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Early release rules for prisoners at end of life may be “discriminatory,” say doctors

BMJ 2019; 365 doi: https://doi.org/10.1136/bmj.l4140 (Published 12 June 2019) Cite this as: BMJ 2019;365:l4140

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Early release rules for prisoners at end of life need reform

  1. Gareth Iacobucci
  1. The BMJ

Doctors have called for changes to the rules governing when terminally ill prisoners can be released early on compassionate grounds, amid concern that the current approach is discriminatory.

Data obtained from the Ministry of Justice, shared with The BMJ, indicate that prisoners in England and Wales at the end of life are more likely to be granted early release on compassionate grounds if they have cancer than if they have other conditions, say clinical researchers who examined the data.

Under current legislation the secretary of state for justice can grant early release where there is a risk of harm to the prisoner from ongoing imprisonment, potential benefit through release, a low risk of recidivism, and adequate arrangements for safe care in the community. But, crucially, the prisoner’s death must be expected “very soon,” and HM Prisons and Probation Service considers this to be within three months.1

Jim Burtonwood, a palliative care specialist, GP, and MSc student at Cardiff University, who led the research, said the current rules meant that timescales often became too tight for a successful application for early release if an acknowledgment of terminal decline was delayed or there was prognostic uncertainty.

He told The BMJ, “The rules as they stand favour those conditions like cancer with either clear prognoses or more predictable trajectories. We saw that prisoner patients with chronic obstructive pulmonary disease, dementia, or heart failure were the ones that tended to be rejected, usually on the basis that their prognosis wasn’t clear enough for people to make confident judgements about ERCG [early release on compassionate grounds].”

Official figures show that 184 prisoners died in prison from natural causes in 2017, double the number a decade ago,2 a trend largely attributable to an ageing prison population.

As part of their study looking at the challenges in providing palliative care in prisons in England and Wales, the researchers sent freedom of information requests to the Ministry of Justice. They asked how many applications for early release between 2013 and 2017 succeeded and the underlying diagnoses.

The data show that over the five years 48 applications succeeded. The researchers were not able to obtain the total number of applications, but in the same period there were 845 recorded deaths from natural causes in prison.

In 2017 all six prisoners whose applications succeeded had some form of cancer. This was despite the fact that 39% of all expected deaths from natural causes in English and Welsh prisons at that time were from causes other than cancer.

Burtonwood said that the current legislation could be deemed to be discriminatory under the 2010 Equality Act and should be made more flexible.

He said, “In order to ensure parity across the spectrum of diseases, extending the “allowed” expected prognosis or perhaps recognising the degree of uncertainty that comes with some of the non-cancer conditions is going to be vital to ensure that the current rules don’t lead to prejudice against patients with these conditions.”

It should be taken into account that most prisoners at the end of life who don’t have cancer (such as those with COPD or dementia) are under the care of a prison GP rather than a specialist, Burtonwood said, which could make a swift and definitive prognosis difficult.

He also noted that prison GPs may feel under pressure when making a prognosis because of the potential adverse publicity that could ensue if a patient lived longer than expected.

“Some of the patients that we’re talking about may have received a lot of press coverage at the time of sentencing. So there will be a feeling that this is a high stakes decision about prognosis.”

Mary Turner, reader in health services research at the University of Huddersfield, who has published previous research on palliative care in English prisons, concurred with this point, citing the cases of the Lockerbie bomber Abdelbaset al-Megrahi and the Great Train Robber Ronnie Biggs.

International comparisons

Turner told The BMJ, “You could argue that we [in the UK] tend to be a bit risk averse. A few very high profile cases in the past have caused huge amounts of controversy.

“It’s too simplistic to say the prison service or the government is at fault, but this is a very complex area that needs properly looking at. I think we’ve got a lot of work still to do, and I think we can learn a lot from international comparisons.”

Turner is leading an international taskforce on behalf of the European Association for Palliative Care that is examining trends in palliative care in prisons across Europe, which she says may yield lessons for the UK.

“In the UK the numbers of people actually released are very low, whereas if you look at a country like France quite a high proportion of their older prisoners are allowed out, sometimes on a sort of temporary relief, if they have health problems. Even if they are sent to a secure hospital they’re in a much more suitable environment.”

In contrast, Turner said that older prisoners in the UK with palliative care needs were often being cared for in environments that are “completely unsuitable” for their needs. She referred to her own research, which found that 50% of prisoners in the sample were taking five or more medications.

Turner said that though some UK prisons had created separate units for older prisoners so as to better meet their needs or had hosted palliative care suites for prisoners at the end of life, there was variation in provision across the country, often because of resource and funding constraints.

“There are pockets of really good work,” she said. “But the problem is that it’s not universal. It comes back to resources at the end of the day, because prisons where they don’t have the numbers of healthcare staff are firefighting and don’t have the resources and the luxury of doing those detailed assessments and pick up those who might have end of life care needs.

“There will be people in prison with heart failure or dementia, and they’re not necessarily picked up.”

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