Summary
Mr C complained about a prison officer inappropriately giving him a pen, which Mr C swallowed the next day, causing injury. Mr C also complained about the length of time it took for his complaint about this to be dealt with. I upheld both complaints and made several recommendations to the Scottish Prison Service (SPS) to address the failings in this case and prevent similar situations arising.
I decided to issue a public report on this case as my office has previously investigated and upheld a number of Mr C's complaints. The report lists the upheld cases from August 2013 to date. I accept that Mr C presents many challenges in terms of his care, however, I have grown increasingly concerned by the number of complaints from him which this office has upheld. This has raised concerns of systemic failure in the way that the SPS are managing Mr C and investigating his concerns. I also considered that Mr C had suffered a significant personal injustice in this case.
Mr C was in a separation and reintegration unit and being managed under a process which is used for handling prisoners who are at risk of suicide or self-harm. He had repeatedly harmed himself and as a result of this was allowed no items in his cell. At the time of the incident, Mr C was judged to be at high risk. SPS staff were to observe him at 15 minute intervals and he was only permitted to wear anti-ligature clothing (clothing specially designed to reduce the potential for self-harm). That day, Mr C was given a self-representation form in relation to a review of the application of a prison rule. Although the condition that he was to have no items in use in his cell was in place, Mr C was provided with a pen to complete the form. Mr C returned the form but kept the pen which he swallowed the next day. I understand that this caused an internal perforation and he needed surgery to retrieve the pen and repair the damage.
The SPS position is that the pen was provided to Mr C in good faith as he needed it to complete the form. I note their comments on there being scope to work slightly outwith the care plan conditions and that management considered that with their substantial knowledge of Mr C, this was an instance where staff were able to do so. I did not agree that providing Mr C with a pen represented working slightly outwith the care plan. While I accept that the form needed to be completed, I did not find that sufficient account was taken of the condition that no items were permitted when providing him with the pen.
The SPS were also unable to provide copies of the relevant care documentation that was in place on the day of the incident. These records form an important part of Mr C's case history and I find it concerning that they appear to have gone missing and I am critical of this. I did, however, accept the SPS's position that the conditions were unchanged from care documents dated three weeks earlier.
I am also concerned that there appears to have been no attempt to retrieve the pen after Mr C had finished using it and that this was not explored by the SPS during their investigation. Similarly, there appears to have been no attempt to investigate Mr C's complaint that the prison officer made inappropriate comments when providing the pen. This serious allegation is against the principles of the care process that was in place and I would have expected this to be fully investigated by the SPS at the time.
Taking my concerns about this case in to account alongside the complaints already upheld for Mr C, I have made additional recommendations to address the wider issues in managing his care while he remains in prison. This related to the new role of Independent Prison Monitors, who help ensure prisoners' human rights are upheld and that life in prison contributes to their rehabilitation.
On the complaints handling aspects, the SPS provided their final response to Mr C well over a year after they received it and I do not consider the length of time Mr C had to wait for a response to be in any way reasonable. There is no documentary evidence to show that any investigation of Mr C's complaint took place after it was first received or that the prison officer concerned gave Mr C any explanation for the action taken. I note that the SPS have already noted this failing and that it has been identified as a learning point, however, I am highly critical of the complaint handling in this case. The lack of documentary evidence of any timely investigation coupled with missing care conditions and complaint paperwork is a matter of some concern.
Redress and recommendations
The Ombudsman recommends that the SPS:
- (i) issue a written apology to Mr C for the decision to provide him with a pen when the restrictive ACT 2 Care condition was in place;
- (ii) arrange a meeting between the Governor of Mr C's current prison and a senior member of the local NHS Board to discuss our ongoing concerns about his care and to ensure that there is appropriate senior oversight;
- (iii) highlight this issue to the new Independent Prison Monitors to ensure that they are aware of our concerns and inform Her Majesty’s Inspectorate of Prisons for Scotland we have asked for specific steps to be taken in relation to Mr C;
- (iv) issue a written apology to Mr C for the delay in providing a response to his complaint;
- (v) issue a reminder to all staff involved in the handling of this case that all confidential complaints should be investigated and responded to in line with the Prison Rules and associated Staff Guidance on Prisoner Complaints and Disciplinary Appeals; and
- (vi) review how paperwork such as complaint forms and ACT 2 Care documents are managed to ensure that important information is not lost.