The Nation: Lisa Owen interviews Judge Peter Boshier
On The Nation: Lisa Owen interviews Judge Peter
Boshier Judge
Boshier says he’s already started the process with talks
with Government, and will ask for more funding to do the
inspections. Corrections has not built a separate unit for
young prisoners, despite a call from the previous chief
ombudsman. Judge Peter Boshier says having a separate unit
would be best practice. He also says history won’t judge
us well for the use of tie down beds for prisoners who are
mentally ill, and the end doesn’t justify the
means.
Headlines:
The chief
ombudsman Judge Peter Boshier says he wants to lead
inspections into privately run secure dementia units.
Currently only publicly run units are inspected.
Lisa
Owen: The chief ombudsman says the use of restraints in some
of our prisons goes against the UN convention on torture. In
a recent report Judge Peter Boshier called the treatment of
one prisoner cruel and degrading after he was secured in a
tie-down bed from 4pm to 8.30am for 37 nights in a row. And
while the incident was perhaps the worst example, it
wasn’t the only one. Judge Peter Boshier joins me now.
Good morning.
Peter
Boshier: Good morning.
Are our prisons
treating prisoners in cruel and inhumane ways simply because
they don’t have the resources to do
better?
I think that’s
very much at the heart of it. The particular prisoner
you’re talking about was uniformly restrained at a time
when there was a change of shift. There were other times
when there was good resourcing when he didn’t need to be
tied down. So you’ve got to say that resourcing was a big
issue.
So when you say change of shift, when
they went to fewer staff
on?
Correct.
Because
Corrections Department says in its response that it denied
resources was an
issue.
Well, at the heart
of the issue for me is you’ve got a prisoner — one of
many, by the way, which is the big issue here — who have
high mental health needs. How do you look after those
people? There are a number of ways. And what my inspectors
found was that there were times when they could be
therapeutically treated, overseen, and they were. There are
other times when they simply weren’t, and this particular
one, tied down and restrained, because it was management. We
found that latter was just unacceptable.
Do
you think that that prisoner, Prisoner A, should be in a
prison at all in that state of
mind?
Well, the issue for
me is this — it’s treatment and getting that person
forward. I don’t mind whether it’s done in prison and
there is an appropriate psychiatric circle around that
prison or it’s done in a forensic unit. I don’t mind.
What I do mind, from my overseeing point of view, which is
my jurisdiction, is that you can’t have someone in prison
with high mental health needs and have no appropriate way of
treating that prisoner.
Well, because here’s
the thing. The government, and you’ll be well aware of
this, is spending a lot of money on building more space in
prison. The prison population has exploded, basically. But
should there be a greater focus on building facilities,
whether they’re within the prison or outside the prison,
that can deal with prisoners who have mental health
issues?
Yes. Look, I think
the issue for New Zealand is this, and this is why I’ve
taken a big interest in it and will continue to do so. With
a big prison population and many prisoners who have high
mental health needs, sooner or later they’ll come out.
There’s a risk there to the community that, I think, is
regrettable. So in my, what I call, OPCAT role, and that
jargon stands for the protocol on crimes of torture that
I’m designated by Parliament to oversee, I’m trying to
get those people in a better space than simply
containment.
So that better space will cost
money, so you’re suggesting we need to spend to solve this
problem?
Yes, I am, and
this is a part of our investment that I would hope the
country would see as becoming a major
issue.
So why isn’t it happening? Is it time
that Corrections just stood up and said, ‘Look, we are
actually not coping with these mentally ill prisoners’? Is
that the problem?
Well, I
can’t tell you where and the decisions that are made in
relation to money. What I can tell you is what I’m seeing,
and what I’m seeing is a minimalisation of care so that
prisoners are left in sparse, minimal rooms, sometimes tied
down to beds, sometimes with hand restraints all day. It’s
the consequence which I would’ve thought as a progressive,
civilised country we’d want to do something
about.
So do you think we should get rid of
restraint beds from our prison system
altogether?
Let me answer
that in this way. I think history won’t judge us well in
the future when we look back and see how we’ve used these.
I don’t think it’s very forward
thinking.
Because, in essence, Corrections
came back after that report and said needs
must.
The issue there is I
don’t think that the means justify the ends. Look, we live
in a humane, dignified country where we have standards. Now,
I understand Corrections’ point of view, which was, ‘If
we hadn’t restrained him, he would’ve injured and killed
himself.’ So how do you cope with that? There are many in
that position, but I think the answer is you do it in a
proper, health-based, therapeutic model, not one that simply
contains.
Well, talking about attempts on
lives and suicide, prisoners are four times more likely than
the general population to attempt suicide, and I think since
2007, 53 inmates have committed suicide. Is this is
something that your office is looking at
investigating?
We do
investigate, and we have a protocol with Corrections. So one
of our big portfolio areas, as I think you know, is
Corrections. And one thing that we are told about is
whenever there is an incident which either involves a
suicide or something which is very high risk. Now, by the
way, one of my reasons for wanting to do this work properly
is that we weren’t resourced well at a time when Serco
occurred, and, frankly, I’m horrified, and I use that word
guardedly, that Serco occurred under our noses. And one of
my reasons for wanting to do this work properly is I hope in
a civilised country, one where we have the number one
transparency rating in the world with Denmark, I hope we
never fall again in our space because of incidents like what
happened with Serco.
So you accept that…
well, that was a failure on the part of the Office of the
Ombudsman not to have picked that
up?
Well, when I say
failing, we’re at this point. In the past, we had one
inspector under our protocol to do this. Then we went to
four, and we’ve now just been funded by Parliament to go
to eight. So you’ll see the future shines pretty brightly
for this part of our work.
One of the concerns
that you’ve identified more than once is this complete
lack of activities, in some cases rehabilitation programmes
for prisoners, so why are we so surprised when people go on
to reoffend again?
Well,
look, I… As far as my role is concerned, I’ve got to be
careful in setting the boundaries, and that is I’m not
into the business of commentating or reforming. What I do
want to say is that from the point of view of those
prisoners being treated in a humane, dignified fashion, that
doesn’t include doing nothing. I want to see them headed
in a direction where it’s a better existence. It seems to
me to—
So what would be the better
existence, do you think? Because you’ve identified, like I
say, in a number of reports that there are hours spent
idle.
I find that almost
bizarre that we don’t try to help and try to change. I
would have thought that you don’t give up on someone who
goes to prison by just containing. So my theme with you is
let’s try and see if we can move this person from the
position they’re in to a better position. I would hope
that’s what we aspire to.
So, young
prisoners has been an issue in the past for your office as
well. These are, and I want to call them kids, 17-year-olds,
18-year-olds who are in mainstream adult prisons. I mean,
under-17s have to be kept away from the general population.
But your office has previously said that Mt Eden Prison, our
big remand prison, should have a separate unit for these
young prisoners. That hasn’t happened. What do you think
the consequences of not making that
change?
Well, we’ve
always accepted that youth need to be carefully looked
after, and there are all sorts of reasons for that that you
know about and I know about, and it’s to do with being
schooled into worse ways, it’s the vulnerability, it is
the fact that they are developing. So I would hope that we
have a philosophy embedded that you separate youth from
hardened prisoners. It’s not good policy, and it’s not
good in terms of our convention requirements to have them
all mixed up.
But in saying that, your office
has asked for a separate unit because— You also noted that
lockdowns are long, so some of these teenagers are out—
well, in 2015, they were out for only one or two hours a day
because of trying to keep them from the general population.
So does Corrections Department need to build this specific
unit as previously asked
for?
I think better
practice involves the separate unit. Look, there are many,
many respects in which we have done that, and in the youth
justice and the care and protection space, that’s what
happens. There are stand-alone, separate residences. It’s
good practice, and I think it’s the way to
go.
I suppose that raises the question — do
you need powers to compel, then? Because sometimes they just
don’t want to do what you want them to
do.
This is a big question,
and if you’re talking about the ombudsman and the powers
of compulsion, those issues will always be talked about as
to whether we should have more teeth. At the moment, I’m
choosing to go down the track of talking more and at times
exposing through publication and of trying to get there by
being clearer, firmer and more robust on what I’m saying.
I think that’s my job.
Okay, well, in line
with that, you currently inspect facilities for people with
dementia that are public facilities. What about private
secure dementia units? What are your thoughts on those?
Should you be allowed in to have a look at those
too?
So, the starting point
is the convention, which means that anyone who’s detained
— anyone who’s detained — must be looked after in this
humane, proper fashion. So you can be detained in a private
facility, and my worry is that we don’t presently have
coverage in relation to those units. Why am I concerned?
Well, all we see anecdotally, and we all know this, are the
occasional rising to the top, through media usually, of a
position in which an older person with dementia has been
maltreated. So I think it is better for our international
reputation if no one who’s detained is not overseen and
not looked after in a way in which we are ensuring quality.
That is my starting point.
So you talk about
the odd media case where it comes to attention. Do you have
concerns that there are more widespread issues with the care
of people in dementia
units?
Well, I don’t see
why there shouldn’t be, because the answer to that
question is we do see in the facilities that we inspect —
that is, the state-funded dementia units — use of
restraints without proper documentation. So getting back to
the prison thing that you’ve been talking to me about,
it’s rather comfortable and easy just to restrain someone
who’s proving difficult by tying them to a chair for a
long period of time and then going away and getting other
work done. So there are examples of that in state-funded
dementia units. I don’t see why it wouldn’t occur in
private ones as well.
How are you going to get
in there, though? Do you need a law
change?
I don’t think we
do. I think, to be fair, we’ve got to ease our way through
on policy with this, because this is a space where we
haven’t routinely been — that is, the private space. We
don’t need a law change.
Why not? Why
don’t you think you need a law
change?
Because a lot— we
have jurisdiction where the state is responsible for people
either through a direct means of an order or through
funding. A lot of people are in private dementia facilities
who are on benefits, and the state, in fact, funds that
care.
And you think that, therefore, would
give you the right to go and have a look? Because of the
connection to the state —
funding?
I’m saying that
I don’t think a law change is required, but I’m at the
point where I’m treading carefully. This is new. This is
quite robust and bold. I’m not about to pounce. I want to
do this in a very careful proper fashion. But I’m
deliberately signalling, as I did to Parliament earlier this
year, we need to watch this space, and we need to be
conscious that it’s not a space that’s being looked
after at the moment.
So is your signal being
picked up on? Is there a political will? What kind of
feedback are you getting?
I
don’t know whether there’s a political will. What I do
know — the avenues that we work through, that is Ministry
of Justice, that’s what we’re doing, so we’re saying,
‘This is where we would like to go, and we would like you
to work with us on developing acceptable policy and
advice.’ That’s the stage we’re at.
So
those facilities, they get audited and certified in other
ways. How do you think they’re going to react if over
time, even if it’s not all of a sudden, you’re allowed
to have unannounced visits? What do you think that sectors
going to think of this as an
idea?
I would hope they
would welcome it. I would hope that if an institution
that’s operating really well can demonstrate that through
us visiting, showing that they’ve got good standards,
they’d feel pretty good about it. Equally, if there’s
one that routinely failing, that’s the
consequence.
Judge, you’re a very
goal-orientated person. You’ve put time frames on other
goals within the office. When would you like to get this
sorted by?
Well, this is
what we’ve done this year, and this is very, very hot off
the press, because our budget debate occurred just this
week. So Parliament has funded us in this inspection of
prison detention space by doubling our resource. I’m now
looking at going to Parliament at the beginning of next year
— that is, offices of Parliament select committee that I
answer to — to begin a discussion on the funding of this
area. So the answer to your question — about a year
away.
All right. Thanks so much for joining
us. It’s good to talk to you
again.
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