SPARC Statement on Changes to Prison Rules

9 April 2020

SPARC have carefully read (and provided a plain language summary below of) the amendments to the Prison Rules in Scotland, being brought in in response to the coronavirus situation. Almost all of these rule changes relax requirements on Prison Governors to ensure that people in prison are provided with opportunities and resources to meet basic needs including nutritious food, clean socks and underwear, access to bathing or showers, family contact, reading material, and purposeful activity. The rules consistently water these down, so that Prison Governors are only required to do this where it is “safe and reasonably practicable” to do so, or are allowed to not fully meet these requirements for extended time periods. In a context whereby the provision of many of these items has become more challenging for prisons, the rules should exist precisely to ensure that they are still prioritised.

In justifying these changes, the policy note suggests that the amendments relate to services “which although important, are not critical to the security and health of SPS staff and prisoners”. Reviewing these rule changes, it is clear that in the context of coronavirus, care of people in prison is being reconceptualised purely in terms of protection from coronavirus and health is being reconceptualised only as bare physical survival. 

People in prison are already at increased risk of poor mental health and death by suicide. In this context, family contact, diversionary activities, and time out of cell clearly are critical to health. We also have considerable concerns that these changes to the Prison Rules will profoundly impact upon mental and physical wellbeing: the reduction of guaranteed access to washing facilities from every second day to twice per a week is a clear example here, as are provisions which increase the length of time the Scottish Ministers can allow prisons to fail meet the minimum standards for clean clothing, without being in breach of the Prison Rules. The rule changes also allow for suspension of exercise, recreation, access to books and personal items in cells, healthy and varied food – all the things that those of us under ‘lockdown’ outside of prison are being told are essential to survive this pandemic.

These changes to the Prison Rules were introduced without warning or consultation. The Policy Note accompanying the legislation acknowledges that this is unusual, and that ordinarily key SPS employees, the POA Trade Union, and other stakeholders such as Police Scotland and NHS providers would have been consulted. We are disappointed that this has not taken place, and that people in prisons, their families, Third Sector colleagues and academics are not seen as key stakeholders for consultation of this nature. Taken together with the failure to publish the Equality and Human Rights Impact Assessment, we are deeply concerned about the lack of transparency surrounding these changes. This has clear implications for human rights and the ability for these to be protected and defended. Prison Rule 7 requires that the Rules are “readily available for inspection by officers and prisoners in each accommodation block and in the prison library”, yet the new provisions are silent as to how people in custody will be informed of the new Rules. 

Relatedly, none of the rule changes seem to place additional requirements on prisons to provide information, connectivity and support for people in prison at this time. They don’t say anything about what the prisons can and should be doing for people in prison, just what they can (under certain circumstances) get away with not doing. One area where the rules could have been used to improve provisions for people in prison is around information. SPARC has recently raised concerns about a poverty of information for people in prison. NHS Scotland’s own information website emphasises that “During the pandemic, it’s important to have the right information. Getting news from unreliable sources can make you feel more upset and anxious, which is unhelpful when it comes to mental wellbeing.” Yet we know from people in prison that this is too often the case.

There have been no additions to the prison rules to bolster the rights of people in prison to reflect the current context. For example, an extension on the time frame for Scottish Ministers to investigate and respond to an appeal of a disciplinary procedure, is not accompanied by a corresponding extension for the prisoner to appeal the decision. Notably, there does not seem to have been any amendment to rule 82* which states that subject to certain specified provisions “every prisoner is required to work in prison”. Although this rule ceases to apply when work has been suspended by the Governor, there is no provision that allows for prisoners to refuse to work because of their own concerns about contracting the virus; and we know from media reports that prison staff are concerned about the lack of PPE in prison. While Prison Governors are being enabled to take decisions to safeguard people’s health, it is not obvious that people in prison are being supported to make their own decisions regarding the risk they are willing to tolerate. 

Reducing the prison population, and the current crowded conditions of prisons in Scotland, is the most effective means of reducing risk in prison and offers the best chance of protecting lives. The proposed rule changes make it absolutely clear that authorities do not feel prisons currently offer a safe environment. One of the few changes to these rules that addresses the root cause of prisons being an unsafe environment in a pandemic is an extension of home leave from seven to fourteen nights. This offers an immediate mechanism for doing this, alongside expanded use of Home Detention Curfew use and provisions for early release introduced in the Coronavirus Scotland Act. It is worth noting though that fourteen nights is still a highly limited time period in the current context and, unlike other rule changes, the option of applying for a further extension to this time period does not seem to have been left open.

On balance, it is difficult to conclude that the changes to the Rules do anything other than dilute the legal obligations upon the SPS which, until yesterday, it had been agreed following a long consultation process were the minimum standards required to protect the rights of those in custody. We recognise that the current circumstances are exceptional, and huge pressures are being placed on individual institutions, and the criminal justice system as a whole. Yet many of the issues the COVID-19 pandemic has brought to the fore, such as overcrowding, pressure on prison budgets, difficulties in providing healthcare and staff shortages are not new. Seeking to resolve the pressures on the system caused by this crisis by reducing the rights of people in prison is not only unjust and misguided, but sets a dangerous precedent as to what Scotland as a country views as an acceptable solution to a crisis.  

Plain English summary

[Please note: It is important for prisoners, their families and the public to have accessible information about how civil liberties of people in prison are being changed, and we offer this below. It does not constitute legal opinion as we are not lawyers.].

The accompanying policy note says that the amendments:

  • Are a ‘response to the exceptional pressures facing prisons during the current Coronavirus outbreak and the impact that staff shortages within prisons’ and ‘prison staff self-isolat[ing] to prevent the spread of the virus’
  • Overall their effect is to ‘generally provide Governors with flexibility in regards to compliance with timescales and the provision of those services’, that have been deemed ‘not critical to the security and health of SPS staff and prisoners’
  • The rule changes aim to ‘enable SPS staff to focus on key functions and to help protect the health and safety of staff and prisoners’
  • They are allowed ‘only [to] be in force for the duration of a Coronavirus outbreak’ [currently defined as lasting until 30 September 2020]

Section 1 states that these changes to the Prison Rules will come into force immediately. 

Section 2(2)(b) details how long these changes will be in force. They have immediate effect and are in place until 30 September 2020.

The remainder of Section 2 makes changes to 22 Prison Rules, primarily dealing with supervision levels, prisoner welfare, purposeful activity, discipline procedures, complaints, and transfer and temporary release. 

17, 19, 20, 21 Supervision levels: Prison Rule 17 states that all prisoners must be assigned a supervision level. The changes to Rules 19, 20 and 21 reduces the obligations of the SPS to deal with aspects of this process within particular time-scales and the form in which certain decisions are communicated. Instead of assigning a supervision level within 72 hours of a person coming into custody, this now must be done within a week. Reviews of supervision levels which were required to be undertaken at 6 or 12 month intervals are now to be done when “reasonably practicable”. 

Where a supervision level is maintained or lowered on review, Governors are no longer obliged to provide the prisoner with the reasons for this in writing, although reasons should still be communicated as soon as is practicable. Similarly, changes to Rule 21 mean that where a prisoner is to be assigned a higher supervision level, or certain categories of prisoner (primarily those serving a life sentence) are to be assigned a supervision level other than low, Governors are no longer obliged to provide prisoners with advance written notice of this, although prisoners must still be informed. Governors were previously obliged to provide prisoners with documents or information which informed their decisions (subject to reasons not to set out in Rule 27), however these changes mean they are now only obligated to do so “as far is reasonably practicable”. 

33 Prisoner Clothing: Rule 33 sets out the minimum expectations as to what clothing should be provided to people in prison – under the old rules, this includes clean socks and underwear for every day, and other clothing as is necessary to maintain hygiene. If exceptional circumstances occur whereby this is not possible, the Scottish Ministers can direct that this only applies subject to restrictions which they consider appropriate, for a period of up to one month. The changes to the Prison Rules extends the period during which Rule 33 can be followed subject to restrictions, allowing the Scottish Ministers to authorise continued exceptions to this minimum standard for further successive periods of a month at a time. In sum, changes to Rule 33 allow prisoners to go without daily clean underwear and clothing for multiple periods of up to a month at a time, with the consent of the Scottish Ministers. The Scottish Ministers must give their reasons for approving this, and the Governor must “take such steps as are reasonably practicable” to inform those who are affected. 

34 Personal hygiene: the changes to Rule 34, reduces the frequency by which people in prison must be given access to facilities for bathing and showering from ‘on a daily basis’ (where adequate arrangements cannot be made for this to happen every day) to ‘at least twice a week’.

35A Prisoners’ food and drink: In summary, the change to this rule enables an extended period of time by which prisons are able to operate under restricted (i.e. lesser) requirements around the food that they are required to offer prisoners. Existing rule 35 outlines that prisons must provide people in prison with well-presented, wholesome and nutritious food, of sufficient quantity as required for maintaining health and nutrition. So far as practicable, this food must be appropriate for the prisoner’s age, health and religious, cultural, dietary or other requirements. The rule states that the prison must taste samples to check quality and condition. It also maintains that storage, preparation and serving areas must be regularly facilitated. There was already a provision within this rule that where exceptional circumstances or temporary lack of facilities last for more than 48 hours, the Scottish Government can restrict these requirements as appropriate, but not for more than one month. The change to the rule is that where it is deemed necessary due to coronavirus, on application of the governor prior to the expiry of the direction, the prison can “make any number of further directions continuing the effect for successive periods of no more than one month”. This change make it possible for prison Governors, so long as they apply to Scottish Ministers before the direction expires, to extend the direction for another month (and another…).

40A, 41A Recommendations by healthcare professionals / Accommodation in specified conditions: The changes to these rules enables prisoners to be confined to their cell / prevented from participating in specified activities (or for specified periods) for up to 14 days following recommendation from a healthcare professional. Senior SPS staff (on advice of healthcare professional) can extend this for further periods up to 14 days. This appears to be any healthcare professional and not, for example, someone with designated responsibilities or expertise in this area. 

43A Prisoners’ welfare: This change means that Governors are no longer required to “ensure” reasonable assistance and facilities are given to maintain and develop relationships with family and friends, but rather they must provide this “so far as it is reasonably practicable to do so”.

52 Supplies of books, newspapers, etc to prisoners: Delivery of “ books, newspapers, writing materials and other means of occupation as the prisoner may wish to use” is now subject to the limitation that the Governor must consider such arrangements “safe and reasonably practicable”.

63A. Visits: Governor can limit, end, specify groups getting visits (must be retrospective as this was already being done). Governor ‘must regularly review any suspension of visits to assess whether it remains necessary and proportionate in response to effects of coronavirus. 

81A. Work, Education, Programmes: Arrangements for work, education and counselling: Reduces requirements on prisons to assess and determine work/education/programs based on ‘prisoner wishes and needs’; under rule change this becomes discretionary. Suggests prisoners may be ordered to do certain activities (e.g. defined as essential for running prison). As with other rules, this must be reviewed regularly to ensure it is being used in a necessary and proportionate way.

84A Purposeful Activity: Governor may suspend some or all purposeful activity. The rules are unclear as to whether prisoners might be ordered to do prison jobs and subject to discipline for refusing. There is no provision in the rules for a risk assessment of how safe jobs are.

88 Recreation: Governor can suspend some or all recreational activity with same caveat of being required to review regularly to ensure necessary and proportionate.

111A & 116A Reporting breaches of discipline: Officers no longer need to immediately report breaches of discipline but can do so when ‘reasonably practicable’. A 3 day requirement to report a breach when prisoners move prisons has been increased to 14 days.

118A Disciplinary appeals: A prisoner found guilty of a breach of disciplinary procedure is allowed to appeal a decision within 14 days. This appeal is made to Scottish Ministers where the disciplinary hearing was chaired by the Governor in charge, or where it occurred in a contracted out prison. This rule change extends the time period for the Scottish Ministers to investigate and provide a response from 14 days to “as soon as reasonably practicable”. Notably, there does not seem to be any corresponding extension to the time period for prisoners to make an appeal, given the context. 

120A Requests to speak to certain persons: People in prison can make a request to an officer to speak to a member of staff of the Scottish Administration, a member of the visiting committee or a sheriff / justice of the peace visiting the prison. Previously the officer had to act on this “without delay” but this has been changed to “as soon as reasonably practicable”.

122A Complaints to the residential first line manager: This extends time limits on responses from the residential first line manager from 48hrs (or where this cannot be met, 5 days for a written response) to “as soon as reasonably practicable”.

123A Referral of complaints to the Internal Complaints Committee: Changes the time limit within which a Governor must inform the prisoner regarding the ICC’s decision (and related information) from within 20 days of a complaint being referred to “as soon as reasonably practicable after that period.”

131A Healthcare assessment prior to transfer: This changes the requirement for the Governor to seek advice from a healthcare professional regarding a prisoner’s fitness to travel before transfer, so that this now only needs to happen “where appropriate to do so in the circumstances’.

136b Extension of certain periods of temporary release: This change extends the time period that someone can spend on home leave from up to 7 nights to 14 nights (excluding travel time). 

Relevant documents

The Prisons and Young Offenders Institutions (Scotland) Amendment Rules 2020:

Policy note:

Explanatory notes here – 

The 2011 Prison Rules (prior to the amendments):

*This was amended at 13:05 on 09.04.20. It previously said ‘rule 35’ in error.

SPARC response to consultation on whole life custody bill

A member of the Scottish Parliament, unable to gain any support from colleagues outside his party, has launched as an individual member a consultation for a Proposed Whole Life Custody Bill (Scotland): Along with numerous other groups, we have submitted a response to the consultation strongly opposing this senseless, cynical attempt. A summary of our submission follows, and the full response will be available on the Government’s website in due course.

As a collective who have spent many years bearing witness to and researching the harms which imprisonment causes to individuals, families and communities, the proposed whole life custody bill makes no sense on legal, moral, ethical, political and social policy grounds. There is no evidence presented that this sentence would improve the safety of individuals or communities, and there is strong evidence to suggest that it would be both inhumane and challenging to implement. We would also strongly argue that there is no need for this proposed sentence, as it adds nothing to existing law.

Scotland already has and makes use of extensive powers of “whole life” punishment. One example of this is by ordering punishment parts (the minimum period of a sentence to be sent in prison) that cannot be completed within one’s life span, such as the  recent example of a 69 year old man receiving a 37 year punishment part (Angus Sinclair the so-called World’s End killer). Scotland also allows life sentences for crimes less than murder through its Order for Lifelong Restriction. England abolished its analogous discretionary life sentence, the Imprisonment for Public Protection (IPP), under a Conservative Government on the grounds that it was inhumane and unjust. Let’s stop talking about Scotland as being “soft” on punishment, and start evidencing the impact of Scotland’s use of existing sentencing law.

The proposal aims to resurrect  the death penalty by another name. Whole life custody, without the possibility of parole, has been described as sentencing a person to “death by incarceration”. As researcher Ashley Nellis points out, such a sentence means “the government has decided how and where the individual will die. When looked at from this view, LWOP is not so different from the death penalty.”

A sentence without hope or end is incompatible with human dignity and just society. Hope, and specifically the hope of release, is central to construction of both a sense of self and also human dignity. Denying a person the possibility to reintegrate is incompatible with human dignity. A sentence of this type has no place in Scottish society.

A damaging direction for penal policy, moving Scotland even further out of step with Europe and closer to a US norm of ‘perpetual punishment’. In 2008 the Scottish Government embarked on a major reform effort (via the McLeish Commission) that documented how prison populations are harmful and damaging not just people in prison but for the communities and society outside of them. The proposed sentence would reverse an aspiration of progress, and entrench a worrying regressive trend: Scotland already leads Europe with the highest proportion of its prison population serving life sentences. This is not the result of more crime or a higher homicide rate, but of sentencing and politicisation of crime policy, of which this consultation is a sad example. Overall this proposal reflects a deep ignorance of current sentence and prison trends and a sad opportunism of going after easy targets – the worst of the worst individuals – that provides cover for a broader lack of ideas and willingness to work hard towards safe, inclusive and thriving communities.

Knock on effects of longer sentences and a growing prison population. The consultation reflects an unacceptable level of ignorance about the upward drift in sentence lengths in Scotland trends and their effects. Those sentenced to prison are spending longer periods in custody and this has knock on effects for the overall size of prison populations and the problems related to this. This is because a small number of very long serving prisoners has a huge impact on availability of cells, squeezing space. The US thought they could build their way out of this problem. Even the most confirmed tough on crime lawmakers across the Atlantic have now renounced this approach.

The introduction of whole life sentences would have negative implications for all of those who come into the criminal justice system, for another reason. This rebranding exercise mainly acts to increase a rhetoric of ‘othering’ all those in the criminal justice system, simplifying the world into “us” law abiding citizens and “them” horrible criminals. These labels are not based on a reality of people who are all good or bad, and we believe people in Scotland deserve better than to be distracted by these patronising debates at a time when crime is at an historic low, and there are much more urgent matters at hand to ensure the country’s security, safety and success.

People can and do change; sentences without end undermine this. It is particularly challenging to devise a prison regime that is both constructive and safe for those serving a sentence of life without parole (and those working with them), because this group of prisoners have no incentive of progression and “nothing left to lose”. Moreover, research conducted in the US by Marion Vannier suggests the people serving sentences of life without parole may be considered low priority for employment or other opportunities within the prison, leaving their efforts to change poorly supported and often unacknowledged (Vannier, 2016). Lengthening sentences, with a whole life term being the extreme case, may actually reduce the chances that the sentence will be spent productively and constructively.

SPARC Response to Parole Reform Consultation

The Scottish Government ran a consultation in Sept/Oct 2017 on reform of parole. Download SPARC’s response. Among other points, it draws attention to the drastically declining rate of parole release and the increasing rate of parole recalls in Scotland. Did you know that in 1994 nearly one-third of lifers considered for parole received it, but by 2015-16 barely more than 1 in 10 did? Or that the rate of recalling people from parole increased 800% between 1997-98 and 2013-14? Parole is working to keep people in prison for longer and longer periods, in the absence of evidence that prisoners today are worse than those in the past. Instead a system meant to support people’s release to allow for community and family reintegration is doing the opposite. Is a risk paradigm making us safer or encouraging over confinement?

Declining Chances of Parole: Parole Release Recommendations by Sentence Type
The table below shows how sharply use of parole has declined over the past two decades. In 1993/94 prisoners on determinate sentences had a better than 50% chance of earning parole; by 2015/16, they had barely more than a 25% chance. This data comes fromthe Parole Board for Scotland’s own annual reports.

Determinate Sentence
  considered for parole692766483480
  release recommended368345124125
  release rate53%45%26%26%
Life Sentence
  considered for parole119212263366
  release recommended34554844
  release rate29%26%18%12%

Parole Recalls as a Percentage of Total Parole Caseload 2005/6 to 2013/14 [TABLE CORRECTION – written parole response missed out a line of data]: The two tables below combine statistics from Criminal Justice Social Work and Prison Populations to compare the reported parole caseload in a year with the number of people recalled from parole to prison in the same year (receptions). The data should be read very cautiously, and this offers only a rough guide, as receptions are a proxy but not a perfect guide to numbers of people entering prison (one person may be received multiple times in a year) and reporting periods between agencies differ slightly. However, it is remarkable in itself to note the general trend showing that in the mid-2000s the number of parole recalls amounted to less than one-third of the total parole population in the community, but by 2013/14, parole recalls amounted to half of the total parole caseload. ADP means the average daily population of people in prison, and this shows that by 2013/14, the number of people in prison for a parole recall was equivalent to three-quarters of the total caseload of parolees in the community.

CJSW  Parole Caseload1325119211031047
Parole Recalls ADP397515611600
Parole Recalls Receptions347467412421
Recalls as % Caseload (Receptions)26%39%37%40%
Recalls as % Caseload (ADP)30%43%55%57%
CJSW  Parole Caseload984875917921949
Parole Recalls ADP622682702713693
Parole Recalls Receptions440520491453472
Recalls as % Caseload (Receptions)45%59%54%49%50%
Recalls as % Caseload (ADP)63%78%77%77%73%

Rising Parole Recall

In the 1990s parole recall hardly existed. Latest figures show huge increases in the number of people recalled to prison and the number of people in prison for parole recall. This data comes from official prison statistics for Scotland; 2013-14 is the latest available year.

Parole Recall in Scotland picture

Health Inequalities in Scottish Prisons

SPARC recently responded to the Health and Sport Committee’s call for responses to contribute to their current inquiry into healthcare provision in Scotland.

  1. What do you consider are the current pressures on health and social care provision in prisons?
  2. How well do you consider that these pressures have been responded to?

In general, the move from SPS healthcare provision to the NHS has been a positive development as it moves Scotland towards a vision of the person imprisoned as a full and equal member of Scottish society, with the same rights to care as anyone else. However, evidence to date suggests that in practice this commitment has not been realised. Here we refer to the Royal College of Nursing Scotland’s comprehensive review of this transfer Five Years On (2016). We are sure the Committee is fully aware of this report but we wish to be added to the voices of those seeking for its powerful findings to be taken into account. We find its method and approach robust in flagging up key issues in provision of health and social care for those in prison.

The key pressures this report identifies, and which is consistent with our own experiences and awareness of the research relate to:

  • An inability to adopt a prevention focus due to extensive staff time devoted to medication management of those in prison;
  • Lack of continuity in care before, during, and following a prison sentence impacting on the cost effectiveness and efficiency of health care delivery in prison;
  • Relatedly, this finding suggests more than coordination issues between SPS and NHS staff but a more fundamental need to understand and address possible organisational culture differences between health and punishment sectors – from experience we have seen ‘prison security’ and prison personnel staffing issues affect medical delivery (for example, the timings of medication rounds is a direct function of prison and NHS staff shift times and prisoners may receive an evening dose at 4 in the afternoon on weekends, when prison staff levels means after this many are locked in cells). In addition, NHS staff should never, under any circumstances, be required to provide medical interventions to primarily support SPS security and control, this violates the principles of equitable medical care and erodes trust between prisoners and medical staff. Nor should medical staff prescriptions or treatment plans be amended post hoc by SPS. Instances of both have been seen or experienced by members of this group;
  • Finally, staffing levels and pressure generally on staff emerged as a consistent finding and one which requires consideration to maximise optimising health care, outcomes, prevention focus and effectiveness and efficiency issues; however, a core concern of our collective is to ensure that problems within the prison system do not become arguments for expanding the prison system or expanding the prison’s budget compared to other settings where health and other outcomes (i.e. the community) are better supported. Hence, we express concern about the repeated use in the RCNS report of the idea that ‘prison offers the best chance of catching people’ and addressing their health needs. Prison is never the best place to work with people, all other factors remaining equal.
  • Lack of data and understanding of health issues and provision gaps: The RCN wrote that: ‘It is not possible to evidence the impact that the transfer has made on tackling health inequalities and addressing the health care needs of people in prison. This is because there are still some gaps in our understanding of people’s health needs in the criminal justice system and a lack of national reporting and quality outcomes data for prison health care’. An annual prison health report on the existing health inequalities, systemic improvements and kinds of provisions that make up the NHS work, e.g. budgets, would be useful to ensure continual prioritisation and awareness of the issues. The Government needs also to demonstrate more explicitly how prison healthcare is integrated in their national vision of stronger, safer, fairer and healthier Scotland. Therefore, prison healthcare must be recognised as a distinct area of service provision within the long-term strategic plans for Scottish health. Finally, the lack of data reflects wider gaps and progressive loss in knowledge: for example, the most recent published statistics on the prison population date from 2013-14 (with significant disinvestment of resource in producing official statistics on prison populations in Scotland in the past 10-15 years). Effective policy making and transparent democracies require clear and open understandings of who is imprisoned, where, why and for how long. We are concerned that prison healthcare will fall under the same opaque reportage and loss of public oversight.

The fact that 66 deaths in prison custody since 2013 remain undetermined (SPS website) receives far too little Government and policy scrutiny despite extensive recent media coverage:

Staffing and other resource issues likely play into this, but we challenge those concerned with the health and social care of those in prison to prioritise explaining, resolving and providing closure to families of people who die in state custody.

We are not aware of national reporting on prison healthcare and would welcome some mechanism for this. However, we also worry about the emphasis in the RCN report on inadequate assessment of health needs. While we welcome better understanding of these needs, it is important to set this in the context of extensive, almost relentless and often dehumanising assessment processes in prison where people are regularly required to recount multiple times issues of deep personal concern such as personal traumas, drug and alcohol issues, literacy issues, abuse issues and more. We urge a focus on care, prevention and positive, supportive relationships with professionals over endless inquiries (often in front of multiple strangers) in order to achieve perfect recordkeeping.

  1. To what extent do you believe that health inequalities are/could be addressed in the prison healthcare system?
  2. What are the current barriers to using the prison healthcare system/ improve the health outcomes of the prison population?

Health inequalities cannot be addressed effectively when health is viewed as a factor in reduced offending: The new NHS model of prison healthcare has sometimes been presented and justified as an improved form of medical provision primarily because it will help with reducing reoffending[1]. This directly undermines an agenda of reducing health inequalities because it implicitly values NHS provision in prison mainly in terms of its contribution to crime reduction. Healthcare, whether in prison or anywhere else, should be discussed only in terms of treating people who are in need, supporting citizens and improving health and wellbeing in Scotland in general. Prison healthcare should be motivated by the same ethos and vision as the recent National Clinical Strategy for Scotland which stated that: ‘Quality must be the primary concern – all developments should seek to ensure that there is enhancement of patient safety, clinical effectiveness and a person-centred approach to care’[2]. A key challenge to rectifying health inequalities, therefore, is the dominant ethos of the prison system in which all services delivered in this setting are assessed instrumentally in terms of reoffending outcome measures.

Health inequalities cannot be effectively addressed without recognising the harms of prison itself: Prisons, no matter how well they are run or designed, are innately damaging. Reviews of research suggest that time in prison is itself damaging to cognitive function[3]. Research on Scotland by Prof Lesley Graham has further established that those who are in prison have higher mortality rates, of two to more nearly six times higher, than those in the general population, even when controlling for social deprivation[4]. Such work establishes, unsurprisingly, that confinement of human beings is deeply damaging, and this damage should be carefully considered. A discourse has emerged of talking about people in prison as having lower cognitive function, greater health needs, more chaotic lives and so on; and while this may have some evidential support, it diminishes those in prison as a damaged ‘them’ and obscures the extent to which being in prison itself is a health risk and a mortality risk.

Importantly, this risk to health and wellbeing extend beyond the person in custody.  Drawing on large-scale US survey data, Wakefield and Wildeman found that the prison has become an institution which creates and reinforces deep social inequalities, increasing the risks of poor mental health, homelessness and infant mortality for children of an incarcerated parent[5].  While imprisonment rates in Scotland are not comparable with America’s “prison boom”, it is nonetheless clear that supporting a person in custody requires large investments of time, emotional support and financial resources from some of Scotland’s poorest families and communities.  Positioning families as a source of support to render prisons more “survivable” is therefore at odds with adopting a prevention focus or reducing wider health inequalities.

Health inequalities, therefore, cannot be addressed effectively until the harms of prison are addressed, and this includes taking into account Scotland’s high imprisonment rates in policy making and reform. This point also emphasises why we should never talk about prison as ‘being the best chance’ to deliver any public service. If the prison system operated adopted a Hippocratic oath, we would have strong doubts that it is achieving this.

[1] E.g. Michael Matheson: ‘However, factors outside of the control of the criminal justice system affect reoffending. The work of this group has found that reoffending is a complex social issue and there are well established links between persistent offending, poverty, homelessness, addiction and mental illness. When transitioning from custody to the community, gaps in access to vital support services and basic needs can hamper attempts to desist from offending’

[2] National Clinical Strategy for Scotland, February 2016:2

[3] Meijers J, Harte JM, Jonker FA and Meynen G (2015). Prison brain? Executive dysfunction in prisoners. Front. Psychol. 6:43. doi: 10.3389/fpsyg.2015.00043

[4]Justice Committee, Transfer of prison healthcare to the NHS Written, submission from Dr Lesley Graham:

[5] Wakefield, S. and Wildeman, C. 2014 Children of the prison boom: Mass incarceration and the future of American inequality. New York, NY: Oxford University Press