of shift would be more straightforward. Although there was no suggestion it had been a factor in any of these cases, removing equipment, changing bedsheets and clearing away rubbish potentially reduces the effectiveness of the police investigation should any malicious or criminal acts have occurred. It is an understandable but unforeseen practical consequence of the anticipation of an investigation.

The process of an investigation after a prisoner dies from natural causes had another, potentially detrimental, practical consequence. As a result of regarding the scene of a death in custody as a potential crime scene, when a prisoner in the LTHSE prison was moved to the prison’s healthcare centre, frail and close to death, the palliative care suite was unavailable. Designed to be as comfortable and reassuring as possible, it was sealed off as part of the investigation following the death of another prisoner 6 days earlier (Fieldnote, LTHSE, 7 February 2018). Healthcare staff felt aggrieved the prisoner had not been able to end his life in what they regarded as a more suitable environment.

Emotional effects

In LTHSE prisons, long periods of imprisonment, the nature of the offences and prisoner dispersal can all contribute to relatively weak family connections (McCarthy and Brunton-Smith, 2017). When a prisoner received a terminal diagnosis, there were efforts made by staff to encourage him to have contact with his family, which in some cases were motivated by an awareness that the PPO would be critical of a lack of family contact (Interview 13, LTHSE).

In the first such occurrence for the LTHSE prison, when Neil’s death was imminent his wife was permitted to stay overnight with him. Staff in all roles regarded this as highly unusual, especially in a high security prison, and it was not without controversy. It was however, regarded as having been of emotional benefit to both Neil and his wife. There was considerable pride among staff that it had been possible to do this, and a conviction it would happen again in future cases (Interviews 12, 13, and 7, LTHSE), informed by an awareness of a likely reception from the expected investigation: ‘we’ll get relatives in again. It makes us look good’ (Interview 12, LTHSE). However, Neil’s wife had to leave his bedside immediately after his death because the cell was regarded as a crime scene (Interview 13, LTHSE). No time could be permitted for her to decide for herself when to leave his corpse: the anticipated investigation had to take precedence.

FLOs expressed frustration at the way in which the need to preserve evidence interfered with the needs of the prisoner’s family to visit the cell or to receive the deceased belongings:

It’s like when someone dies, the cell could be locked off for months till the police are happy. As a person, if that were your member of family, you may get comfort from getting someone of their personal belongings straight away from the death, rather than thinking of them just the cell locked off. But it could be a crime scene, and sometimes it’s hard for them to understand that that’s the process. (Interview 15, LTHSE)

Relatedly, healthcare professionals found it emotionally challenging that the expectation of an investigation meant they were not permitted to wash the body or provide the final stages of care they were used to delivering in other settings. As one nurse said,

That’s the one thing that I find quite strange because when you’re in hospice and on a ward we do the last offices and we wash them, wrap them up. Here, when they die, you just leave them. And that’s quite difficult, because you just think, ‘no, I need to get him sorted out’. But because it’s a crime scene, as soon as they have died, you have to come out. (Interview 12, LTHSE)

This is one way in which the conflicting ethical and philosophical ideologies between the prison and the other environments in which nurses deliver care are apparent (Dhaliwal and Hirst, 2016; Norman and Parrish, 2002) and in which the experience of dying in prison was differentiated from dying in other settings.

At times, concerns about a future investigation were ignored in order to do what was regarded as the right thing, because to do otherwise would have been emotionally uncomfortable for the staff involved in the prisoner’s care. A nurse spoke of being helped by an officer to move a prisoner after his death (Interview 12, LTHSE). She knew he should be left where he was but was anxious to move him from the commode where he had died. Another officer reported helping a nurse to straighten a body and place a white sheet over it:

And the police said ‘Who’s done this? Who’s done that? Have you touched the body?’ ‘Yeah (laughs), yeah, it were me. And we’d got last rites in as well’. (Interview 2, Category B)

Confident in his occupational identity and clear about what constituted ‘decency’, this officer was unconcerned by the expectation of an investigation. He needed to do what felt emotionally ‘right’.

Bureaucratisation

One noticeable impact of the anticipation of an investigation was the heightened importance of documenting and measuring care once it was thought a prisoner was dying. When a death was anticipated, accurate record keeping became important because all records were likely to be included in the ensuing investigations (Fieldnotes, LTHSE, 18 December 2017; Category B, 26 June 2018. Interview 11, Category B/LTHSE).

In the weeks or months leading up to an expected death from natural causes, the production of records increased in anticipation of the investigation. Prison staff sought to document their actions in order to demonstrate appropriate care had taken place, but also to defend the prison from criticism. The newly introduced Dying Well in Custody Charter was part of this agenda, with a nurse seeing it as a tool for evidencing the work done by healthcare staff for the investigation (Interview 10, Category B). On Eddie’s wing, there was an effort made by staff to have more contact with him, to check on him throughout the day and respond to any needs that might arise (Interview 5, LTHSE. Fieldnote, LTHSE, 19 December 2017). This had been agreed at a case conference to discuss his care, with staff being required to record these checks had happened as part of evidencing care to the expected post-death investigation (Fieldnote, LTHSE, 19 December 2017).

In the context of a ‘bedwatch’, when a prisoner was receiving medical treatment outside the prison, Prison Service Instructions make several references to record-keeping as part of demonstrating the management of risk. A Person Escort Record (PER) is regarded as the

key document for ensuring that information about the risks posed by prisoners on external movement from prisons or transferred within the criminal justice system is always available to those responsible for their custody. (PSI 33/2015, 3.2)

It was the duty of the officers accompanying the prisoner to keep the PER updated with information about the prison staff on duty, any visitors, and at least once an hour to check and record that the restraints have not been tampered with. The senior escorting officer was usually given responsibility for record-keeping (Fieldnotes, Category B, 26 June 2018, 10 July 2018a, 10 July 2018b; LTHSE, 19 July 2018). One participant spoke about this task, placing a noticeably different emphasis on it than PSI 33/2015, 3.2 quoted above:

If the doctor comes in and says ‘Right this procedure’ or gives an injection, you document everything, exactly what’s happening, bit by bit so you’ve got an ongoing occurrence record of who the doctor’s name is, what he’s done. Not what the drug is but just ‘was given an injection at such and such’ er, and just keep an ongoing record and a log, just in case anything does at a later date happen or the prisoner passes away or escapes, that you’ve known what has happened at any one time . . . Because then you’ve got an ongoing record if it goes to the coroner’s court in three years’ time. (Interview 11, Category B/LTHSE)

Even prison staff with very little involvement with dying prisoners placed considerable importance on accurate record-keeping because of the anticipation of an investigation, with one member of the education department saying:

So I’d hope to think it was a staff member who knew what they were doing, because otherwise it’s going to get rest of staff in trouble, I know it sounds a bit daft. . . The paperwork, make sure everything is done properly. Because if it doesn’t, it’s just going to come back and bite them at coroner’s court and things like that. (Interview 4, LTHSE)

An awareness of the burden to be carried by accurate record-keeping in terms of the investigations after a death was demonstrated by a governor who had recently visited a hospital to review the use of restraints on a prisoner who was terminally ill. He said,

When I’m writing that up, I’m writing my sort of authoritative assessment of that risk, knowing that within 6 months that’s probably going to be in front of the PPO, or copies of that, and the coroner and everyone looking and assessing my decision. So my decision’s got to be defensible, right? (Interview 7, LTHSE)

This emphasis on making defensible decisions will be discussed further below.

Collating a prisoner’s record and sending copies to the PPO, the coroner and the prison service solicitor was in itself a huge task (Interview 13, LTHSE) and one which occurred after every death in prison custody. When a prisoner had served a lengthy sentence, the administrative work of collating their records after death was considerable. One governor recalled:

But it’s the amount of paperwork that has to be brought in, y’know, from all areas. So you are collecting that from every area, to be able to send out to the coroner’s court and to the PPO and everything. So dependent on how long the man’s been in, dependant on how ill he’s been, or busy, security wise, that paperwork needs to be done three times over. You’ve three sets of paperwork, . . . that’s a huge scale of work from everybody within the establishment. (Interview 13, LTHSE)

The production of these records was seen as necessary but time-consuming (Interview 12, LTHSE). An FLO, tired from supporting a prisoner’s wife, talked about her relief at discovering, after the prisoner had died in hospital with her and his wife at his bedside, that colleagues had been tasked with starting the photocopying of his record (Interview 16, Category B).

The importance of maintaining proper paperwork in anticipation of an investigation could make some aspects of caring for a dying prisoner more complicated. Eddie had signed forms requesting cardio-pulmonary resuscitation should not be attempted, but experienced officers on his wing were anxious about being criticised after his death if attempts were made to resuscitate him. There was uncertainty about who could access the written instructions and a concern to avoid officers being in a position where a subsequent investigation might blame them for their actions (Fieldnote, LTHSE, 30 November 2017). Without such clarity, the anticipation of an investigation heightened officers’ anxiety about which of their colleagues might find Eddie collapsed or dead. They wanted to respect his wishes, maintain his dignity, and spare colleagues the unnecessary distress of attempting an unwanted resuscitation. However, this care for colleagues was also closely linked to the expectation of an investigation and, in particular, concerns about how the investigators would respond if resuscitation was attempted against Eddie’s written wishes. There were stories of staff in the past having been criticised by the coroner for not attempting resuscitation (Fieldnote, LTHSE, 30 November 2017). There were also stories about prisoners suing staff for having resuscitated them (Interview 9, Category B) and a belief that attempting resuscitation on a prisoner with a Do Not Resuscitate (DNR) request in place would be illegal (Interview 9, Category B). One senior officer spoke about attending the coroner’s court and seeing staff be criticised for not attempting cardiopulmonary resuscitation (CPR). A fieldnote records:

he’s seen the prison service leave officers out to dry over issues like this, and doesn’t want him or his staff to get the blame. He’s clear what he would do. It’s Eddie’s wish, and there’s no point bringing him back when he’ll die soon after anyway. But [he] doesn’t know what to tell his staff. He thought he did, and told them not to try CPR because Eddie didn’t want it, but after the conversation with [the healthcare professional] that I witnessed, he told them to forget what he’d said. He’ll take any blame on the chin, but doesn’t think it’s fair to put his staff in that position. (Fieldnote, LTHSE, 30 November 2017)

The issue was partly one of communication, with changing shifts and ‘guesting’ staff meaning senior staff on the wing and those working closely with Eddie were worried their colleagues would not know of his wishes (Fieldnote, LTHSE, 30 November 2017). In this prison, healthcare staff were struggling to reconcile medical confidentiality with the officers’ need for communication, and the necessary bureaucracy around a DNR request was additionally troubling because officers’ knew their actions would be subject to investigation.

Discussion

The prospect of scrutiny from the police, coroner and PPO after the death of a prisoner was taken very seriously by prison staff. In the ways discussed above, the anticipation of an investigation after a death shaped the care of the dying prisoner as prison staff sought to forestall possible criticism. The occupational norms of different staff groupings within the prison directed their attention to particular aspects of the anticipated investigation. For example, FLOs were concerned that the care provided to the family should be exemplary, healthcare professionals were keen to evidence that care plans were in place, and governors and senior officers were most concerned that the use of restraints should be beyond reproach. There were overlaps between types of effects, with practical decisions such as whether to use restraints on a prisoner receiving medical treatment outside the prison also having emotional effects on the prisoner, who often experienced such restraints as stigmatising (Fieldnotes, LTHSE 30 January 2018, 11 October 2017; Category B 19 February 2018). Similarly, the requirement to treat the scene of death as a potential crime scene had wide-ranging practical and emotional consequences.

The intention of an investigation, as seen in the remit of the PPO, is to establish the circumstances of the death, particularly how the deceased was managed by the relevant authorities, and to examine whether operational practices or policy should be changed to prevent a future death. Fatal incident investigations are important in meeting the obligations for investigation that result from Article 2 of the ECHR. In some instances, the anticipation of an investigation served to focus attention on particular aspects of the dying prisoner’s care and could lead to improved experiences for them or their family. In other instances, the anticipation of an investigation, and especially of the processes of an investigation, led to potentially detrimental adjustments. Sometimes it led merely to better record-keeping.

The importance placed on bureaucratic tasks when a prisoner was expected to die is striking. While such efforts are important in terms of accountability, they arguably are of limited utility to the prisoner unless they result in better standards of care. By constructing quality care as that which meets the expected findings of an anticipated investigation, the process of dying becomes bureaucratised and the need for defensible decisions is foregrounded. Where the anticipation of an investigation led to the bureaucratisation of death it is important to consider whether this contributed to better care or merely resulted in more and improved record-keeping. The two are not necessarily antithetical, but it may be difficult to make them compatible. Defensible decision-making, an understandable response to the scrutiny of an anticipated investigation, does not necessarily improve outcomes for the prisoner. If the focus is on making a ‘defensible’ decision, then attention is not necessarily paid to best practice or to improving practice, but to practice which can be justified in the face of an investigation. A culture of ‘defensible decision making’ is indicative of an institution feeling the need to defend itself, aware perhaps of its past mistakes, but also having in the past felt under attack. Defending the institution is not the same as serving the best interests of the dying prisoner, their family or the staff working with them, although it may result in the same actions.

In a number of instances, it seems unlikely that the effects of anticipating an investigation are the ones the PPO intended. Their analysis of prison performance around the care of dying prisoner, quoted above, praises efforts ‘to ensure that prisoners die in a dignified and humane way with the care and support they require’. (PPO, 2019: 50). It is surely not the aim of their investigation that, by treating the location of a death from natural causes as a crime scene, the dignity of the deceased prisoner or the care of the bereaved family are reduced. Nor is it expected the PPO would welcome a situation which leads to pragmatic decisions to remove equipment which, although there was no suggestion this had occurred, may lessen the quality of treatment or the experience of dying. Nor does the investigation seek to increase the emotional labour of healthcare professionals, denied the opportunity to care for the body as they usually would, denying even in death the prisoner the care usually afforded to individuals in other settings.

Furthermore, using the anticipated findings or process of a future investigation to inform the delivery of end-of-life care presents several problems. First, staff understandings of the standards required by the investigating bodies were subjective, based on previous experiences and often on hearsay. Prison officers acknowledged they rarely saw or read the full report (Interview 11, Category B/LTHSE) and rumours circulated which contributed to varying interpretations of what was defined by the investigating bodies as appropriate practice. Second, evaluations of desirable end-of-life care based on the anticipation of an investigation were informed by the perceived priorities of past reports, such as the correct use of restraints, contact with the family and continuity of care. Although previous reports could inform future practice, prisoners’ needs vary. Prison staff inevitably face situations they have not encountered before and which are not covered by previous investigations. Third, the assessment of the police, coroner and PPO was only available after an individual’s death; too late to make specific improvements to their care. When informed by perceptions of an anticipated investigation, the care of the dying individual came for some participants to be defined as meeting standards unconfirmable until after the death had occurred.

By focussing on the anticipation of an investigation, prison staff were meeting the agenda of the PPO, police and coroner, which was not necessarily the same as meeting the needs of the dying prisoner. We need to consider if motivation matters. If actions are done because they will look good in a subsequent investigation, such as allowing Neil’s wife to stay with him when he was close to death, or to divert criticism, such as installing handrails in Eddie’s cell in an especially timely manner, does it matter if they were motivated by the anticipation of an investigation when the care for the prisoner has been improved? Arguably although the investigations of the coroner, police and PPO should be taken seriously and are crucial to protecting the human rights of prisoners, an emphasis on avoiding criticism or enhancing perceptions of the prison could serve as a distraction from what the prisoner actually needs. Here, clearly defined and communicated care plans become more important, even if at times the motivation behind them is an awareness they will be scrutinised by the investigators.

Finally, however, it should be acknowledged that when care for someone dying in prison is based on the anticipation of an investigation it is constructed on an understanding of the individual as first and foremost a ‘prisoner’, someone for whose treatment prison staff will have to account for after their death. For many prisoners in this study, when they considered the end of their life, they hoped to be treated as a ‘person’, not a ‘prisoner’ (Fieldnotes, LTHSE, 30 November 2017, 16 June 2018). As such, other standards for evaluating care may be more appropriate.

Conclusion

Although other ways of evaluating the quality of end-of-life care were apparent in discourses within the prison, the desired standard of palliative care was often defined in the context of an expected investigation. While the demands of the coroner, PPO and prison service lawyers served to bureaucratise death, the final reports gave some external evaluation of the care provided. Staff were aware of the aspects which would be important in investigations and their awareness of an impending investigation did affect perceptions and delivery of quality care.

The practical, emotional and bureaucratising effects of this influence suggest that outcomes for patients and their families, as well as for staff engaged in emotional labour, were not always positive as a result of the anticipation of an investigation. The need to account for the care of the prisoner could sometimes unexpectedly reduce the dignity and humanity afforded to them and their families. An awareness of this is helpful in better understanding the practice of palliative care in prison and is relevant to policy makers and investigators, especially the PPO.