Individual at Shepton Mallet

Circumstances surrounding the death of a man
at Shepton Mallet Community Hospital, while in the
custody of HMP Shepton Mallet, in September 2008
Report by the Prisons and Probation Ombudsman
for England and Wales
April 2009
This is the report of an investigation into the death of a man at Shepton Mallet
Community Hospital on 23 September 2008, while in the custody of HMP Shepton
Mallet. The man was 45 years old and had been terminally ill for some time. I would
like to offer my condolences to the man’s family for their loss and to all those who
were touched by his death.
The investigation was conducted on my behalf by one of my investigators. I also
asked Somerset Primary Care Trust (PCT) to conduct a clinical review into the
standard of healthcare the man received while in custody. The clinical review was
carried out and his report is attached in full as an annex. I would like to thank the
Governor of Shepton Mallet and his staff for their co-operation and assistance with
the investigation. I am particularly grateful to staff for making all the practical
arrangements for my investigator.
The man had been diagnosed with a malignant melanoma (the most serious type of
skin cancer with a high risk of spreading) in March 2008. Further tests in April
confirmed that the melanoma had spread and was affecting his lungs. In addition,
the man experienced symptoms of headaches and unsteadiness, which further tests
in June confirmed to be caused by a lesion on his brain. The man was given
palliative radiotherapy and transferred to Shepton Mallet Community Hospital on 12
September, 11 days before his death, when his pain could no longer be managed in
prison.
I am satisfied that the man received a high standard of care at Shepton Mallet and
that staff did all they could to manage his illness effectively. Indeed, there is much
within this report of which the Prison Service can be proud.
I make one recommendation, derived from the clinical review. This is addressed to
the Primary Care Trust and relates to the “two week rule” in respect of the referral of
patients suspected of having a malignant disease. I have also commented on the
extent to which decisions on compassionate release are influenced by a culture of
risk-aversion.
Stephen Shaw CBE
Prisons and Probation Ombudsman April 2009
2
CONTENTS
Summary 4
The investigation process 6
HMP Shepton Mallet 8
Key findings 9
Issues 19
Recommendation 25
Annexes
3
SUMMARY
The man first entered custody on remand at HMP Winchester in April 1987. He was
later convicted of murder and sentenced to life imprisonment. He had been in prison
custody for 21 years when he died at Shepton Mallet Community Hospital on 23
September 2008. He was 45 years old.
During his more than two decades in prison, the man moved between various
establishments. In most of these he had regular contact with healthcare staff. The
most significant was at HMP Wormwood Scrubs where he had problems with his
stomach and was diagnosed with a hiatus hernia and acid reflux. Following
investigation, this condition subsided and the man had no further recurrence of this
illness for the remainder of his time in custody. At another prison, the man was
diagnosed as an asthmatic but this was managed effectively.
The man arrived at HMP Shepton Mallet in February 2003. On his reception, it was
recorded that he had no medical problems. During his first four years at the prison,
he was seen regularly by healthcare staff for advice regarding asthma and lower
back problems.
In June 2007, having reported sick, the man was seen by a prison doctor. The man
had a lesion on his right leg that the doctor felt would benefit from being cauterised
and this was carried out during the first week of August. The man then had no
further contact with healthcare until 3 September. He had developed a number of
lumps, similar to the one that had been removed, which were causing him
discomfort. A nurse referred him to the doctor and he was seen the same morning.
The prison doctor examined the lumps and recorded in the man’s medical notes that
he was to have a course of antibiotics and return to see the doctor if they appeared
to be getting worse.
The prison doctor next saw the man on 22 October. At this time, the doctor felt that
the man would benefit from having an ultrasound scan to determine what the lumps
were. The results of the scan were received by the prison on 29 October, and
indicated a number of lesions. A further scan was due to be carried out in five weeks
but when the prison saw the man again on 3 December, she informed him that she
was referring him to a specialist to rule out the possibility of cancer.
Over the next three months, the man underwent a series of further tests. On 19
March 2008, the prison doctor informed him that he had cancer and would require
either chemotherapy or surgery later. Subsequent tests revealed that the cancer
had spread to other areas of his body. A specialist informed the man on 10 June
that the cancer had spread to his brain. He was also told that life expectancy for
patients with this type of cancer could be less than six months.
Following the diagnosis, the prison ensured that a care plan was put in place for the
man and that he was kept informed about his treatment. He was keen to remain at
Shepton Mallet for as long as possible, but had also expressed a wish to be granted
release on compassionate grounds. The prison completed the necessary application
4
and submitted it on 26 June. In August, the prison and the man were informed that
his application for compassionate release had been unsuccessful.
On 12 September, the man transferred to Shepton Mallet Community Hospital as his
condition had deteriorated significantly and he required additional support. Over the
coming days, his family visited frequently along with staff from the prison. On 19
September, the prison resubmitted the application for the man to be released on
compassionate grounds. However, although the decision was favourable, it arrived
too late. The man died in his sleep on 23 September 2008.
I have endorsed one recommendation made by the clinical reviewer regarding
adherence to the Department of Health’s “two week rule” for suspected cancer
patients.
5
THE INVESTIGATION PROCESS
1. My investigator opened the investigation on 25 September 2008 when he
contacted Shepton Mallet to arrange for documentation to be provided. Notices
were issued to staff and prisoners informing them of the investigation process
and inviting anyone who had relevant information to come forward. My
investigator received one letter in relation to these notices from a prisoner who
said he was a close friend of the man. He wrote to praise the actions of staff at
Shepton Mallet in caring for his friend. My investigator spoke with him when he
visited the prison and he again told the investigator that he felt the man had
been well cared for.
2. I asked Somerset Primary Care Trust (PCT) to conduct a clinical review into the
care and treatment of the man at Shepton Mallet, in accordance with my terms
of reference. The clinical reviewer conducted a report and is attached in full as
an annex.
3. The Family Liaison Officer (FLO) from my office spoke to the man’s sister on
the telephone on 10 and 14 October. My family liaison officer told her about the
investigation being undertaken into her brother’s death and gave her an
opportunity to raise concerns and ask questions. The man’s sister identified
three issues of concern to her. These were:
(cid:127) Compassionate release
(cid:127) Escort at the hospital
(cid:127) Transfer to Bristol.
4. My investigator wrote to HM Coroner to inform him of the nature and scope of
the investigation. A copy of the report will be provided to the Coroner to assist
with his enquiries and the inquest process.
6
HMP SHEPTON MALLET
5. HMP Shepton Mallet is the oldest prison in the United Kingdom. Its current role
is that of a category C prison holding life sentence prisoners. The prison is
divided into four wings with the capacity to hold up to 186 prisoners.
6. HM Chief Inspector of Prisons, Dame Anne Owers, carried out an inspection of
Shepton Mallet in June 2008. In her report, Dame Anne said:
“Shepton Mallet is a small, old prison holding only life and other
indeterminate-sentenced prisoners. This short follow-up inspection
showed that, in spite of its physical constraints and problems, it
continued to provide a safe and positive environment and had indeed
improved the amount and quality of activities available. The prison was
a safe environment, which was particularly commendable given the
range of offences and the freedom of movement within the prison.
There was no evidence of bullying, and self-harm was rare. Mandatory
drug testing showed the prison to be virtually drug-free.”
Shepton Mallet does not provide 24-hour healthcare cover, but in relation to the
provision of healthcare Dame Anne’s report says:
“Healthcare services were generally good and professionally delivered.
The small team had a broad range of skills and met prisoners’ routine
clinical needs. Those with more complex conditions were able to get
hospital treatment quickly. One nurse had specific responsibility for
older prisoners. Chronic diseases management was excellent and well
supported by external health professionals. Mental health support was
good. Dental services met need and there was only a short waiting
list.”
7. The Independent Monitoring Board (IMB) at Shepton Mallet published their last
report in 2007. In relation to the provision of healthcare services the IMB said:
“As a lifer only prison the average age of prisoners is, as a
consequence, older than in many other prisons. The healthcare
department is an integral part of the prison. Due to the older
population a high number of prisoners have heart related problems due
mainly to the sedentary lifestyle they lead for many years. In support of
the care given by the team in healthcare there are regular clinics held
by the doctor, dentist, psychiatrist, optician, chiropodist and
physiotherapist. All patients are offered regular check ups for
hypertension, strokes, diabetes, epilepsy, asthma, obesity and a well
man clinic. During the year there have been no complaints submitted
using the patient advice liaison service.”
8. Since my office took responsibility in 2004 for investigating all deaths in prison
custody, there have been three previous deaths from natural causes at
Shepton Mallet. Recommendations that I made following these deaths are not
repeated in this report.
7
KEY FINDINGS
9. The man was charged with murder in April 1987. He was remanded into
custody and taken to HMP Winchester. On arrival into custody, he was seen
by medical staff and admitted to the healthcare wing for observation. This was
the normal protocol for prisoners who had been charged with murder, although
the man said that he had no suicidal thoughts. At the end of April, he was
moved to an ordinary wing where he settled in well.
10. The healthcare team at Winchester assessed the man in July 1987 when he
complained of stomach problems. He told the doctor that his general
practitioner (GP) had prescribed him medication before he entered prison and
he had also had tests but was not aware of the results. Further tests indicated
that the man was suffering from acid reflux (this is when acid from the stomach
leaks up into the gullet (oesophagus) and may cause heartburn and other
symptoms).
11. While on remand, the man had other minor ailments including conjunctivitis (an
irritation or inflammation of the conjunctiva, the lining of the eyelids and the
whites of the eyes). He also had a number of dental problems that were all
treated.
12. On 7 October 1988, the man was found guilty of murder and given a tariff
(minimum time to serve before release) of 15 years. He then returned to
Winchester and continued to be seen regularly by medical staff for reports to be
completed, as well as reporting sick for minor ailments.
13. The man transferred to HMP Wormwood Scrubs on 20 September 1989. The
prison doctor reviewed him on 28 September and recorded his previous
medical concerns at Winchester. The man’s stomach problems were of
particular interest to the doctor. He noted in the man’s medical file that he had
undergone various tests to identify a cause but had not been given an
endoscopy (a procedure where the inside of the body is directly examined
using a device known as an endoscope). In view of this, the doctor referred
him to a consultant who was due to visit the prison.
14. On 3 October, the visiting consultant assessed the man and concluded that his
symptoms had been present for five years. Further questioning of the man
confirmed that they had not changed recently and there was nothing to suggest
anything other than the previous diagnosis of a hiatus hernia (when part of the
stomach pushes up into the lower chest through a defect in the diaphragm - the
large flat muscle that separates the lungs from the abdomen and helps
breathing). The consultant recorded that, should the man’s symptoms change,
an endoscopy would be advisable. He subsequently underwent an endoscopy
in January 1990 that indicated nothing unusual.
15. The man attended healthcare during 1990 when he began to experience
blackouts. He reported passing out for up to 30 seconds and, on a number of
occasions, he sustained minor injuries as a result. The prison healthcare team,
in partnership with Hammersmith Hospital, Cardiology Department, arranged
8
for the man to undergo tests that included an electroencephalograph (EEG).
(An EEG records the electrical activity of the brain. It is a useful test to help
diagnose epilepsy.) A computerised tomography (CT) scan was also carried
out. (This is a detailed x-ray of the body using computerised images.) The
results of all these tests were normal.
16. Regular follow-ups by the healthcare team continued throughout 1990 and into
the following year. In May 1991, the man was seen in the prison by a visiting
consultant. It was recorded in his medical notes that he had not experienced
any further blackouts and he reported that he had been feeling well. There was
little contact with healthcare during the man’s remaining time at Wormwood
Scrubs.
17. On 18 March 1992, the man transferred to HMP Whitemoor. He remained
there for two years six months. During this time, he was only seen by
healthcare for minor problems. Over the next nine years, the man transferred
between HMP Maidstone, Albany, and Grendon and back to Albany. He had
contact with healthcare in all prisons, but his most significant problems appear
to have been asthma and lower back pain for which he received treatment.
18. The man transferred to Shepton Mallet in February 2003. Healthcare staff
recorded his medical history. They then saw him regularly to give him advice in
relation to his asthma. He also continued to experience back pain that made it
difficult for him to work in certain areas of the prison. His behaviour and
conduct in the prison gave staff no cause for concern, and he was popular
amongst other prisoners.
19. On 29 June 2007, a second prison doctor saw the man and recorded that he
had a lesion (abnormal tissue found on or in an organism) on his right leg. The
doctor wrote that it would require cauterising (use of heat or chemicals to stop
bleeding, prevent the spread of infection, or destroy tissue)at the next
opportunity.
20. Following a minor operation to remove the lesion on 8 August, the man had no
further contact with healthcare in relation to this ailment again until 3
September when a healthcare nurse saw him. The man had reported sick as
lumps similar to the one removed from his leg had increased in size and were
causing him discomfort. The nurse referred him to the doctor.
21. The prison doctor saw the man later the same morning and recorded in his
medical notes:
”Developed two fatty lumps approx one month ago – now enlarged,
tender no im injections etc, not diabetic, on examination inflamed,
warm slightly tender, non fluctuant lump 5cm x 10cm, ? Infected seb
cyst. For course antibiotics, see one week, or see Dr this week if
getting worse. If no response will need referral for biopsy in view of
rapid growth. No allergies need to check urine for glucose.”
9
22. The man was seen at least once a week for routine blood tests in relation to his
other chronic illnesses but no further mention was made of the lumps until the
prison doctor saw him again on 22 October. The doctor reviewed the lumps
and recorded in the medical record:
“Review of lumps – now not inflamed, tender, possibly got smaller but
ache on exam 4cm x 3cm lump subcutaneous (fatty tissue), left lumbar
region plus one smaller one ?cysts ?limpoma – for ultrasound. Form
completed.”
23. The ultrasound, referred to in the notes above, was completed and the results
received by the prison on 29 October. (An ultrasound is a diagnostic imaging
technique used to examine internal body structures including tendons, muscles,
joints, vessels and internal organs for possible lesions or other abnormalities.)
They indicated a number of lesions and it was planned to repeat the scan in
four to six weeks.
24. Over the next five weeks, the man was seen on a number of occasions by
members of the healthcare team for a number of different reasons. However,
none was in relation to the lumps. On 3 December, the prison doctor saw the
man and discussed the ultrasound results with him. She told him that it was not
a limpoma (a benign tumour composed of fatty tissue) and that she would like
him to be referred to outside hospital under the two week rule (a referral system
used by doctors to ensure that patients who they believe might have cancer are
seen by an appropriate specialist within two weeks).
25. The man was examined at the Royal Bath Hospital on 20 December by an
orthopaedic surgeon. The surgeon wrote to the prison doctor following the
appointment and said that he considered the lumps were likely to be abscesses
(a collection of pus). The surgeon said that the man was reasonably fit and
well apart from suffering from asthma. Although the lumps had no abnormal
features, the surgeon decided that a Magnetic Resonance Imaging (MRI) scan
was required and said that he would see the man again once this had been
completed. (An MRI scan provides much greater contrast between the different
soft tissues of the body than a CT scan, making it especially useful in
neurological (brain), musculoskeletal, cardiovascular, and oncological (cancer)
imaging.)
26. The MRI scan took place on 22 January 2008. The man attended the
surgeon’s clinic on 14 February and was told that the scan indicated a mass in
his lower back. A biopsy was required to investigate the cause. The surgeon
completed the biopsy on 5 March. He had an idea of the likely outcome and
informed the prison that the man could potentially require palliative care. The
tests confirmed the lump to be a malignant melanoma (cancer) on 17 March,
and the surgeon immediately made a referral to a Consultant Plastic Surgeon
at Frenchay Hospital, Bristol. The man was not made aware of the diagnosis at
this time.
27. The prison doctor spoke with the man on 19 March. She explained the results
of the earlier biopsies and told him that he had been referred to the Frenchay
10
Hospital. The prison doctor also told the man that he was likely to need either
chemotherapy or surgery but this would be decided later. The man discussed
his personal situation regarding family contact. The prison doctor invited him to
return at any time to discuss the diagnosis further with medical staff once he
had absorbed the information. The Healthcare Manager, spoke to the man the
following day on the wing. She suggested that, if he wished for his sister to
attend the outpatient’s appointment with him, it could be arranged. However,
the man said that he did not feel this necessary at that time.
28. The man continued to be seen regularly by healthcare for INR tests (a system
for recording the results of blood clotting tests). On 3 April, he attended the
Oncology Department at Frenchay Hospital and it was decided that he should
undergo a full body scan to determine the extent of the disease. The man
attended Bristol Royal Infirmary on 18 April for a CT scan. A week later, on 25
April, he returned for a biopsy of the mass in his lower back and arms.
29. On 27 May, the man attended a clinic at Bristol Haematology and Oncology
Centre to be assessed by a hospital doctor. The doctor confirmed that the
results of the biopsy showed the masses to be cancerous. He also told the
man that the CT scan taken earlier in April showed that cancer was present in
his lung. After the appointment, the doctor wrote to the healthcare unit at the
prison. In his letter, the doctor confirmed that the man currently felt well, and
that the area where he had the biopsy was healing well. However, he went on
to say that the man had expressed new symptoms of unsteadiness and
headache. In view of this, the doctor arranged for the man to undergo an
urgent MRI scan and return to the clinic in two weeks.
30. During the appointment in May, the doctor had also discussed with the man the
prognosis of metastatic melanoma (secondary cancer). He told him that the
survival rate was usually less than one year, but if the results of the MRI scan
were not favourable this could indicate a shorter life expectancy. The doctor
suggested that the man might wish to arrange for his sister to attend all future
appointments with him, but also offered to speak with her over the telephone if
the man preferred.
31. The MRI scan was carried out on 4 June and the man returned to see the
doctor a few days later on 10 June. The doctor told the man that the results
showed that the cancer had spread to his brain and was the cause of his
worsening headaches. The doctor discussed the treatments that would be
used to try and stabilise the man’s disease. The doctor also discussed the
prognosis in light of these new results. He indicated that, in the majority of
cases of patients with this form of cancer, survival could be less than six
months. In a follow up letter to the prison, the doctor said that it would be
entirely appropriate for the prison to make provision for the man’s deteriorating
condition. The doctor also indicated that he understood that the man’s sister
would be able to offer further support if he was to be released from prison. He
considered that it would be appropriate for the prison to start any process that
would facilitate this. All this information was communicated to the prison. Staff
were keen for the information regarding the prognosis to be put in writing as
11
soon as practicable so that an application for compassionate release could be
made.
32. The man was seen a couple of days later by healthcare staff at the prison who
provided him with the dates for his radiotherapy treatment. This was to be
given weekly starting from 27 June. Pain relief and alternative options were
also discussed. The man was prescribed a small dose of Diazepam to be
taken for the next two nights as he was feeling low and having trouble sleeping.
The man discussed his future with healthcare staff and said that even if he was
to be granted a downgrade in security status to category D (this is the lowest
security category and would mean that he would be suitable to be held in open
conditions), he would prefer to remain at Shepton Mallet for as long as
possible. The man said that when his condition deteriorated he wanted to go to
his sister in Bristol as she would care for him to the end of his life. This
information was recorded for the purposes of the compassionate release
application.
33. Over the next few weeks, the man was seen almost daily by healthcare staff as
his discomfort and pain increased. Nursing staff and doctors changed his level
of pain relief accordingly, and this provided some respite. The prison also
referred the man to Dorothy House Hospice in Bradford on Avon. The hospice
said that, while the man remained in prison custody, they would be willing to
provide advice on pain relief and management. The prison also pursued the
letter from the doctor relating to the man’s prognosis, which was required for
the compassionate release application. It was received by the prison on 23
June and the application submitted promptly to the Early Release Section at the
Ministry of Justice on 26 June.
34. On 26 June, the man was also placed on the prison’s disability register. This
tells staff of those prisoners with particular disabilities and their individual
needs. Because of this, the Disability Liaison Officer at Shepton Mallet, spent
time with the man discussing his needs and informing him of what could be
done to aid his day-to-day activities. In his notes of the meeting, the disability
liaison officer said that it was apparent that the man did not want to be a burden
to staff or other prisoners, but that he did understand the prison’s duty of care.
The man’s cell location was also discussed as he was on the twos landing (two
flights up) and it was becoming increasingly difficult for him to negotiate stairs.
The man was keen to remain where he was as he felt that he had a good
support structure in place. It was therefore agreed that, at an appropriate point,
he would be located on the ground floor of the same wing to maintain that
support. The disability liaison officer recorded that the man was very positive,
but fully understood that the treatment that he was about to begin was not a
cure and that he would eventually succumb to his condition.
35. The man attended his first appointment for treatment on 27 June. On his return
to the prison, a nurse saw him on the wing to discuss his sister accompanying
him to appointments. The man said that he did not feel this was necessary and
that he had been keeping her updated. The nurse also talked about the man’s
pain relief and the possibility of changing to morphine as well as his longer-term
wish. The man told the nurse that, although he would like to go to his sister’s
12
home, he would prefer to die in a hospice. The nurse explained that it was
important that his wishes were communicated to the wider team who were
looking after him and that his care plan was updated.
36. The nurse told my investigator that the man was likely to require an escort of at
least two staff, so a move to a hospice was considered unlikely. The nurse said
that the prison had to consider the feelings of other patients at the hospice if the
man was moved there. However, a palliative care nurse from Dorothy House
Hospice visited the prison on 30 June to offer advice to the nursing staff
responsible for the man’s care. Arrangements were also made to provide a
teaching session for wing staff who were responsible for the man.
37. Over the next few weeks, nursing staff at the prison assessed the man daily
and checked his levels of pain relief, making changes where necessary. The
healthcare team were also in regular contact with outside agencies, including
Dorothy House Hospice and Macmillan nurses, to obtain advice on the man’s
care. The man’s sister also contacted the prison, and discussed at length with
the Healthcare Manager the long-term plans for her brother. She expressed
her wish for him to be allowed to be cared for at her home. The Healthcare
Manager said that she would contact the appropriate department to check the
progress of the compassionate release application. The Healthcare Manager
also spoke to the matron at Shepton Mallet Community Hospital regarding a
bed being made available for the man should it be required. Once moved to
the community hospital, the man would receive the same level of care that
would otherwise be provided in a hospice.
38. A meeting took place on 22 July 2008 between the Healthcare Manager, the
nurse, and a governor to discuss the man’s care. In a letter sent by Mr Hunt to
the Healthcare Manager, he set out the four areas that had been discussed:
”Concern that some staff and prisoners may need support as the man’s
illness progresses. We agreed that weekly informal meetings involving
chaplaincy, healthcare, wing staff and prisoners should be held on A
wing each Friday at 9.30am.
”We discussed what help could be provided by the Palliative Care
Nurse and whether we should commission some staff training.
”We discussed options for pain relief and following a risk assessment
agreed that from a security perspective Fentanyl Patches (synthetic
morphine) could be safely managed providing suitable control
measures are put in place. The patches are self-adhesive and have a
minimum dosage of 25 micro grams and a maximum of 100. The
patches are a controlled drug and will be checked for compliance daily
by healthcare and changed every 72 hours.
”We agreed from a security perspective, options for pain relief will have
to be reviewed when Fentanyl Patches cease to deliver sufficient pain
relief.”
13
39. At the beginning of August, the prison was notified by the external probation
officer that the man’s sister’s home address had been deemed unsuitable for
him to be released to. The prison did not at this stage inform the man but
awaited the final decision from Early Release Section. The man continued to
receive daily support from wing staff, prisoners and healthcare staff. It was
apparent that the pain in his head was causing continued discomfort, but when
spoken to by nursing staff he said that he had no fears and he remained
mobile.
40. Following an appointment with the doctor at Bristol Royal Infirmary on 12
August, the prison was notified that the man could not be offered any further
radiotherapy. He would, however, begin chemotherapy every three weeks.
This would have no effect on the lesion on the man’s brain but would help with
the tumours elsewhere. The nurse spoke with the man on his return from the
appointment and recorded that he was “shell shocked”. She visited him again
the following day when he appeared to be calmer.
41. On 20 August, the nurse met the man’s sister at the prison. She provided a full
update on the speed and progression of the man’s illness and the management
plan put in place by healthcare. The governor also spoke to the man’s sister to
discuss the non-medical aspects of her brother’s care, and explained that a
final decision had yet to be made by Early Release Section on the
compassionate release application. The nurse recorded that the man’s sister
was appreciative of the time that had been provided to explain things to her.
42. Over the next week, the man’s condition was reported by wing staff to be
noticeably getting worse. He had failing mobility and his fine motor skills were
deteriorating. However, wing staff were grateful for the support provided by the
hospice team. On 25 August, the man mentioned to nursing staff that he felt he
had experienced a fit in the early morning as his tongue was bruised. He
expressed concern about losing control of his bodily functions if this happened
again, and was told that medications could be prescribed if necessary.
43. The man was informed on 28 August by the governor and the nurse that the
application for compassionate release had been unsuccessful due to the home
circumstances being unsuitable. The nurse saw him the following day. She
told him that she had spoken to his sister and informed her of the decision. The
man reported that he had not slept well, but was now feeling very tired so was
returning to bed.
44. At a multi-disciplinary team meeting, held on the man’s wing on 5 September,
staff discussed resubmitting an application for compassionate release. The
team also looked at the number of staff that would be required to escort the
man if he needed to be admitted to outside hospital, as well as his level of care
and support. In addition, support for other prisoners, particularly those close to
the man, was also discussed.
45. The man began to use a Zimmer frame to aid his mobility. On 8 September,
The nurse recorded that he had decided not to go ahead with chemotherapy
and to cancel all the appointments. The man also spoke to the nurse about
14
resuscitation and said that, in the event, he did not wish to be resuscitated.
The man said that he had had enough and felt that he would rather be in
hospital. However, the nurse pointed out to him that he had more
independence and control while in the prison. When the nurse visited him
again the following day, the man appeared much brighter. The nurse recorded
that he seemed calm and at peace.
46. Over the next week, however, the man’s condition deteriorated further and on
12 September arrangements were made for him to be transferred to Shepton
Mallet Community Hospital. The prison kept the man’s sister informed of his
condition and notified her of the transfer.
The man’s transfer to Shepton Mallet Community Hospital
47. The man was transferred to Shepton Mallet Community Hospital by non-
emergency ambulance at 6.00pm on 12 September. He was escorted by two
prison staff but was not restrained. On arrival at the hospital, the man was
placed in a side room. The Healthcare Manager visited the man shortly after
he had been admitted. He slept through the night and was settled. The
escorting staff remained in the room with him. The next morning, the man did
not feel like eating the food he was offered, but was taking fluids. Later that
afternoon, his sister and brother visited and stayed with him for an hour. He
remained settled for the remainder of the day and had another reasonable
night.
48. Staff recorded in the bedwatch log that the man was polite and courteous when
they attended to him the following day. Despite encouragement from both the
escort staff and nurses, he continued to eat very little and spent large parts of
his day sleeping. The healthcare nurse visited the man during the afternoon.
He also had visits from both the prison chaplain who came several times, and
the resident hospital chaplain. During the late afternoon, the man’s sister rang
the hospital. She spoke with nursing staff and her brother, but their
conversation only lasted about two minutes as he was very tired. Nursing staff
continued to encourage him to eat, but he declined and only drank water. The
man had another quiet night.
49. On 15 September, the escort staff were told by the nursing sister that the man
was unable to walk unaided and this was likely to remain the case. In view of
this, the staff contacted the prison so that the risk assessment could be
reviewed. The Healthcare Manager visited the hospital later in the morning and
recorded in the man’s medical notes that he recognised her and seemed quite
bright. He was not eating much and would drift in and out of sleep. The prison
again completed an application for the man to be released on compassionate
grounds due to the deterioration in his condition. At 1.00pm that afternoon, the
escort was reduced to one officer in light of the information regarding the man’s
mobility. At around 6.00pm, the man was given some soup, which he managed
to eat, after which he slept for the remainder of the night.
50. The next day, the man remained settled and the bedwatch log shows that he
again spent the morning dozing and ate very little. However, at 2.00pm a
15
Senior Officer contacted the escort staff and informed them that they would
revert to a two-officer escort. The reasons are not recorded in the log.
However, an entry in the man’s medical record by the Healthcare Manager
gives the reason as concerns raised by hospital staff about the number of rest
breaks the escort officers were having. They reported that on one occasion
they had found the man trying to get out of his bed while the officer was on a
break. (My investigator was unable to confirm the exact details with the
hospital and, apart from the entry by the Healthcare Manager, there is no other
information.) The man was given a hot meal at teatime and attempted to eat
some food. He then slept and, although restless during the night, the escort
staff raised no concerns.
51. Over the next few days, the man’s condition remained the same. His family
and members of the prison chaplaincy team visited him. Nursing staff
continued to encourage him to take food and he would eat a small amount but
was unable to manage any more. On 19 September, Nursing Sister Frost told
the escort staff that, following a visit by Governor Bugdale the previous day,
they would be happy for the escort to be reduced on the condition that the
officer remained in the room when the nursing staff were in close contact with
The man. As a result, at 2.00pm the escort was returned to a single officer.
The Healthcare Manager visited The man again later that day and recorded in
his medical record that he was slowly deteriorating. His sister had also visited
but they were unable to hold a conversation as he drifted in and out of sleep.
The compassionate release application was re-submitted to the Early Release
Section. Due to his deteriorating condition, The man was catheterised that
afternoon. Nursing staff attended to The man as required to make him
comfortable, but he continued to sleep for the remainder of the day.
52. The man’s condition continued to deteriorate slowly over the next couple of
days and, on 22 September, the Healthcare Manager contacted the hospital for
an update on his condition. The Healthcare Manager was informed that the
hospital had initiated the Liverpool Care Pathway (LCP) for end of life care (the
LCP ensures that dying patients are cared for in the same way regardless of
the setting). The Healthcare Manager and the nurse visited the hospital later
that day to see the man. The man’s eye movements indicated that he
appeared to recognise their voices. It was recorded in his medical notes that
the man’s sister and brother were with him and had been at the hospital all day.
His family said that they felt it would not be long before he passed away and
they planned to visit again the following day. During the visit, The Healthcare
Manager explained to the man and his family that the papers for
compassionate release had been re-submitted and they were hopeful that he
would be released. The staff felt that he understood what he was being told.
53. The following morning, both the Healthcare Manager and the prison chaplain
visited for a short time. The hospital contacted the man’s sister as his condition
had deteriorated further and she arrived at 12.00 noon. An intravenous line
was put into the man, as he was unable to take his medication orally. The
man’s brother arrived at the hospital at 5.15pm. The Healthcare Manager and
the nurse visited again but stayed only a short while. The man’s sister left the
hospital at 6.10pm and his brother remained until 8.15pm. Nursing staff
16
continued to check on the man, and at 11.10pm it appeared that he had
stopped breathing. The Deputy Matron checked for signs of life and it was
apparent that the man had passed away peacefully in his sleep. The doctor
confirmed his death at 11.45pm.
Events following the man’s death
54. A second Governor visited the hospital at 11.50pm and spoke with the officer
who had been on duty at the time of the man’s death. The Governor asked the
officer how he was feeling and offered counselling if required.
55. The Deputy Matron telephoned the man’s sister to inform her of his death. The
Governor spoke to her the following morning to offer the condolences of prison
staff and to offer support. The Governor also invited the man’s family to visit
the prison in order to speak to staff and prisoners who knew their brother.
56. The Governor also wrote to the man’s sister on 26 September. In his letter, he
expressed his disappointment that the decision on compassionate release had
not been made in time for the man to pass away as a free man. The Governor
added that he had also hoped for this, as it would have made it unnecessary for
the added distress of an Ombudsman’s investigation and Coroner’s inquest.
57. The prison chaplain officiated at the man’s funeral on 6 October. This was
attended by the Governor and other members of staff from Shepton Mallet.
The prison chaplain also held a memorial service for the man at the prison so
that prisoners had the opportunity to pay their respects.
17
ISSUES
58. The man’s family mentioned three areas of concern that they wished to be
examined during the investigation process. I address these first in the following
section of this report.
Compassionate Release
59. The man’s sister expressed concern at the length of time that it had taken for
the compassionate release application to be considered. She said that she had
found the system very closed and difficult to understand for someone not
connected to the prison system. The man’s sister told my Family Liaison
Officer (FLO), that she was angry the system was not flexible enough to
respond to such a rapid deterioration in someone’s health.
60. My investigator, contacted the Early Release Section in the Ministry of Justice.
This is the department responsible for considering and responding to all
applications for compassionate release. My investigator asked the caseworker
who dealt with the man’s application to clarify three points that he considered to
be the main issues for the man’s family:
(cid:127) Is there an agreed timescale for responding to a request for compassionate
release? If so what is it?
(cid:127) What were the reasons for the initial refusal in August 2008?
(cid:127) Was the man finally granted release and, if so, what additional factors in the
second application influenced this?
61. The case worker responded to each of my investigator’s questions:
(cid:127) Since life expectancy for prisoners suffering from terminal illnesses can vary
significantly, there is no set timescale for consideration of a compassionate
release request. However, these cases are treated as a matter of urgency
and are considered as soon as is possible. Depending on the specifics of
the case, the Public Protection Casework Section will need to seek
guidance from several different departments or organisations including
Prison Service Medical Advisors, the Probation Service, the Parole Board,
and Senior Ministers.
(cid:127) In order for a compassionate release to be considered, all of the following
criteria must be met:
- The prisoner is suffering from a terminal illness and death is likely
to occur very shortly, or the prisoner is bedridden or similarly
incapacitated (for example, those paralysed or suffering from a
severe stoke).
- The risk of re-offending (particularly of a sexual or violent nature)
is minimal.
- Further imprisonment would reduce the prisoner’s life expectancy.
18
- There are adequate arrangements for the prisoner’s care and
treatment outside prison.
- Early release will bring some significant benefit to the prisoner or
his/her family.
In the man’s case, at the time of the initial application it was not judged that
these criteria had been met. The Probation Service did not support
compassionate release and had several concerns, including that the man
had not fully addressed his offending behaviour whilst in custody and that
he still maintained that the murder of his victim was accidental.
Consequently, it was assessed that his risk of harm was higher than
minimal and that it would not be appropriate to release him into the
community without a period of testing in open conditions.
(cid:127) The man had indeed been granted compassionate release in response to
the second application. Sadly, he had died before the final approval from
Ministers could be obtained. At the time of the second application, the
Public Protection Casework Section had been told that the man’s condition
had substantially deteriorated, and that he was now bed-bound with a life
expectancy of one or two weeks. It was thought that this level of physical
incapacitation, which had not been present at the time of the initial
application, meant that his risk of re-offending had been reduced to a level
where he could be safely released.
62. The issue of compassionate release and the timeliness of decisions have been
frequently raised by families in my investigations into deaths of terminally ill
prisoners. I entirely understand the frustration of families who attempt to
understand the process. It must seem to them to be long and unnecessary,
when all they want is for a loved one to be released and be free to die without
the intrusion of escort staff. However, I also understand that the process is
designed to ensure that an informed decision is made and that the protection of
the public is fully considered. I hope that the answers provided by the case
worker enable the man’s family to understand the process better and the
reasons behind the decisions. However, like most such decisions that I review,
the reasons were extremely risk-averse. By August 2008, the man was already
very ill and had limited mobility. The degree of risk he posed to the public was
frankly negligible. While I appreciate the concerns raised by the Probation
Service, they had to be balanced against the man’s then state of health, and
the rate at which it was deteriorating. The decision of the Early Release
Section not to recommend release in August was not unreasonable in the
circumstances. But it is not hard to see how a different decision could have
been reached in a more risk-neutral climate.
Escort Arrangements
63. The man’s sister stressed to my FLO that she could not fault the behaviour of
the escort staff who accompanied the man at the hospital. However, she
questioned whether it was necessary for there to be two staff on duty (although
this was later reduced to one). It was also a concern that the staff remained in
the same small room with the family, and the man’s sister thought the staff
19
themselves were embarrassed by this. My investigator asked the prison to
provide the reasoning behind this decision. The Governor replied as follows:
”The escort does have to be in the same room at all times. The staff
have to be close enough to actively supervise the prisoners at all times.
If the prisoner needs to use the toilet, the staff have to go with him to
check the area before it is used and then remain immediately outside
of the door. If there are two staff on the escort then one has to be
physically attached to the prisoner usually by the escort chain but this
means the member of staff must be only a few feet from the prisoner.
“A full risk assessment must be carried out on any prisoner going out of
the prison. A decision then has to be taken on whether the escort
should be one or two officers. Only in exceptional circumstances
would more be required. In this case, the man was still considered a
danger to the public and mobile enough to escape. As he became
immobile, the situation was reviewed and the escort reduced to one
officer. In these circumstances, no restraints are used but the officer
has restraints available if required for emergencies. The man had to
have an escort of at least one officer, as it is not possible to grant a
temporary release to a life sentence prisoner in Category C conditions
such as Shepton Mallet. The only other way for the man to have the
escort removed was for him to be granted compassionate release
which had been applied for on two occasions.”
64. I am grateful to the Governor for supplying this response to the questions
posed by my investigator. Here too I feel that decisions were very risk-averse.
It seems extremely unlikely that the man had the inclination or desire to escape
from custody given his advanced illness. However, I also understand that
decisions that involve protecting the public are a matter of fine judgement.
What is critical is that the prison ensures a balance between public protection
and the compassionate management of seriously ill or dying prisoners. I am
satisfied that in this case the level of security was not unreasonable.
65. I understand that the close proximity of staff, the man, and his family, in a small
room might have been embarrassing for all concerned. However, it would not
have been right for such a consideration to have affected the risk assessment
and the level of escort thus determined.
Transfer to Bristol
66. The man’s sister had hoped that in the later stages of her brother’s illness, he
could be moved to a hospice in the Bristol area, and she had expressed these
wishes the prison. She was told that the journey would be too arduous for him.
However, she felt that the prison had been reluctant to sanction this move due
to financial constraints and asked my investigator to provide clarity on this
decision. My investigator asked the Governor about this and was provided with
the following response:
“I was not aware of a request by the man’s sister to have her brother
transferred to a hospice/hospital closer to her home. I am sure that if
20
the request had been made we would have tried to arrange it with the
PCT. I would not have allowed the issue of cost to come into it. If the
PCT could have arranged it I would have ensured that from a Prison
Service point of view it was carried out as required.”
67. Following the issue of the draft report, the man’s sister said that her concerns
about the costs being an issue came about as a result of two conversations she
had with the Head of Healthcare the month before her brother died. She said
that the Healthcare Manager had told her the prison might not support a
transfer to Bristol for the man due to financial implications of providing escort
and bedwatch cover. However, the man’s sister also said that during the
second conversation, The Healthcare Manager raised concerns regarding the
impact the journey to Bristol would have on her brother, and she said that she
did have sympathy with this view.
68. My investigator found that, as part of his palliative care plan, prison staff had
consulted the man regularly about his preferred place to be cared for and
spend his last days, and his responses had been recorded. The man had said
that he wanted to go to his sister’s home but preferred to die in a hospice,
although he did not express a preference as to where this should be. The
decision to move the man to Shepton Mallet Community Hospital for his end of
life care was made with his full involvement in all decisions.
Care at Shepton Mallet
69. During the investigation, the community ethos at Shepton Mallet was evident in
all areas of the prison environment including healthcare. It is clear from the
medical notes that staff from all areas, as well as prisoners, had been involved
in making the man’s illness more manageable and making him comfortable.
The compassion shown by all those who dealt with the man is to be
commended. For example, staff called in to see the man in hospital on their
way to and from shifts. The prison also arranged for discipline staff who were
looking after the man on a daily basis to have training in caring for him and
support. This highlights the excellent multi-disciplinary approach taken by
Shepton Mallet in dealing with a dying prisoner. I am sure it was a comfort for
the man knowing that he had that level of support. It also ensured that he
remained in an environment where he knew people for as long as was possible.
70. The Governor and staff should be proud of the professionalism and sensitivity
they displayed. I would be grateful if the Governor shared that view with his
staff.
21
Clinical review
71. A number of matters have been highlighted by the clinical reviewer most of
which I reproduce below:
”We shall never know if the lesion that was cauterised on the man’s leg
13 months before he died was the source of the malignant melanoma
that killed him. Experts may disagree with me but my belief is that the
disease must have spread long before the cautery for it to cause
visible, palpable lumps three weeks later. The prison doctor did not
know that it was a melanoma at that stage and her approach seems to
have been the one I would have followed and she is to be commended
for
a. ordering an ultrasound at an early stage
b. arranging an urgent appointment rather than the repeat
ultrasound that was recommended.
“From what I have read and heard the man’s quality of medical care
seems to have been good. However, it worries me that having been
referred by his GP as potentially having a cancerous problem in early
December that it was not until late May that he actually received any
treatment for his problem.
“Specifically the areas of delay seem to have been:
(cid:127) The two-week rule was not adhered to; being referred on 3
December meant he should have been seen by 17th, not 21st
December.
(cid:127) Four weeks between consultation and the receipt of the scan
report seems overly long in the circumstances, the ‘Festive
Season’ not withstanding.
(cid:127) And a further three weeks before a decision that a biopsy was
needed is surprising.
(cid:127) And a further three weeks wait for an ‘urgent’ biopsy does not fit
with my understanding of the word. This was because the
man’s blood pressure, a long-standing problem which he had
often chosen to ignore, was moderately raised. But it feels as
though no one thought to ask the anaesthetist if they would
proceed despite the raised blood pressure but blindly followed
the guideline that blood pressure should be controlled before
surgery. Guidelines are just that, not inviolable laws.
(cid:127) I do not know if a two-week delay between biopsy and the result
being available is reasonable but it seems a long time to me.
The result of the first biopsy was reported much sooner
(cid:127) More than five weeks delay before the surgeon’s referral to the
plastic surgeons was acted on seems very long
(cid:127) Why there was a further two-week delay before he was referred
to the oncologists is hard to understand when a perfectly good
tissue diagnosis was available in March. I cannot see why there
22
was a need to wait for confirmation from the plastic surgeons’
pathologists.
“Fortunately, the oncologists responded with commendable speed,
seeing the man within three days of referral.
“Despite the above delays, I do not believe it made any difference to
the fact that the man died when he did. Melanoma, when it spreads,
as it had a year before his death, is a dreadful disease that often fails
to respond to any therapy. But to know that it would not respond
meant it had to be tried and I would be happier if he had been afforded
treatment sooner. Once he came to the attention of the oncologists the
man’s care seems to have been good.
“As I have said, Malignant Melanoma is an unpleasant cancer whose
symptoms are difficult to control. Sadly this seems to have been the
case but the doctors and nurses at the prison healthcare centre,
together with their custodial colleagues, seem to have done all they
could to alleviate his suffering within the confines of a prison cell.
They
(cid:127) sought advice from the hospice
(cid:127) negotiated with the oncologists
(cid:127) tried to secure his release from prison on compassionate
grounds
(cid:127) discussed his wishes with him frequently
(cid:127) arranged his transfer to hospital when they could no longer care
for him in prison and arranged a host of amenities to make his
life more comfortable.
“But it must have been challenging to provide palliative care in prison
with the restrictions on the use, for example, of syringe drivers and
inadequate space for a hospital bed and ripple mattress, all of which
would be seen as a standard part of palliative care in the community.”
72. The clinical reviewer makes the following recommendation which I endorse:
The PCT should ensure that Bath Hospitals are adhering to the ‘Two
Week’ rule of seeing patients suspected of having malignant disease
within a fortnight.
73. The clinical reviewer does not believe that the delays mentioned in his review
made any difference to the progress of the man’s disease. However, he
considers that if the man had not had to live with this uncertainty it would have
been better for his emotional state. In his review, the clinical reviewer also
comments that no one person appeared to be responsible for ensuring that the
man’s problems were addressed with appropriate haste. Had there been such
an individual, some of the delays might have been reduced. I acknowledge the
clinical reviewer’s comments but consider that, on the evidence available, the
team at Shepton Mallet did everything in their power to facilitate speedy
intervention at every stage following the man’s diagnosis.
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Conclusion
74. The man’s death had a considerable affect on both prisoners and staff in the
small community of HMP Shepton Mallett. The efforts made by healthcare staff
to engage with a range of people in an attempt to make the man’s illness more
manageable is commendable. It is unfortunate that compassionate release
could not have been effected sooner, but I consider that prison staff did all they
could to chase this matter up. The man’s sister also acknowledged the support
and help she had received following her brother’s death. She said that she was
able to draw some comfort from the fact that her brother had been well liked by
both staff and prisoners.
24
RECOMMENDATION
1. The PCT should ensure that Bath Hospitals are adhering to the ‘Two Week’
rule of seeing patients suspected of having malignant disease within a fortnight.
25