law

Published: 28/08/2003, Volume II3, No. 5870 Page 25

Susan Thompson on NHS provision of healthcare to prisoners

The transfer of responsibility for the primary healthcare needs of prisoners to the Department of Health seeks to tackle current health inequalities with the aim of enabling prisoners to enjoy the same quality and range of services as other NHS users.

The 1999 paper by the joint Prison Service and NHS Executive working group, The Future Organisation of Prison Healthcare, reported that the current service was 'often reactive rather than proactive, overmedicalised with health needs assessments being the exception'.

'Lack of direction, poor lines of communication and confused accountability resulted in many instances in less than optimal healthcare delivery.'

This shortfall has not gone unnoticed. Prison has been seen as failing to offer a suitable therapeutic environment for the mentally ill, and its professionals have been identified as not always working to standards expected in the NHS. Closing this gap will take time. Since April, prison healthcare has been the joint responsibility of the NHS and the prison service.

But from 2006, the NHS will be going it alone.Where are the main areas of challenge for the primary care trust with a prison on its doorstep?

Decisions about what services will be provided - and by whom - will be the responsibility of the local PCT.

Addressing prisoners' often complex needs such as mental illness, drug and other addictions and improving their general health will be high up the agenda.

Studies have suggested that over 90 per cent of all prisoners suffer from mental health problems, and that suicide is eight times more likely than the norm. The number of prisoners with HIV is increasing and a large percentage smoke, though smokingcessation programmes have already been targeted towards prisons. But these varied and demanding needs present opportunities as well as challenges to PCTs.

Article 2 of the European Convention on Human Rights places a duty on the state to protect life. This principle has been well rehearsed in the prison setting where the risk of selfharm, suicide or injury to others is high. Detaining authorities owe a duty of care to protect life in the prevention of suicide when someone is known to be at risk or where the risk should have been identified. Risk assessment and management will be the responsibility of both the prison service and prison health.

The PCT will want clarity on who is responsible for what, ensure there are robust systems in place for the assessment and management of risk and that staff are appropriately trained.

A prisoner has the same right to treatment - and to refuse treatment - as anyone else.

Interventions to maintain good order or discipline - which might include control and restraint, segregation or special accommodation - will be the responsibility of the prison.

But there may be occasions on which intervention will be necessary to meet the prisoner's health needs. Treatment may be given when it is needed on the grounds of necessity or where they lack the capacity for consent, but otherwise the prisoner has complete autonomy.

Because of the spontaneous violence that can arise in prisons, it will be important that both prison and health staff are clear about their roles and the basis for their actions. Close liaison with prison staff will therefore be crucial.

The prisoner's right to confidentiality is also not diminished in prison and there is a need for robust informationsharing policies.

Prisoners receive an inmate medical record on reception, which would normally be available to healthcare staff and can also be requested by the prisoner under the Data Protection Act 1998. Reports to the parole board may also include health information, and in adjudication proceedings the panel can request information from a prison medical officer.

Information may be disclosed without the consent of the prisoner in certain circumstances, although it is recommended that it should be sought first.

Effective commissioning and monitoring of services and resources will be needed, but this is no more than is required of PCTs already.There will be accountability internally of the PCT board and externally - presumably to the Commission for Healthcare Audit and Inspection and also the local authority's overview and scrutiny committee.

Clinical accountability and training of professionals will need addressing to ensure that standards are maintained.

Whether or not PCTs will ultimately be legally accountable for individual or system failures is still unclear, but PCTs will clearly be in the frame as the expectation of prisoners is raised in terms of delivery and quality of healthcare.

The transfer may involve service reconfiguration, including staffing, use of premises and equipment, allocation of liabilities and indemnities and consultation.

Contracting outside the NHS currently means agreements will be legally enforceable and service outputs and standards will need to be specified to reduce the risk of service failures and the potential for disputes in the event of a claim by prisoners or others involved in their care.

Further information

Range of recent guidance on prison healthcare www. doh. gov. uk/prison health/publications. htm

Prison Service health policy unit www. hmprisonservice. gov. uk/life/dynpage. asp?

Independent monitoring boards www. homeoffice. gov. uk/ bov/main. htm

Susan Thompson is a partner at law firm Bevan Ashford www. bevanashford. co. uk