Remarks for Howard Sapers
Correctional Investigator of Canada

Chronic Disease and Premature Deaths in
Canadian Correctional Facilities


Health Beyond Bars: Towards Healthy Prisons in Canada
Hosted by the Collaborating Centre for Prison Health and Education

February 21, 2014 @ 9:15 am
University of British Columbia
Vancouver, British Columbia

 

Introductory Comments

Let me begin by acknowledging the traditional stewards of this territory and by thanking Elder Mary for such a warm welcome.

Thank you for the invitation to address you this morning. Congratulations to the Collaborating Centre for Prison Health and Education for organizing this conference.

It is a pleasure to be here in this inspiring venue and to participate in a dialogue on healthy prisons.

My remarks today are focused on the intersection between prison healthcare service delivery and the Correctional Service of Canada’s (CSC) process for investigating natural cause deaths in custody. I will review the challenges that an aging and increasingly complex and compromised prison population means for CSC’s obligation to preserve life in custody.  I will reflect upon the relationship between chronic disease, quality of care and premature death in prison.

To provide context to my remarks, I will review recent research reports and statistics on deaths in custody including a summary of the leading causes of mortality among the federal inmate population. To bring home my concerns, I will report on the findings from a newly released investigation by my Office into CSC’s Mortality Review Process and the capacity of the Correctional Service to provide quality and adequate end of life care in a penitentiary setting.

I will conclude with some practical recommendations about how the Service could improve its approach to preservation of life and thereby mitigate the risk of inmates dying prematurely or from preventable causes. 

Let me first take a few moments to remind you of my Office’s mandate. The Office of the Correctional Investigator functions as an ombudsman for federally sentenced offenders, those serving sentences of two years or more.

As Correctional Investigator, I am authorized under Part III of the Corrections and Conditional Release Act to conduct investigations into problems of offenders related to decisions, recommendations, acts and omissions of the Correctional Service of Canada (CSC).

Decisions to commence, or terminate, as well as the methods used to conduct an investigation, are at my discretion.

I am independent of the Minister of Public Safety and the Correctional Service. My staff of 35 has complete access to all facilities, records and staff of the CSC. I report to Parliament on the individual and systemic concerns that offenders bring to my Office, and the ability of the CSC to implement solutions.

The Office is an oversight, not an advocacy body; my staff does not take sides when investigating complaints against the Correctional Service. We look for compliance, fairness and legality. We view corrections through a human rights lens.

Prevention of deaths in custody is one of my Office’s six thematic priorities.  The Office reviews all incidents and CSC investigations involving inmate deaths, regardless of their cause. 

As a category, health care remains the single most frequent area of offender complaint to my Office. This category of complaint has consistently topped the list of concerns brought forward by inmates. When unpackaged a bit further, individual health care complaints typically break down as concerns involving access to health care services, quality of health care provided and, decisions regarding medication use, including discontinuation or alternatives.

Health care can often be an especially complex area of offender complaint. Unlike the rest of us, offenders do not choose their health care provider and they cannot shop around for service; they must accept what they get when they can get it. Health care involves decisions about autonomy, consent and control; these often rub up against other competing priorities, such as security, population movement, institutional routines, availability of outside providers and clinics.

When talking about prison health care, it is important to recall that federally housed offenders are not covered by Health Canada or provincial health care systems.

The Correctional Service of Canada must provide for essential physical and mental health services. Under the Corrections and Conditional Release Act, it must ensure reasonable access to health care in conformity with professionally accepted standards of practice. The Service is further obligated to consider an offender's state of health and health care needs in decisions prior to penitentiary placement, transfer, segregation, discipline and community release and supervision. These are important legal obligations that cannot be ignored no matter how challenging they can be in practice.

It has been universally established that correctional facilities house a number of compromised and vulnerable individuals who have lived on the margins of society. Offender populations are disproportionately drawn from social and economic backgrounds characterized by deprivation and disadvantage. We also know that deficits in literacy, education, housing, employment, social support networks, income and social status are all associated with increased morbidity and mortality.   Each year I report on how the CSC responds to these challenges.  My most recent Annual Report was tabled in Parliament on November 26, 2013.

From a social determinants of health perspective, consider the profile of today’s inmate population: 

  • 23% of the total federal inmate population is Aboriginal, despite comprising just 4% of the general Canadian population. One in three federally sentenced women is of Aboriginal ancestry.
  • 9% of inmates are Black Canadians, almost triple their representation rates in general society.
  • The average level of educational attainment upon admission to a federal penitentiary is Grade 8. 
  • Before prison, most offenders are chronically under employed or unemployed.
  • Close to 70% of federally sentenced women report histories of sexual abuse and 86% have been physically abused at some point in their life. 
  • Addiction or substance abuse plagues an overwhelming majority of offenders. Two-thirds were intoxicated when they committed their index offence. 
  • The demographics of the offender population are changing. In the ten year period between March 2003 and March 2013, the incarcerated population grew by close to 2,100 inmates, representing an overall increase of 16.5%. During this period, the Aboriginal incarcerated population increased by 46.4%, with Aboriginal women inmates growing by over 80% in the last 10 years. Visible minority groups increased by almost 75%. Meantime, Caucasian inmates declined by 3% over this period. In other words, the overwhelming majority of growth in the correctional system is driven by increases in Aboriginal, women and visible minority offenders.
  • Finally, and perhaps most significantly, in the context of chronic disease management and prison morbidity and mortality rates, one in five federal inmates is aged 50 or older.

I offer these demographic trends and statistics in order to establish a context for understanding my concerns about natural cause death in federal corrections.  As things currently stand, an increasing percentage of offenders will not only grow old in prison, but they will eventually succumb to chronic or acute diseases associated with the aging process.   And, as I have said, it is CSC’s legal responsibility to ensure an inmate’s health and safety while they are in custody.

It is generally accepted that the aging process is accelerated by as much as ten years or more in a custodial setting. Research suggests that long periods of incarceration and institutionalization are hard on both mental and physical health.  The stress of life behind bars, coupled with years of difficult and unhealthy living before arriving in prison, can add years to the chronological age of incarcerated individuals.  In corrections a number of jurisdictions consider 50 years of age to be the benchmark for an older or elderly offender.

Other stresses – separation from family and friends, the prospect of growing old in confinement and the threat of victimization – account for the fact that an inmate’s physiological age often exceeds his or her chronological age.

The cumulative impact of numerous sentencing and parole reforms in recent years means that an increasing number of offenders are serving longer sentences, and more of that sentence is being served behind bars before first release. Consistent with a greying population, more offenders are being sentenced later in life. For example, the number of offenders between the ages of 40 and 49 at admission is increasing; in 2011-12, this age cohort accounted for nearly 20% of all new admissions to federal custody.   

Today, 23% of the total inmate population is incarcerated with a life or indeterminate sentence. Many life or indeterminate sentenced offenders will eventually become an 'older’ offender before (or even if) they are considered eligible to apply for parole. We should recall that the average time served behind bars for a 1st Degree Murder conviction in Canada before parole release is more than 28 years, one of the longest periods of time served in the industrialized world, even exceeding that of the United States.  

Since the formal commutation of the death penalty to a sentence of life in 1976, there has been a gradual, but perceptible growth in long serving offenders in Canadian prisons.

Over time, these trends pick up pace and their cumulative effects are now evident in an aging inmate population. More older offenders are living with chronic or acute illnesses associated with the natural aging process – cancer, emphysema, diabetes, cardiovascular disease, arthritis, hypertension, dementia. Some require very specialized (and expensive) care, including palliation, before their sentence expires. On this last point, while still a possibility, it is now exceedingly rare for a terminally ill inmate to gain release from prison on exceptional, compassionate or mercy grounds.

That said, obtaining a baseline picture of the overall health conditions of the inmate population is not easy. It is complicated by the fact that the system does not currently have electronic medical records or modern and accessible records storage.  It is possible to manually extract information from existing individual case records and extrapolate trends to make some informed estimates on the prevalence of health conditions among the inmate population. I should mention that prevalence rates for communicable diseases, such as Hepatitis, Tuberculosis as well as some sexually transmitted infections, are much more reliable as these are based on documented test results at admission and ongoing regular screening of the population over time.

With these caveats in mind, let’s look at a snapshot of physical and mental health in Canadian prisons today:

  • In 2011-12, based on a combination of self-reported and documented test results, the prevalence infection rate among the inmate population for Hepatitis C was 30%, 15% for Latent Tuberculosis and 4.6% for HIV.
  • A 2009 manual review of health care records estimated that 6.9% of the inmate population was living with diabetes, close to 20% had a cardiovascular condition, 15% a respiratory condition and 6.5% an urological condition.
  • In 2011-2012, 852 inmates (or about 6% of the incarcerated population) were enrolled in Opiate Substitute Therapy (OST), more commonly known as Methadone Maintenance Treatment, or MMT. Surprisingly, while demand for MMT is up, the program administration for this treatment has just been cut by 10%.
  • Based on 2008 data, 30% of newly admitted federally sentenced women had previously been hospitalized for psychiatric reasons. An August 2013 snapshot indicates that 63% of federally incarcerated women were prescribed some sort of psychotropic medication.  
  • In 2011-12, the CSC reported to have delivered at least one institutional mental health service to 48.3% of the total inmate population.  
  • Two-thirds of newly admitted offenders screened for potential mental health problems in 2011-12 were flagged for a follow-up intervention.

These data paint a picture of significant mental and physical health distress, and raise the following questions:

  • What is the relationship between compromised inmate health status and mortality rates in federal corrections?
  • Are ‘natural’ cause death rates for federal inmates within ‘expected’ or ‘normal’ mortality ranges?
  • What specific preventive or protective factors are in place to mitigate the incidence of age associated chronic disease in federal corrections?  
  • What specific risk factors (incidence and spread of infectious disease, diet, exercise, unhealthy lifestyles) does long-term institutionalization entail for incarcerated individuals?
  • What is CSC’s duty of care to mitigate the risks of preventable or premature inmate death?
  • What, if any, is the relationship between elevated risk, high dissatisfaction with health services and the in-custody mortality rate?

These questions led my Office to investigate more closely how the CSC reviews natural cause fatalities, including the quality of care provided in life-ending events or circumstances.

In the period between 2002 and 2013, there were 536 deaths recorded in federal correctional facilities.  Over 70% of all in-custody deaths over this time were attributed to natural causes.  Natural cause fatalities far exceed any other cause of death.

In 2011-12, 53 deaths occurred in CSC institutions – 62% were from natural causes, 16% from suicide, 14% from unknown causes, 6% from murder and 2% from poisoning by overdose. 

On average, about 35 federal inmates die each year from natural causes.  Approximately 50 others succumb annually to natural causes while under some form of community supervision.  

It is difficult to ascertain the specific mortality rate for offenders under federal sentence, but these numbers do raise a red flag given an incarcerated population of approximately 15,300 and a community supervision population of about 8,500. 

A statistical report produced by CSC in January 2013 summarized 50 individual mortality reviews and found that 35 of those deaths were “expected” (individuals had a documented terminal diagnosis) while 15 were “unexpected” (individuals suffered sudden cardiac arrest or complications from medical procedures).  Of the 35 expected deaths, 31 were confirmed to have received palliative care.  30 died in a CSC facility and 5 in a community hospital.      

Similar to national mortality rates, cancer was the leading cause of natural death among the inmate population.  20% succumbed to cardiovascular disease which is also the second leading cause of death among Canadians.  The third leading cause of death among offenders was infection at 14% (compared to stroke for the Canadian population).  Influenza and pneumonia infection were the 8th leading cause of death for Canadians, while death by infection related to AIDS, Hepatitis, Sepsis ranks 3rd among inmates.

Prison deaths attributed to infection raise a specific concern related to conditions of confinement: crowding can contribute to the rapid spread of infectious disease such as hepatitis.  Liver disease remains a leading cause of death in the offender population.

The average age of offenders who die either in custody or under sentence in the community is far below the national life expectancy.  Of the 50 individual mortality reviews mentioned earlier, the average age at death was 60 years, much younger than the Canadian life expectancy of 78.3 years for males and 83 years for females.

This trend holds consistent for offenders who appear to die prematurely from natural causes in the community where the average age of death over a ten year period is 62.5 years.   

Under section 19 of the Corrections and Conditional Release Act, when an inmate dies or suffers serious bodily injury, CSC is required to “forthwith” investigate the matter and report to the Commissioner of Corrections.  Section 19 also provides that CSC shall give a copy of its report to my Office. 

Just to be clear, it is not the particular cause of death or serious bodily injury that leads to the duty to investigate, but rather the occurrence of the death or serious bodily injury itself that leads to this legal obligation.   

CSC has traditionally convened a Board of Investigation to investigate all in-custody deaths regardless of cause. Since 2005, cases involving death by natural cause(s) are investigated through a separate, more streamlined exercise referred to as the Mortality Review Process (or MRP for short).

The objective of the mortality review is to review the health care provided and report on the circumstances, precipitating factors and causes leading to death. The exercise primarily involves a review of the deceased’s medical records and is conducted by a registered nurse at CSC’s National Headquarters. The review typically focuses on healthcare and institutional records two years prior to death, although the reviewer may look at records as far back as is deemed necessary. 

My concerns about how mortality reviews are conducted go back a number of years. The Office has repeatedly raised concerns about the quality, thoroughness and adequacy of the mortality review process, which the CSC has yet to address:

  1. There is no requirement to include an external member in the composition of the Mortality Review Committee.
  2. None of the mortality reviews have been independently or expertly reviewed or validated.
  3. There is no requirement to interview staff or independently corroborate the clinical care and treatment provided.
  4. Mortality files reviewed by my Office often lacked critical documentation, including Closure Memos, Coroner Reports and Cause of Death Certificates.
  5. While compliance issues are sometimes identified, corrective measures are rarely noted and recommendations of any national significance are hardly ever issued.

Prompted by these concerns and after reviewing the first 100 reviews and noting the paucity of critical findings and recommendations, last year I initiated an in-depth investigation of CSC’s mortality review process. 

To facilitate this investigation, I retained the services of a senior medical practitioner who was asked to conduct an independent and expert review of the quality and adequacy of medical care provided in a sample of fifteen deceased offenders.

The fifteen cases that we asked the contracted doctor to review were not randomly selected. All of the deaths had raised some level of concern upon initial review. All of the deceased were male inmates, and all but one death was “anticipated” by CSC. The average age at death for the sample was 60.

The physician consultant reviewed the same medical charts, files and records that were part of CSC’s mortality review exercise. This was a compliance review focused on assessing the quality and thoroughness of CSC’s mortality review reports and process; it was not intended to “reinvestigate” matters of fact.

The MRP Investigation Report was released earlier this week and is available on the OCI website.  I have left copies of a backgrounder on the Report and the press release we issued on the information table outside this room.

In terms of what we found, the medical consultant’s review raises serious compliance issues concerning the quality and adequacy of health care provided: questionable diagnostic practices; incomplete medical documentation; quality and content of information sharing between health care providers and correctional staff and; delays and/or lack of appropriate follow-up on treatment recommendations.  These are serious findings, particularly considering that in all fifteen of the individual mortality reviews conducted by the CSC, the conclusion was the care provided to the deceased inmates was “congruent” with “applicable” health care standards and policy.

The investigation also found significant problems with respect to the mortality review process itself. For instance, the time between a fatality and the convening and completion of the mortality review often exceeds two years. This timeframe does not respect the legislative obligation for CSC to investigate an inmate fatality “forthwith.”

Just as troubling, the individual reviewer is not asked to establish, reconstruct, validate or otherwise probe the facts or circumstances that contributed to the fatality beyond recording cause of death as either “expected/anticipated” or “unexpected/sudden.”

Most mortality reviews simply conclude with a Closure Memo stating “no further action required.”  

Given these deficiencies, it is perhaps not surprising to find that the mortality review process has failed to generate findings, recommendations, lessons or corrective measures of any national significance. Even when compliances issues are noted, there is no way of determining whether the death was potentially preventable or premature. There is little in the way that the process is currently structured that advances knowledge, generates lessons learned or leads to sustained corrective action over time.

I have concluded that the mortality review process is an inadequate model for investigating deaths in federal penitentiaries. The exercise is not carried out in a timely or rigorous manner, and it fails to meet basic investigative standards such as independence, thoroughness and credibility.

These findings are consistent with a number of other deaths in custody reports and studies conducted by my Office since 2007.

We continue to review cases where the quality and timeliness of the medical emergency response was either inadequate or inappropriate.  We have documented these concerns, which speak to:

  • Excessive delays or outright failure  to perform life-saving measures
  • Failure to remove known fixed ligature suspension points, especially in high risk areas, including segregation and observation cells
  • Concerns about the quality and access to emergency medical care, especially at night and on weekends
  • Use of long term segregation to manage mentally disordered offenders, often contrary to their health care interests
  • Quality of patrols, counts and live body verification procedures
  • Information-sharing gaps amongst and between front-line and health care staff.

These are persistent and known risks that continue to impede efforts to reduce and prevent deaths in custody.

The International Committee of the Red Cross recently released a report entitled “Guidelines for Investigating Deaths in Custody.” The report outlines a number of standards and procedures for investigating and preventing deaths in custody based on international human rights law and best practice from around the world. 

The ICRC notes that:

When someone dies in custody, it is only fitting that an independent investigation be conducted – regardless of the presumed cause of death.  A prompt, impartial and effective investigation is essential for ascertaining the cause of death, for preventing similar incidents in the future and ensuring the security of other prisoners, for informing the next of kin and for reassuring the public of the authorities’ commitment to fulfilling their national and international obligations.

The document outlines four key criteria that should guide the investigation into a death in custody regardless of its cause:

  1. Be thorough – establish all the facts related to the death such as the cause, place and time, extent of involvement of those implicated in the death, as well as any pattern or practice that may have caused the death.
  2. Be undertaken at the authorities’ own volition and carried out as promptly as possible.
  3. The authorities in charge of the investigation must be independent and impartial – they must have no relationship, institutional or hierarchical, with persons or agencies whose conduct has to be investigated.
  4. The investigation should include some degree of public scrutiny – conclusions should be made public.  Next of kin should be involved in the process. 

The Guidelines also discuss the importance of interviewing witnesses, staff members who were in charge of the deceased, as well as other inmates who may have observed the circumstances of the death.  The medical staff of the institution should also be interviewed and questioned with respect to medication use and the mental and physical state of health before death.  It should also be established when a healthcare professional last had contact with the deceased. 

Clearly, CSC’s mortality review process falls short of many of these best practices and standards. A post-incident review of medical charts, with no requirement to interview staff or inmates at the facility where the death occurred, with no requirement to assess the factors and circumstances that may have led to the death, does not constitute an investigation.

As our review of the mortality review process confirms, the current exercise is often unable to comprehensively assess:

  • the appropriateness of the diagnosis and treatment regime
  • the extent of medical information shared with the patient
  • the capacity to provide informed consent at end of life
  • the quality of liaison with family members
  • the appropriateness and adequacy of palliative care plans
  • the statutory requirement to consider alternatives to incarceration for terminally ill/palliative offenders, and,
  • the adequacy, timeliness or appropriateness of the emergency response measures in the event of a sudden or unexpected critical medical incident.

These deficiencies would never be tolerated in our public health care system. They should not be tolerated in our prison system.  To do so is contrary to the duty of care owed to those under state control.

These gaps may explain why CSC still does not have a framework for assessing and mitigating risks associated with premature death. I am very concerned that, after a number of draft attempts, CSC has been unable to produce a national, publicly reviewable performance and accountability strategy focused on the known risks for reducing preventable or premature deaths in federal custody.   

Concluding Remarks

To move ahead and make progress on the identified areas of concern, I have suggested the following measures:

  • First, in my latest Annual Report, I called on the Minister of Public Safety to create an independentt national advisory forum drawn from experts, practitioners and stakeholder groups to review trends, share lessons learned and suggest research that could reduce the number and rate of in-custody deaths in Canada. 
  • There have been a number of Coroner’s Inquests, Medical Examiner reviews and reports that contain important lessons learned; however, these tend to have little sustained impact because, I believe, there is no national body to share, let alone enforce their findings or recommendations in a timely and responsive manner. A similar body has been active in the United Kingdom for several years and has made a significant contribution to the effort to reduce in-custody deaths.
  • Second, CSC should create a dedicated senior management position responsible for promoting and monitoring safe custody practices.
  • Thirdly, 24 hours per day, seven days per week healthcare coverage in all medium, maximum and multi-level facilities is essential. Correctional officers, while trained in basic life-saving procedures, are no substitute for health care professionals in a sudden and potentially life-ending incident.
  • Put an end to placing mentally disordered offenders and those at risk of suicide or serious self-injurious behaviour in long-term segregation. 

Finally and specifically in respect to strengthening the accountability and transparency of CSC’s mortality review process, the following actions are required:

  1. Sudden” or “unexpected” fatalities, regardless of preliminary cause(s), should be subject to a National Board of Investigation.
  2. All mortality reviews, regardless of cause of death, should be led by a physician.
  3. Mortality reports in their entirety should be shared, in a timely manner, with the designated family member(s) who request it.
  4. The mortality review exercise should be subject to a quality control audit chaired by an outside medical practitioner.

Preventing deaths in custody is challenging work, but a sentence to incarceration in Canada should not result in a shortened life expectancy. There is little “natural” about dying behind prison bars.  The fate of an incarcerated person rests with the authorities responsible for administering their sentence. 

Authorities must safeguard the life, dignity and physical integrity of those deprived of liberty.  This is in fact a primary responsibility of any modern and humane correctional system.  This is a responsibility that I know each and every one of you takes seriously.

Thank you for the work that you do.  I appreciate your commitment to quality prison health and your interest in the work of my Office.  I look forward to your questions.