SPSO prisons complaints report 2012 13

SCOTTISH PUBLIC SERVICES OMBUDSMANANNUAL COMPLAINTS REPORT 2012–2013

PRISONS

Learningfromcomplaints

Supportingpublic serviceimprovement

Improvingcomplaintshandling

Complaint

This is the SPSO’s first annual complaints reportabout prisons. It is one of a series of reportsthrough which we aim to put key messages,information and analysis of complaints aboutindividual sectors into the public domain. Weanticipate that Parliamentary committees,government departments, scrutiny bodies,regulators and the Scottish Prison Service will findthis an effective means of enhancing the learningfrom our work and identifying issues arising fromthe complaints we see. Equally, we hope it willprove useful to members of the public who seekmore information about the kinds of complaintsthat are escalated to us and how we handle them.

November 2013

CONTENTS

Ombudsman’s Introduction 4

Casework 6

Sharing the Learning 16

Case Studies 17

Prison Cases Determined 2012/2013 22

In our experience, there aretwo areaswhere prisonersare encountering barriers tocomplaining. I amconcernedabout the relatively lownumbers of complaintswe receive fromwomenprisoners and aboutdifficulties experienced byprisoners in accessing theNHS complaints process.

This is our second full reporting year forcomplaints about prisons, sincewe absorbedthis jurisdiction following the abolition of theScottish Prisons Complaints Commission inOctober 2010. Nowwith over two years offigures collected, we are able to reflectmorefully on the volume and types of complaintswe receive.

Key trends in our figuresWhile prison complaintsmake up a littleunder 8% of our caseload, they tend to berelatively straightforward to handle. This isbecause rules, procedures and policiesgovern somuch of prisoners’ lives, mostlyset by and with decisionsmade at thediscretion of the Scottish Prison Service(SPS). When we receive a complaint from aprisoner, we check to see that the individualhas been treated fairly. Usually this meansconfirming that that they have been treatedin line with an existing policy, rule orprocedure and inmost cases, we find thathe or she has – there is a low uphold rate of26.5% in the prison sector (compared withthe rate across all sectors which is 46%).

Sometimes, though, we find that a prison isapplying a process or procedure out of linewith the rules, that there is not a policywhere there should be, or that there is onebut it is being applied inconsistently acrossthe prison estate. In these cases wemakerecommendations to ensure that all prisonscan learn from an individual complaint,and some of these recommendations areillustrated in the case studies in this report.

The top subject of complaint is abouthow prisoners progress to less secureconditions. We have upheld very few ofthese. Other subjects are, as the reportdetails, sometimes aboutmatters that canseemminor from an external viewpoint butwhich in the prison environment can behugely significant.

The rate of premature complaints (thosethat come to us too early, before completingthe organisation’s own process) is alsocomparatively low, at only 19% comparedwith 40% overall. Again, this is likely to bebecause prisoners know that there is anestablished way of complaining – first tothe prison, and then to us.

OMBUDSMAN’S INTRODUCTION

SPSO ANNUAL COMPLAINTS REPORT 2012>2013 PRISONS PAGE 4


In our experience, however, there are twoareas where prisoners are encounteringbarriers to complaining. I am concernedabout the relatively low numbers ofcomplaints we receive fromwomenprisoners and there ismore detail about thepossible reasons for this later in this report.

My other concern is about difficultiesexperienced by prisoners in accessing theNHS complaints process. Complaints abouthealthcare have been the responsibility ofthe NHS in Scotland since November 2011and so they are covered in our health reportfor 2012/13. I am including them here aswell, however, in order to help build a fullerpicture of the kinds of issues prisoners raiseand their experience of the complaintsprocesses that have been set up for themto question how decisions weremade or toseek redress when things go wrong.

Outreach and engagementIn addition to our complaints handling work,we engage with the SPS and, occasionally,individual prisons to ensure that we aresharing information from complaintslearning effectively. I andmy staff havevisited several prisons to familiariseourselves with the environment in whichprisoners live and staff work, and to helpinform howwe ensure a good level ofawareness of our service, despite the lowlevels of literacy in prisons. We also supportprison staff in handling complaints well,through outreach and training activities.

One of the benefits of our process is thetransparency of our decisions. Last year wepublished 110 complaints about the SPS onour website. Through this, the SPS cananalyse trends and identify improvements

they canmake to reduce any failings we find.Similarly, the public and other interestedparties can see the kinds of complaints thataremade about the SPS, gain insights bothwhere we do not uphold complaints andwhere we do, and find examples of the kindsof redress we are able to recommend. I urgethe SPS and others tomake themost ofthese tools and demonstrate the ways inwhich they value complaints and how theyuse them to drive improvement.

JimMartinOmbudsman

OMBUDSMAN’S INTRODUCTION

Oneof the benefitsof our process is thetransparency of ourdecisions. Publishing ourdecisionsmeans the prisonservice can analyse trendsand identify improvementsthey canmake and thepublic and other interestedparties can gain insightsbothwherewedonotuphold complaints andwherewedo.

CASEWORK

Number of complaints receivedanddealtwithPrison complaints transferred to us in October2010. In our first full year of taking these,2011/12, we received 385 complaints. In 2012/13we received 318 complaints, representing justunder 8%of our total caseload.

This 17%decrease in complaints receivedwas against the general trend of increasingcomplaints across our jurisdiction. Three factorsare likely to have affected complaints numbers.Firstly, in the period after wewere first able totake complaints about the SPS, a number ofprisonerswrote to us in an attempt to revisitcomplaints previously submitted to and dealtwith by the Scottish Prisons ComplaintsCommission.We no longer receive suchcorrespondence. Secondly, we engagedwiththe SPS in tailored complaints training for theirstaff, and thirdly, the SPS have applied thelearning from complaints widely and quickly.Wewill continue tomonitor the volume andtrends for 2013/14.

We are able to take complaints fromanyoneabout prisons (visitors and relatives, for example)but to date the vastmajority of complaints havebeen fromprisoners. Those otherswho havecomplained tend to be familymembers – forexample a complaint froma prisoner’smotherabout delay in transferring him to be closerto his family.

The top subject of complaint is security, controland progression (59 complaints were about thisin 2012/13). Progressionmeansmoving to lesssecure conditions, and in order to do this, aprisoner has to be assessed, including for accessto offending behaviour programmes. Complaintsare often about delay in accessing programmes,or about a perception that others are progressingmore quickly, andmost usually raise the concernthat the prisoner’s progress or chance of parolewill be affected if they cannot access theprogrammes.

We dealt with 319 prison complaints in 2012/13,a fall of 18%on 2011/12 (in whichwe dealt with389 cases). The total number of complaintsreceived and dealt with differs because somecases received at the end of 2011/12werecompleted in 2012/13.

Whatwedowith complaintsAt the end of this report is a tablewith theoutcomes of all the prison complaints we dealtwith. Below, we identify some of the key pointsandwhat we do at each stage of our process.

AdviceAll complaints and enquiries come first to ouradvice team. Their role is to provide information,signposting and support. Much of this work isconducted by telephone and they provide notonly advice about ourwork but also help peoplefind additional support. They can alsomake adecision on a complaint if it is clearly amatterthat we are not legally able to consider or it hascome to us too early.We are normally onlyable to deal with complaints after they havecompleted the organisation’s complaintsprocess. If a complaint comes to us too early (wecall these premature complaints) wewill let theperson knowhowbest tomake the complaint tothe organisation concerned.We can also explainhow theymay be able to get help inmakinga complaint, such as through amember ofa visiting committee, another prisoner, or amember of staff.

Our office is accessible to prisoners, within theconstraints of the prison system. They canwriteto us and call us, in confidence, using ourFreephone number.We have developed leafletsand posters to help prisoners understand how tocomplain andwhat we can dowith complaints.We try to ensure that these are particularly clearand understandable, as research has shownthat around one third of the Scottish prisonpopulation has limited reading andwriting ability.



CASEWORK

Weproduce the leaflets in large font andaccessible formats, using plain English, and haveprovided audio versions of the information.We also publicise our Freephone helpline veryclearly in the information provided for prisoners,tomake sure they know that they can easilyspeak to us about their complaint. Prisonerfeedback fromour outreach visits also led to usre-presenting our name in prison literature.We found that the similarity between the initials‘SPS’ and ‘SPSO’ was leading to a perceptionthat wewere not independent of the SPS.To ensure that we reflect our independence asan organisationwe therefore now describeourselves in prisoner literature as the ‘ScottishOmbudsman’.

This year saw a slight drop in the number ofpremature complaints about prisons, from20%to 19%. Comparedwith other sectors, the rateremains low (the overall rate across all sectorsis 40%). Aswe have said earlier, with someexceptions, we think that this is because theprison complaints process is clearly understood,and followed, and is generally accessible. Recentreports by HMChief Inspector of Prisons forScotland support the view thatmany prisonershave a high awareness of that process and ofhow to complain.

All enquiries and the vastmajority of prematurecomplaints are dealt with by our advice team.In 2012/13, the teamhandled 127 complaintsabout prisons, of which 46were premature.At the next stage in our process, wherecomplaints receive further detailed review,another 16 caseswere found to be premature.

Assessing complaintsLast year, 192 complaints passed from theadvice stage to further detailed review. At this

stagewe normally try, wherever possible, to talkto the complainant tomake surewe understandtheir complaint andwhat outcome theywant.Weaim to see if there is a resolution that would beagreeable and acceptable to all parties and in avery small number of caseswewere able to dothis.We also have to assesswhether there arereasonswe should not take the complaintfurther. We can only investigatewherewe havethe legal power to do so. Again, prisoners cancall uswithout cost, using our Freephone line,to discuss their complaint at this stage.

We know it is frustrating for complainants if wecan’t resolve a complaint or take it further, sowetry to take the decision at this stage as quickly aswe can. Last year, we decided that we could nottake 79 cases further at this stage. In somecases this was because theywere premature, orout of our jurisdiction. In others, the complainantdid not provide uswith enough information,withdrew the complaint, or wanted an outcomewe could not achieve for them.We provide abreakdown of the decisionswemade at thisstage at the end of this report.

Investigating complaintsAt the investigation stage, we decidewhetherthe complaint should or should not be upheld.In order to do so, wewill consider all theavailable evidence. In prison cases, this is likelyto include the relevant file and/or complaintscorrespondence, aswell as any otherinformation supplied by the personwho hasmade the complaint, or by the prison.Weparticularly look at the prison rules and thepolicies and procedures that are in place.Weassesswhetherwhat happenedwas reasonablein the circumstances, andwhether the SPSfollowed the correct procedures.

Complaint


CASEWORK

> Wereceived318complaints and dealtwith319

> The rate of complaints coming to us too early dropped from20%

to19%comparedwith last year (well below the overall rate of 40%)

> The rate of upheld complaintswas 26.5%, up from16% lastyear, but still well below the overall rate of 46%

> Peoplewho received advice, support and signposting:127

> Number of cases decided following detailed consideration

pre-investigation:79

> Complaints fully investigated113with 110* publicly reportedtoParliament

> Wemade51recommendations for redress and improvement

* Wepublicly report the decisions aminimumof sixweeks after sending the decision letter.In a small number of caseswedonot put information in the public domain, usually to preventthe possibility of someonebeing identified.

Key figures in prison complaints 2012/13


CASEWORK

DecisionsWhenwe investigate, we always issue awrittendecision. This is an important record and setsout in detail what we have investigated and how.The organisation and the complainant willreceive copies.We know these decisions aresometimes about difficult experiences andin 2012/13we beganmoving towardssupplementing thewritten recordwith atelephone discussionwith the peoplewhohadmade the complaints, where possible.

Thewritten recordwill be in one of two formats.Inmost caseswe issue decisions by letter. Thisletter remains private between ourselves and theparties. In order to ensure learning is shared, wepublicly report an anonymised summary of thedecision to Parliament. In 2012/13we issued113 decisions on prison complaints by letter.

We reported 108 of these to Parliament,and also published two public interest reportsabout prisons in 2012/13. Our criteria for publicreports are below.

Our public interest criteria can include:> significant personal injustice> systemic failure> significant failures in the local

complaints procedure> precedent and test cases

RecommendationsWherewe find that something has gonewrong,wewill uphold the complaint andwe usuallymake recommendations for redress andimprovement. In 2012/13, wemade a total of 51recommendations about prisons.We fully upheld17 complaints and partly upheld another 13.Although it was only the third highest area aboutwhichwe received complaints, the area inwhichwe upheld themost was communication andrecords, wherewe fully upheld four complaintsand partly upheld another four of the 36complaints we received. In the areawheremostwere received – security, control and progression–we only upheld four complaints out of 58received.

On this page and through the case studies atthe end of this report, there are examples ofthe kinds of recommendationswemake. Therearemore case summaries on ourwebsitewww.spso.org.uk/our-findings.

We track every recommendation to ensure thatthe organisation implements it within a specifiedtimescale and provides suitable evidence toshow that they have done so effectively.

Prisons recommendationsWe recommended that the SPS:> review current practice to assess what can

be done to minimise risk to individualprisoners in certain situations, and issueappropriate guidance to staff

> urgently reviewa case to ensure thatappropriate and reasonable steps are beingtaken to progress the prisoner

> review the practice for the progression ofprisoners who do not admit guilt, to ensurethat staff are managing those casesappropriately, and in linewith relevant policy

> review a case to identify how they canprevent inaccurate information from beingrecorded about ex-prisoners

> apologise for incorrectly stating that avisitor to a prison was a registered sexoffender

> highlight to staff that allegations ofdiscrimination should be recorded, treatedas such, and appropriately investigated andaddressed in the complaint response

> remind staff to ensure that, whereprisoners ask to attend an internalcomplaints committee hearing,arrangements are made to facilitate this

> remind staff of the importance of recordingall prisoners’ property

> issue a fuller response to a complaint,ensuring that they explain the proceduresin place to minimise the risk of foodadulteration

> ensure that the procedure for grantingescorted day absence is in line with theprison rules and the relevant Direction byScottish Ministers

> remind staff, including prison governors, toensure that they respond to complaintswithin the relevant timescales set out in theprison rules, and that they keep a record oftheir investigation

> apologise for the inappropriate handling ofa complaint.


CASEWORK

What do people complain about?Top subjects of prison complaintsreceived 2012/13

Subject Total

Security, control and progression 59

Privileges and prisoner property 51

Communication and records 38

Work, education, earningsand recreation 25

Health, welfare and religion 22

Leave from prison (includinghome detention leave) 21

Physical and personalenvironment 21

Discipline 11

Admission, transfersand discharge 9

Taken as a whole, the top categories ofcomplaint are in almost the same order aslast year. Most complaints levels stayed thesame or dropped, with only work, education,earnings and recreation showing a smallincrease on last year, of two complaints.Complaints about health, welfare and religiondropped by half (from 45 last year to only 22this year), as did those about admission,transfers and discharge (from 18 to 9).

As well as the complaints in the table above,we received a number of complaints in whichcontact with us was at a very early stageand although we knew that they wereabout an issue related to prisons, we werenot given enough information to enableus to take these further. We record these as‘subject not known’.

Issues in prison complaintsWomenprisonersandcomplaintsOf the 318 complaints about Scottish prisonsthat we handled in 2012/13 only a tiny percentage(under 2%) came fromwomen prisoners, andvery fewwomen prisoners phoned us. Althoughthere are farmoremen in prison in Scotland,Scottish Government figures show that in 2011/12women averaged around 6%of the prisonpopulation, and that since 2000 the trend hasbeen for the female prison population to increasemore rapidly than themale population.Wemight, therefore, expect to have receivedmorecomplaints fromwomen thanwe did.

We are aware fromour contact with the SPSand fromour visits to Cornton Vale (the onlyall-women prison in Scotland) that althoughthe complaint rate is low, face-to-face contactbetweenwomen in prison and visiting committeemembers is very high compared to that ofmaleprisoners, and itmay be thatmany issues areresolved through this avenue. However, we alsohave anecdotal evidence fromour visits thatwomen prisonersmay not complain becausethey fear that complainingmay have a detrimentalimpact on their relationshipwith prison officers.Somewomenhave told us that their complaintsformswere deliberately not progressed by prisonofficers. Clearly, if this is a reasonwhy complaintsfromwomen in prison are not reaching us, it wouldbe of considerable concern.Wehave discussed thelow level of complaintswe receive fromwomenprisonerswith relevant parties including the thenprison governor of Cornton Vale, the SPSand theformerHMChief Inspector of Prisons for Scotland,andwewill continue tomonitor the level ofcomplaintswe receive.

Frequent complainersAt the other end of the spectrum, a fewmaleprisoners complain regularly to the SPS,meaningthat a very small number of prisoners have adisproportionate impact on resources at the SPSand the SPSO. Over the past two years, 22%ofthe prison complaints we received came fromfourteen prisoners, of which 11%was from justfour prisoners.While always recognising thateach casemust be dealt with on its ownmerits,we aremonitoring this and discussingwith theSPSways ofmanaging it.


CASEWORK

Progression and behavioural programmesThe top issue of complaint was about prisoners’progress through the prison system.We received59 complaints about this in 2012/13, althoughweupheld only two, one of whichwas the subject ofone of our public reports. Althoughwe receive sofew complaints from female prisoners, this wasfromawomanwhowas not progressing as shehad expected. In taking the complaint forward,she had the support of amember of the prisonvisiting committee.We fully upheld her complaint,finding significant confusion on the part of theSPS about what the prisoner needed to do andhowshe should progress. It features as one of ourcase studies later in this report (case 201104614).

Most prisonerswant to progress to less secureconditions. Aswe have explained earlier, in orderto do so they have to be assessed, including foraccess to offending behaviour programmes.These are an important part ofmoving throughthe system, and complaints are often aboutdelays in accessing courses, or about aperception that other prisoners are progressingmore quickly. Most complaints usually also raisethe concern that the prisoner’s progress orchance of parolewill be affected if they cannotaccess the programmes.

There have been issueswith the provision of bothassessments and access to programmesbecause of the numbers of prisoners involved.We had 12 complaints about access to theseprogrammes during the year, althoughwe didnot uphold any aswe found that the actions of theSPSwere reasonable. In some, we found thatexplanations could have been clearer, andwepointed out the need for the reasons for decisionsto be clearly explained.

One example of this is a prisonerwho complainedabout a delay in accessing a behaviour course

(case 201202302). Hewas concerned that thismight hold up his release. Frompreviouscomplaints, wewere aware that the SPSweredealingwith a temporary backlog of peoplewaiting for courses, after a new type ofassessment of suitability for courseswasintroduced. Thiswas intended to benefit prisonersby combining various assessments into one, butthere had been a sudden high demand for places.Fromour investigation, wewere satisfied that theprisonwere doingwhat they could to prioritiseplaces fairly and improve the situation, such astrying to arrange for someprisoners to attend acourse at another prison. Therefore, althoughtherewere delays, we did not consider that theprison had acted unreasonably andwedid notuphold the complaint. In another example (case201200831) a prisoner complained about delay inassessing him for offending behaviourcoursework. The prison explained that theyprioritise prisoners in linewith their progressiondates. They assured him that hewas on thewaiting list andwould be assessed in due course.Our investigation found that hewas not eligible forparole for over eighteenmonths and that therewas sufficient time for him to be assessed for,and to access, any required coursework.

Not all complaints about progression relate tobehaviour programmes. One prisonerwasrefused progression to open conditions becausehewas involved in outstanding civil courtproceedings (case 201105267). He complainedthat it was unreasonable for the prison to delayhis progression on this basis.We obtained furtherinformation from the prison andwere satisfiedthat thiswas a relevant risk factor that theywereentitled to take into account.Wenoted that theyexplained their reasons andundertook to reviewhimagainwhen the court proceedingswere over.


CASEWORK

Property/articles inuseAcross the prison estate, certain items are notpermitted as ‘articles in use’ (i.e. prisoners are notallowed to have themwhile in prison), for safety orsecurity reasons. Aswell as these restrictions,prison governors have further discretion aboutwhich items to allow in their prison. Complaints inthis area ranged fromunhappiness that a prisonerwas not allowed towear a particular itemofjewellery, to a prisonerwhowanted to be abletowatch a familywedding video. Prisons haveapproved suppliers throughwhich prisonersmaybe able to purchase certain items, but permissionto purchase is not always given, andwe receivecomplaints about this aswell. In all cases, wecheckwhether SPS followed the policies andprotocols correctly, and that the current practiceaboutwhether any particular item is allowedhasbeenmade clear to prisoners.

Inmany cases, we find that the prison has quiteproperly refused to allow the article in use. In oneexample, we received a complaint about footwearthat amanhad bought through a catalogue, via theprison (case 201104793).When it arrived, staffidentified the itemsas boots, rather than trainersas the order form they had seen had described.The prison explained that staff did not always havetime to check order numbers against cataloguedescriptions, and said that the footwearwas asecurity risk as the higher ankle style had potentialfor aweapon to be easily concealed.We concludedthat the prison acted reasonably but asked them toconsider including additional information on their‘articles in use’ list about the types of footwear thatare not permitted in the prison.

In another example (case 201200043), amancomplained that hewas not allowed to have

certain paganworshipmaterials.Whenweaskedabout this, we found that the prison had consultedwith their chaplaincy advisers and the ScottishPaganFederation, and concluded that someof thecontentwas not appropriate for a prison setting.As they had clearly taken this seriously and thedecision had been taken appropriately, we did notuphold the complaint. In another case, amancomplained that the prison had decided to removehis hi-fi, which he had had formany years (case201202641). He had been told that he could notkeep it because it had a recording facility, whichwas against prison rules.We found that prisonershad been told that theywere not allowed to usehi-fiswith recording facilities, andwould need topay to have this removed fromsuch equipmentbefore it would be allowed back in use. So far, themanhad refused to pay, which iswhy hewas notallowed to use it.

In a final example, aman complained that hewas not allowed to bring in his electric typewriter,although another prisoner had been allowed touse one (case 201101671). Theman thought thiswas unfair. In this case, we found that he hadasked for the typewriter later than the otherprisoner did. The SPS had treated the first caseas an exception, as at that time they had norecognised supplier for an electric typewriter.By the time theman asked that his typewriter bebrought in, SPS had sourced a new recognisedsupplier, andwe took the view that it wasreasonable for the SPS to refuse his request touse his own typewriter in linewith their policiesand procedures. However, we agreed that he hadnot had a clear explanation of this and complaintrecords had not been kept, sowe upheld hiscomplaint and recommended improvements.


CASEWORK

Complaints handlingDuring the year, we identified some issueswith complaints handling, including theadministration of complaints. As part of thecomplaints process, a prisoner can progresstheir complaint to the internal complaintscommittee (ICC) if it remains unresolved.The ICC ismade up of threemembers, two ofwhommust be employees of the SPS, and thechair is always one of these two. The ICC roleis to consider the complaint andmake arecommendation to the prison governor onwhether it should be upheld. The governor thendecideswhether they support the ICC decision.

An areawherewe found some specificproblemswas in the actions of staffmembersacting as chairs of these committees. Prisonrules allow the chair to refusewitness requests,but only where they are satisfied that theevidence thewitness is likely to givewould be‘of no relevance or value’ in considering thecomplaint. Four complaints that we receivedinvolved a scenario where the chair refused toallow awitness to attend, but thenwas found tohave spoken to thewitness about the case. Oneof these is included as a case study later in thisreport (case 201201468). In all four cases, as thechair decided to discuss the complaint with therequestedwitness, it seems likely that thetestimonywould have had some relevance orvalue, sowe concluded that the refusal of the

request was inappropriate.We upheld all thesecomplaints and recommended that the SPSremind staff taking up this role that they shouldrefuse requests only on appropriate grounds;and that where they do refuse to call a witness itwould be good practice to record their reasonsfor this.

We also receive complaints that a prison hasnot carried out recommendations after an ICChasmade a recommendation. In one complaint(case 201201421) a prison decided to restrictthe exercise arrangements for prisoners heldseparately from themain prison population fortheir own safety. After a prisoner complainedthat this was unfair, the ICCmade arecommendation, which the prison governorendorsed. However, the prison did not thenimplement it and the prisoner complained tous.We exploredwith the prisonwhy therecommendationwas not implemented.Wefound that the prison considered two veryimportant factors – the risk presented to thesafety of prisoners and staff on the exerciseroute, and the risk presented to the good orderof the prison, aswell as location and impacton resources. The evidence confirmed thatthe prison had exploredwhether therecommendationwas possible but after carefulconsideration of relevant and important factors,decided not to implement it. We found this to bereasonable.


CASEWORK

As the above cases show, some issues incomplaints handling appear to stem froma lack ofstaff awareness of the prison rules. This includesnot handling complaints in accordancewith therules, orwithin the timescales specified. In oneexample (case 201200829), we upheld part of acomplaint about how the prison had responded.We found that the prison did not respondwithin thetarget timeframe, as set out in the prison rules,and did not offer an explanation or any indication ofwhen a responsewould be issued. In this casewedid not need tomake any recommendations, aswe found that the SPShad already issued revisedinstructions to prison governors about this.

Takingaction toresolvecomplaintsIn our experience, the SPSare very good atsharing the learning fromcomplaints acrossthe prison estate. They do so in a coordinatedmanner, similar to theway inwhich the ScottishGovernmentHealth andSocial CareDirectoratemonitors and follows up on implementationof SPSO recommendations and draws theattention of all relevant organisations to issuesacross the sector. The SPSacts quickly by issuinggovernor andmanager action notices, andwe alsooften find that at a local level staff have alreadytaken action to address the issues complainedabout. In such cases, althoughwemay uphold thecomplaint, we usually findwedonot need tomake any recommendations.

One example of this occurredwhen amancomplained that hismail had been given toanother prisoner bymistake (case 201200440).When the prison investigated, they found that thishad indeed happened.We found that theirinvestigationwas thorough, and had identified thatthe problemwas down to humanerror rather thana systemic failure. They had not been able to findthemissingmail, but had apologised andhadretrained staff in issuingmail to prisoners. Inanother example (case 201201469) a prisonercomplained that hewas not paid the correctamount for attending education sessions. Ourinvestigation found that althoughhe had attended64 lessons, hewas only paid for eight.Weupheldhis complaint but did notmake recommendationsas the prison had already taken action toreimburse him for the unpaid lessons.

In a further case, aman complained about beingallocated prisonwork thatwas unsuitable becausehe had asthma (case 201201814). However, oncontacting the prisonwe learned that they hadsorted out the problemby finding himamoresuitablework unit.We did not consider that therewas anything furtherwe could do andwe closedthe complaint after explaining this to the prisoner.


CASEWORK

Prisoner healthcareWestarted to receive complaints fromprisonersabout their healthcarewhen the ScottishGovernment transferred the responsibilityfor prison healthcare to local health boards.It was previously the responsibility of the SPS,who responded to complaints on behalf ofScottishMinisters.We began to take thesecomplaintsmore than halfway through the year2011/12, so 2012/13 is the first year for whichwe have statistics for a complete twelve-monthperiod.

The table below shows the number and subjectof prison healthcare complaints received.We are still not seeing asmany complaints aswe anticipatedwewould, based on the numbersthat ScottishMinisters received before thechange.We have raised concerns about the lownumbers and published cases about what ourcomplaints showus is themain cause, which isthat prisoners have not had proper access to theNHS complaints procedure. Changes have beenmade to the process andwe are continuing tomonitor their impact.

Subject Complaints

Clinical treatment /diagnosis 36

Complaints handling 15

Policy/administration 7

Appointments/admissions(delay, cancellation,waiting lists) 2

Communication, staff attitude,dignity, confidentiality 2

Total complaints 62

By far themain subject of complaints receivedwas, as inmainstreamhealthcare, clinicaltreatment and diagnosis. These included casesabout how aman’s hand injury was treated; howoften dressings onwounds should have beenchanged; delays in dental treatment; failure toprescribe sleepingmedication; and treatmentfor drug addiction.

The second highest subject was complaintshandling. Prisoners told us that theywerefinding it particularly difficult to get beyond thefeedback stage of theNHS process, or to accessa complaints form.NHSusers are not requiredto complete a feedback formbefore accessingthe complaints system. In effect, it seemed thatthose in prisonwere having to takemore stepsthan they should in order tomake a complaint.The Scottish Government guidanceCan I helpyou?makes it clear that prisoners should betreated in exactly the sameway as thosemaking a complaint aboutmainstreamhealthcare – i.e. to complain to theNHSorganisation concerned, and then to escalatethe complaint to SPSO if they remaineddissatisfied.We published a detailed reportabout this inMay 2013 (case 201203514).

In 2012/13we dealt with 50 prison healthcarecases in total.Wewere not able to investigatemost of them for a variety of reasons, includingthe person having left prison and not havingprovided an address.More than half of thecomplaints were premature, in that they had notbeen through theNHS complaints system, orhad not been properly dealt with in that system.We investigated five cases that we did notuphold, and carried forward eight furtherinvestigations to 2013/14.


SHARING THE LEARNING

Publishing reportsEachmonth, we publish reports of asmanycases aswe can and lay thembefore Parliament.In 2012/13we published 108 decision reportsabout prisons,making thempublicly availableto raise awareness and to support learningwithin and across sectors. In doing this, we arecareful to protect the identity of the personwhocomplained and any individuals about whom thecomplaint wasmade. Althoughwe publish thevastmajority of our decisions, in a very smallnumber of caseswe take the view that evenpublishing anonymouslymight identify someone,or that there are other reasons for not publishing,such as a person’s vulnerability. In thesecircumstanceswewill exclude a case frompublication.

The bulk of the reports we publish are summaryreports of decision letters. These detail thecomplaint, our decision andwhetherrecommendationsweremade.We also publishsome full investigation reports eachmonth(although therewere only two about prisons in2012/13) where the public interestmakes itimportant that all the detail is in the publicdomain. All the reports are searchable on ourwebsite by organisation, date and outcomeand they provide awealth of information forcomplainants and organisations.We promotelearning from the reports through theOmbudsman’smonthly e-newsletter whichhighlights themes and issues fromour casework.It is sent to over 2,000 recipients, includingMSPs,scrutiny bodies, service providers, advocacyagencies and themedia.

In addition each year, as a tool for learning andimprovement, we send the SPS their ownstatistics to consider.We publish this annualletter on ourwebsite.

To read our decisions or search by subject,organisation or case reference number,visitwww.spso.org.uk/our-findings

Improving complaints standardsOurComplaints StandardsAuthority (CSA)wasestablished in 2010 toworkwith public bodiesto help drive improvement in public sectorcomplaints handling. The overall aim is to ensurethat complaints are handledmore simply,moreeffectively andmore consistently, and are resolvedat the first point of contactwherever possible.

The SPS, like all organisations under ourjurisdiction, have a statutory duty to complywiththe SPSO’s Statement of Complaints HandlingPrincipleswhichwas approved by Parliament inFebruary 2011. The CSAworked closely with theSPS in the early stages of the CSA’swork andfed directly into the development of the revisedcomplaints handling arrangements includedin the prison rules.We are content that thesearrangements continue to reflect the SPSOprinciples of complaints handling, particularlyin terms of a simple, streamlined process anddelivering early resolutionwherever possible.Our training unit also delivered a tailoredpackage of training to SPS staff in 2011/12.

Aswith all public service providers under ourremit wewill continue tomonitor complaintshandling arrangements on an ongoing basis,primarily through the complaints brought to thisoffice, andwill engagewith the SPSwhereverwe feel it is necessary.

There is more information about thisaspect of our work on the CSA’s websiteatwww.valuingcomplaints.org.uk

www.valuingcomplaints.org.uk

www.spso.org.uk/our-findings


CASE STUDIES

This is a selectionof case studies from investigationswepublishedaboutcomplaints about theSPS in2012/13. Someshowwhat cangowrongwhenpolicies arenot followed, or complaints arenot investigatedproperly. Others are included to showsomeof thepositive actions takenin response to complaints, orwhere complaintswerehandledandinvestigatedwell. To share this goodpractice, the reports onourwebsitenormally highlightwhereanorganisationhas takensuchaction.

Awomanwho had been given a life sentence complained that the prisonwereunreasonably holding her back fromprogressing to less secure prison conditions.She said shewas discriminated against because she hadmaintained her innocence,and sowaswithheld fromprogressing. She said she had been told preparations forprogressionwould start when her appeal against convictionwas over, but this hadnot happened.

Our investigation found that after her appeal was decided, and although there had beendiscussions inwhich action points were agreed, there seemed to be little progress sometwentymonths later. Althoughwe appreciated that this casewas complex, and difficult forthe prison tomanage, we upheld her complaints.We found evidence to suggest that theapproach taken by some staff in relation to thewoman’s progression, and in particular tohermaintaining her innocence, was unclear, norwas it clear what shewas expected to doto progress.We also found that her psychological risk assessment was delayed becausetherewas a lack of resources, therewas no clear and structured progression plan andcommunicationwas poor.

RecommendationsThe SPS review this case as amatter of urgency to ensure that appropriate andreasonable steps are being taken to progress the woman; and review the practice at theprison for the progression of prisoners who do not admit guilt, to ensure that staff aremanaging those cases appropriately, and in line with relevant policy.

Progression during/after appealCase 201104614


CASE STUDIES

A prisoner complained to us that he was transferred to another prison, although hewas just aboutto havemedical treatment in the prisonwhere hewas.We found that there were failings in the firstprison's handling of his transfer. Prison staff did not believe that hismedical treatment was criticalenough to stop the transfer, but prison health centre staff said he should not have been transferred.This was because he had a longstanding and painful condition for which hewas about to undergo aparticular treatment. Specialised equipment was on site, alongwith nursing staff whowere trainedin its use.We found no evidence to showwhether the transfer decision was taken after careful andproper consideration of all relevant information. Amember of the health centre staff told us thatthey had spoken to one of the prison staff after they became aware that theman had been listed fortransfer, to say that they thought the transfer inadvisable. Therewere no records of this conversation,or of the reasonswhy the first prison decided to transfer him despite this advice.

RecommendationsThe prison apologise for failing to respond to the complaint, and the SPS put in place a nationalprocess for all prison establishments to followwhen transferring prisoners, and ensure that theprocess allows for significant and relevant information to be obtained, considered and recorded aspart of the decision-making process.

Transfer decisions Case 201101643

Aman complained that the SPS did not tomake appropriate arrangements for him to leave prisonto attend a family funeral. The prison said that they had been told that the funeral was on a particularday, and had booked an escort to take him to the funeral on that day. The prisoner later told themthat the funeral was in fact the day before, but as he only told them on themorning of that day, theywere unable to arrange an escort for him to attend. The prison rules say that a prison governormaygrant escorted day absence if the prisoner applies in writing, but there was no evidence that the SPSasked him to do this. During our investigation, the SPS sent us evidence that indicated that theymight have received the wrong information about the day of the funeral from theman’s family. Wefound, however, that the problemmight have been prevented in the first place if they had asked himfor a written application as set out in the prison rules.

RecommendationsThe SPS take steps to ensure that the procedure for granting escorted day absence is in line with theprison rules and the relevant Direction by ScottishMinisters; and apologise to the prisoner for failingto adhere to the prison rules on escorted day absence in relation to the funeral.

Special escorted leave Case 201200718


CASE STUDIES

A prisoner complained about themedication decisions taken by his prison health centre. Hewasnot satisfiedwith the board’s reply and sent a follow-up letter. However, the board sent it back tothe health centre, unanswered, and the health centre gave it to him, with a note that advised himto follow the correct complaints process. Theman contacted us for help in getting a reply to hisfollow-up letter as he thought he had been following the process and did not knowwhat to do.

Initial complaints to health boards should go through the prison health centre. However, we tookthe view that follow-up lettersmay go direct to a board, whomay then tell the health centre thatthey have received the complaint, should theywish to keep staff there informed. It is notappropriate for a complainant to have to try to navigate a complaints system this way.We, therefore,sent the follow-up letter back to the board and asked them to reply directly to theman.We told himthat we had closed his complaint while he and the boardwere dealingwith it but that he couldcome back to us after that if he thought the complaint should be investigated further.

Complaints handling – prison healthcareCase 201202059

A prisoner received a visit fromhiswife and son. Afterwards, he complained that he felt he hadbeen discriminated against. He said hewas reprimanded for his son's behaviour, althoughanother prisonerwas not spoken to about a similarmatter. He also complained that hewasasked to clean up the area during the visit, and that his sonwas refused access to the toilet.Although the SPS responded to his complaint, he told us that they had not responded about theissues of toilet access or discrimination. He also complained that the prison had not viewedavailable CCTV footage. Our investigation found that the prison had not addressed either of thoseissues. Given the nature of this allegation, and the fact that therewere conflicting accounts ofevents, we also considered that it would have been reasonable for the prison to have examinedCCTV as part of their investigation and drawn upon this in their response.

He also complained that the prison took threeweeks to respond. We found that a holdingresponsewas issuedwithin the seven day target timescale andwe did not consider a furthertwoweek delay to be excessive or unreasonable.We did not uphold this complaint, butmade arecommendation because the holding response did not offer an explanation for the delay anddid not provide a specific timescale for responding

RecommendationsThe SPS highlight to staff that any allegations of discrimination should be recorded and treatedas such, and should be appropriately investigated and addressed in the complaint response;apologise for failing to respond to all aspects of the complaint; and the governor should ensurethat, where he is unable to respond to complaints within seven days, he takes steps to explainthe reasons for the delay and provides a target timescale for responding.

Complaints handling – prison visitCase 201104967


CASE STUDIES

A prisoner complained because he said hewas denied the opportunity to question thewitness at hisdisciplinary hearing. This is a hearing held to determinewhether a prisoner has broken prison rulesand, if they have, to impose an appropriate punishment. The SPS acknowledged that the hearingwasdelayed for seven days to allow theman to seek legal advice and to enable the reporting officer (whowas awitness) to attend. SPS guidance on disciplinary hearings says that prisonersmust be allowedto question the reporting officer andwitnesses, and the SPS told us that the adjudicator overseeingthe hearing confirmed that the prisonerwas given the opportunity to question the reporting officer.

We found no record in the adjudication paperwork of the prisoner questioning the reporting officer,and he disputed that hewas given this opportunity.We considered it reasonable to expect theadjudicator to recordwhether therewas an opportunity to question the officer. In the face of thedispute, the absence of such evidencemeant that the SPS could not demonstrate that they hadcompliedwith their guidance.

RecommendationsThe SPS take steps to ensure adjudication paperwork reflects whether the prisoner was given theopportunity to ask questions of the reporting officer or witnesses in line with the relevant guidance.

Disciplinary charges – orderly roomproceedingsCase 201105057

A prisoner complained that the prison took too long to process a request for additional phone credits.He took his complaint to the ICC, and asked to call as awitness themanager responsible forhandling his request. The ICC chair refused thewitness request but then spoke to thatmanagerabout the complaint. Theman complained to us that his witness request was improperly refusedand that they did not address his complaint about delay.

Our investigation found that the prison rules allow the chair to refusewitness requests only wherethey are satisfied that the evidence thewitness is likely to givewould be of no relevance or value inconsidering the complaint. In this case, as the chair had discussed the complaint with the requestedwitness, we could not agree that their evidencewould not potentially be relevant or valuable, andconcluded that the refusal of the request was inappropriate.We also noted that the responsemadeno reference to timescales, and sowas inadequate.

RecommendationsThe SPS remind staff that when they act as ICC chairs they have a duty to refuse witness requestsonly where they are satisfied that the witness will be of no relevance or value to the consideration ofthe complaint and that it would be good practice for them to record their reasons for refusing suchrequests; issue a fuller response to the complaint, addressing the complaint of delay; and apologisefor the inappropriate handling of the complaint.

Complaints handling – actions of ICC chairCase 201201468


CASE STUDIES

Aman complained that the SPS had not properly investigated his claim that several of his books hadgonemissing in prison. He said that although he gave the prison information about themissingbooks, therewas a delay in sorting this out.We found that when theman transferred to the prison hehad 12 books. Some time later he asked staff to give his books to his family. However, he discoveredthat his books had instead been lent out to other prisoners. Staff had only noted that he had one bookwith himwhen hewas transferred to the prison, and checkswith the previous prison showed that thenumber of books he hadwhen he transferredwas not properly recorded.

Themanprovided the prisonwith the names ofmost of themissing books, althoughhe could notremember themall. He also raised concernswith the governor that the investigationwas not finished,despite being assured it would be done before hewas transferred again. Somesixmonths later, theprison apologised for the delay, and offered compensation for eight books that could not be recovered.

We upheld this complaint, aswe considered that a delay of over sixmonths in investigatingwasunacceptable.We did not, however, have any significant concerns about the actual investigation, aswe found that the prison took reasonable steps to try to recover themissing books, even though onlyfourwere found. This included obtaining records fromhis previous prison and recalling all prisonerlibrary books to search for titles similar to those that he recalled having.

RecommendationsThe SPS remind staff at the prison of the importance of recording all prisoner property; and adviseus of the outcome of the prison's review of the reception processes for such books.

Missing personal property Case 201103423 Positive action takenby organisation

A prisoner complained that hewas not allowed to have two specific electrical items although he hadbought them in a previous prison andwas allowed to use them there.We found that the policy in theprevious prison permitted the items, but that prison governors have discretion about the items theyallow in their establishment.We obtained a copy of his current prison's 'articles in use' policy, whichconfirmed that the itemswere prohibited. However, the prison had already acknowledged thediscrepancy and offered to reimburse him the cost of the items.We considered this reasonable.

We accepted that lack of consistency across the prison estate could be a source of frustration forprisoners. However, as the SPS confirmed that theywere currently taking steps towards sourcing anational supplier for electrical goods and developing a uniformpolicy across the estate, wemadeno recommendations.

Articles in use – personal property Case 201104125Positive action takenby organisation

A prisoner complained that the SPS did not follow proper procedures when he received some cashby post in prison. After he complained, they acknowledged that there had been amistake, and thatprocedures had not been followed. They also apologised and told himwhat they were doing to stopthis happening again. We upheld his complaint, but as the SPS explainedwhat they had done toremedy what went wrong, we had no recommendations tomake.We did, however, check that theSPS taken this action.

Finance proceduresCase 201103520 Positive action takenby organisation


Further information about this sector is available on ourwebsite atwww.spso.org.uk/statisticsPrisonCasesDetermined2012–2013

STATISTICS

Casetype

Stage

Outcome

Enqu

iryA

dvic

e&

sign

post

ing

Enqu

iry0

10

00

00

00

12

Total

01

00

00

00

01

2

Totalenquiries

01

00

00

00

01

2

Com

plai

ntA

dvic

eM

atte

rout

ofju

risdi

ctio

n(d

iscr

etio

nary

)0

00

10

00

00

01

Mat

tero

utof

juris

dict

ion

(non

-dis

cret

iona

ry)

00

40

00

01

05

10

No

deci

sion

reac

hed

15

34

71

29

134

67

Out

com

eno

tach

ieva

ble

00

00

01

01

01

3

Pre

mat

ure

04

04

12

74

321

46

Total

19

79

84

915

461

127

Early

Res

olut

ion

1M

atte

rout

ofju

risdi

ctio

n(d

iscr

etio

nary

)0

10

01

01

10

04

Mat

tero

utof

juris

dict

ion

(non

-dis

cret

iona

ry)

22

22

64

33

10

25

No

deci

sion

reac

hed

25

03

13

86

10

29

Out

com

eno

tach

ieva

ble

22

00

01

00

00

5

Pre

mat

ure

02

12

12

70

10

16

Total

612

37

910

1910

30

79

Early

Res

olut

ion

2Fu

llyup

held

04

11

01

12

20

12

Par

tlyup

held

03

11

00

11

30

10

Not

uphe

ld2

53

43

517

267

072

No

deci

sion

reac

hed

00

00

00

01

10

2

Total

212

56

36

1930

130

96

Inve

stig

atio

n1

Fully

uphe

ld0

00

01

02

00

03

Par

tlyup

held

01

00

00

10

10

3

Not

uphe

ld0

00

10

02

21

06

No

deci

sion

reac

hed

01

02

00

00

00

3

Total

02

03

10

52

20

15

Inve

stig

atio

n2

Fully

uphe

ld1

00

00

00

10

02

Total

10

00

00

01

00

2

Totalcom

plaints

1035

1525

2120

5258

2261

319

Totalcontacts

1036

1525

2120

5258

2262

321

Note:

No

deci

sion

reac

hed'

incl

udes

notd

uly

mad

e,w

ithdr

awn

and

reso

lved

.

Admission,transfersanddischarge

Communicationandrecords

Discipline

Health,welfareandreligion

Leavefromprison(includinghomedetentionleave)

Physicalandpersonalenvironment

Privilegesandprisonersproperty

Security,controlandprogression

Work,education,earningsandrecreation

Subjectunknownoroutofjurisdiction

Total

www.spso.org.uk/statistics

www.spso.org.uk/statistics

SPSO4 Melville StreetEdinburghEH3 7NS

Tel 0800 377 7330Fax 0800 377 7331Web www.spso.org.ukCSA www.valuingcomplaints.org.uk

SPSO prisons complaints report 2012 13

Documents

Transcript of SPSO prisons complaints report 2012 13