CORRECTIONAL CENTRE’S (MWCC)
COMPLIANCE WITH ITS CONTRACTUAL
OBLIGATIONS AND PRISON
1.1 MWCC has been a troubled prison during its fourth performance year
(August 99- August 2000). This
has been characterised by:
1.1.1 An unacceptably high number of prison incidents the most significant of which were:
• A disturbance on 23/24 August 1999 in which 8 prisoners seriously assaulted 3 staff and as a result of their subsequent refusal to comply with directions CS gas was used to evacuate the unit;
• Breach of Protection Unit, assault and barricade on 16/17 October 1999. In this incident, 3 Protection Prisoners broke out of their unit and assaulted a mainstream prisoner under escort. Subsequently, prisoners in the protection unit refused to be locked down and barricaded the unit. The ensuing disturbance was resolved by MWCC staff, Security and Emergency Services Group (SESG) and the deployment of CS gas;
• The range of security breaches which gave rise to the issuing of the first Default Notice on 10 May 2000. These included a prisoner accessing confidential prisoner-information, a breach of access control in the Gatehouse, a medical emergency response bag being left unattended in a cell and police officers accessing the prison with firearms;
• The security breaches which featured in the second Default Notice issued on 19 May 2000. These involved the loss of control of the Management Unit on the evening of 11 May 2000. In this incident mainstream management unit prisoners "gained unauthorised access to the protection prisoners’ exercise yard". A physical altercation between a number of management and protection prisoners and staff ensued. As well, a bunch of keys for the A2 Management Unit went missing from the prison on 13 May 2000 and were identified as missing only 33 hours after the officer involved had left the prison;
• A major fire in A2 Management Unit on 30 May 2000 in which six prisoners lit fires in the shower units in their cells. The fire caused extensive damage to 2 cells and smoke damage to 4 cells. It posed a very severe emergency which could have claimed the lives of prisoners and staff.
1.1.2 A disproportionate number of prisoners being classified as Protection Prisoners as they were, or felt unsafe, in the prisoner mainstream. This has resulted in up to 29% of the prison muster being held in the now overcrowded protection unit where access to work, programs, education and recreation have all been minimal. Despite the limitation of this environment the trend has continued with the prisoners indicating that their personal safety is their most important priority.
Whilst MWCC management have at various points in the past year expressed a desire to contain this trend and bring the ratio of mainstream to protection prisoners more in line with the industry norm (around 20%) this has not occurred.
1.1.3 Poor performance against its Prison Operations Service Delivery Outcomes (SDO’s) for the 1999/2000 performance year where:
• the levels of attempted suicide/self-mutilation are more than double the maximum allowed benchmark (99/00 rate of 9.7 per 100 receptions compared with a benchmark of 3.8);
• prisoner assaults on staff are almost double the maximum allowed benchmark (99/00 rate of 19 per 100 prisoner years compared with a benchmark of 10);
• prisoner on prisoner assaults are significantly in excess of the maximum allowed benchmark (99/00 rate 45.3 per 100 prisoner years compared with a benchmark of 30); and
• there is an illicit drug rate of 8.57% compared with a benchmark of 8.26%.
The 1999/2000 results for these four SDO's are the worst results for each category in the prison’s 4 years of operation which clearly demonstrates an inability by the prison to implement strategies to ensure the welfare and safety of prisoners and staff.
1.1.4 Sanctions by two external regulatory bodies - the Victorian Workcover Authority, which issued a Prohibition Notice and Improvement Notices against MWCC in May 2000. The Office of Post Compulsory Education, Training and Employment suspension of CCA’s registration as a Registered Training Organisation for one month in January 2000.
1.1.5 Tension in CCA’s relationships with its sub-contractors, most particularly with its Health provider. The latter resulted in ISIS Health Care, the second health care provider at MWCC, withdrawing its services as at 31 October 1999 and MWCC establishing its own health care service. A poor transition characterised this development, as did the resignation of the first manager of MWCC’s self provided health service in June 2000 just months after her initial appointment. The cumulative impact of the persistent changes in the auspice of the health service is that MWCC’s Health Service is now the only health service in Victoria’s Prison System not to be accredited. Despite repeated assurances by CCA (and most recently at the quarterly review meeting on 21 July 2000) that the health service would be accredited by 30 September 2000, the Health Services Manager has advised that no progress has been made for accreditation and that it is now unlikely to be accredited until early 2001.
Furthermore, the Department Human Services (DHS) on 9 August 2000 advised MWCC that a recent examination of MWCC health services "identified significant issues in respect to the delivery of health services at MWCC which could compromise the health of women at the prison." The issues related to conducting "at risk" assessments within 2 hours; reception medical assessments; waiting times to see the Doctor; patient health file documentation; levels of nursing staff and outpatients appointments.
At a meeting today DHS provided preliminary advice on the findings of the Clinical Audit, conducted on MWCC’s health service on 21/22 July 2000. DHS advised that the audit raises serious concerns regarding the delivery of health services at the prison. I will provide to the Minister a briefing on my assessment of the audit once I have received a copy of the report and DHS’s formal advice, due later this week. OCSC and DHS are also examining another outstanding matter in relation to the management of prisoner ‘A’ who attempted suicide on 1 September 2000. 1 will further brief the Minister on any issues arising from this incident, once the matter has been fully investigated.
1.2 Establishing the root causes of these troubles is difficult. The nature of the difficulty appears, however, to be the collective result of.
• Inconsistent management practices and poor leadership at the facility since the resignation of the then General Manager in July 1999;
• Lack of operational procedures, guidelines and on the job support and training for staff;
• Staff shortages and budget constraints. Whilst CCA has insisted that this is not the case the actions of the Workcover Authority, the complaints of the CPSU, the lockdowns of the prison due to staff shortages, feedback from frontline officers, the deployment of staff from less critical functions and the complaints from specialist sub-contractors belie this. Likewise, the general presentation of the facility with deteriorating physical fabric and furnishings and fittings, poorly maintained outdoor facilities and environs appear to reflect financial constraint. Alternatively and equally concerning, they could reflect a lack of pride and ownership of the facility; and
• Poor prison design. The location and structure of the units, the limited ratio of cells to lodge and cottage accommodation, the open campus style of the facility and the modest infrastructure investment in the gatehouse and other ancillary services are restricting its overall functionality.
1.3 Despite CCA’s repeated assurances that its remedial actions would ensure that the service deficiencies identified are addressed, OCSC has assessed that both CCA and MWCC management fail to appreciate the full range of their contractual obligations. The extent of turnover in management and frontline staff at MWCC with all members of the current management team being confirmed in their current positions for less than three months has exacerbated this. Consequently, there remains at the facility an unacceptable level of uncertainty about:
• actions required as a result of past undertakings to correct service failures;
• MWCC’s obligations to fully comply with key policy initiatives (eg. the Victorian Prison Drug Strategy) and Operating Procedures (eg. the management of at risk prisoners),
• MWCC’s obligations to meet industry standards which promote prisoner well being and ensure prisoners have access to the full range of programs and activities as required by Section 5.2. Annexure T of the PSA; and
• the ramifications of the contractual action taken to-date and the obligations CCA has to ensure MWCC is operating in full compliance with its PSA as at 26 July 2000.
1.4 In addition, CCA management, has, in my view, failed to fully accept and acknowledge as legitimate many of the concerns held about the performance of the prison. Instead, they have argued variously that:
• the action taken to-date is unwarranted and has been politically motivated;
• OCSC has overstated the seriousness of incidents and service breaches and has been too prescriptive in what it has required of CCA;
• OCSC has failed to give CCA sufficient credit for the improvements that have been made and the remedies that have been put in place;
• responsibility for many of the service failures should be ascribed to aggrieved and under performing staff-,
• overcrowding at the facility and the delays in the commissioning of the 16 bed demountable unit has been a factor in placing pressures on staff that affect decision making and operational efficiencies;
• the Service Delivery Outcome (SDO) benchmarks set for the MWCC should be reviewed as in CCA’s view there is a flaw in the original data on which the benchmarks were determined. (Note, however, the MWCC SDO performance in 99/2000 in ‘prison operations’ has exceeded any reasonable adjustments that may come as a result of the current KPMG Review of SDO’s);
• past and present Commissioner(s) and DOJ management have failed to manage the MWCC contract with a commitment to a "partnership" approach.
1.5 Repeated efforts have been made by both OCSC and the Government before, during and after the Default Notices, to detail the basis on which OCSC has assessed MWCC persistent performance failures and to dispel these arguments. Unfortunately, despite the acknowledgment of MWCC management of inadequacies in many aspects of its correctional practice, this does not appear to have prompted CCA to examine the root causes of their operational difficulties. Consequently, as with Defaults 1 and 2, many of the remedial strategies which have been instituted to address Default 3 appear to OCSC to be minimalist and reactive, and on my assessment have failed to effect sustainable, systemic change.
1.6 Notwithstanding the facts that CCA has indicated that its cure plan of 25 July 2000 has been implemented and that some improvements have been noted in the prison’s performance for July/August vis-a-vis a decline in incidents of prisoner-staff assaults, a decline in positive random general drug testing results, and incidents of fire and good order (see Attachment 1), 1 remain unconvinced that the underlying causes of the prison’s difficulties have been adequately addressed. Too many of their improvement strategies are implemented by the deployment of resources from existing functions. Rarely are additional resources or new effort deployed. Often compromises are made to "less pressing" functions in order to address more glaring deficiencies. Examples include:
• the decision to close the horticulture program for protection prisoners and deploy the staff resources of the program to enhance security functions in the prison;
• the decision to honour the commitment made as a result of Default 3, to provide 24-hour staffing in the Management Unit (A2) by deploying night shift Security and Escort (S&E) officers to the unit on rotation across the shift rather than establish a dedicated roster for this purpose.
These examples demonstrate a propensity to employ "makeshift arrangements" even though they may compromise other aspects of the prison’s performance.
1.7 As a result, I am strongly of the view that the sustainability of these limited improvements which have been noted to date, and the ability of CCA to proactively and competently manage MWCC in order to prevent the cyclical unrest that has been evidenced at the prison at various points in the past year, and to consistently ensure the safety and well-being of prisoners, staff and visitors remains in question.
2. Default Number 3
2.1 The chronology for the issuing, cure action and monitoring of Default Notice 3 is as follows:
• On 18 July 2000, the Secretary issued a third Default Notice to Mr Terry Lawson, Managing Director, Corrections Corporation Australia (CCA) and Excor Pty Ltd, for failure to deliver a range of Correctional Services at MWCC. The seven-day cure period for this notice expired on 25 July 2000. No application for an extension to the cure period was made by CCA despite the nature and breadth of the Default and the provisions contained in Section 57.2 of the PSA.
• On 25 July 2000, Mr Bob Bradbury, Director Operations, CCA, wrote to the Commissioner enclosing a cure plan for the Default Notice. In the covering correspondence, he noted "the plan is comprehensive and I am confident it addresses all areas of concern".
• Between 26 July and 15 August 2000, the Office of the Correctional Services Commissioner (OCSC) had up to 4 monitors on site to assess MWCC’s compliance with its Correctional Services obligations as they related to the Default Notice. From 15 August - 13 September monitors have been deployed to MWCC as needed to gather further information and investigate newly emerging issues.
• CCA was advised by formal correspondence and via direct discussion between the Secretary and Mr Lawson and between Ms Julia Griffith, Manager, Monitoring and Review and Mr Bob Bradbury that the monitors would be assessing against a criteria of full compliance effective as of 26 July 2000.
• The on site monitors are a highly skilled and experienced group of Correctional Services managers well placed to undertake their task with authority and professionalism. Of most relevance to their role is their collective experience in operational management and security as well as their knowledge of MWCC’s contract and operating procedures. Two of the on site monitors had specialist backgrounds in security management. One of these officers had been the Operations Manager of the SESG for 5 years before joining OCSC and the other was a secondee from SESG who had previously been the Deputy Governor of Tarrengower. The other 2 officers are even more experienced in prison management. One is OCSC’s most senior monitor. He has been a senior prison Governor and has 12 years experience in a correctional inspectional role. The other has significant prison management experience and in the past was the Deputy Governor at Barwon Prison. Currently, he has, amongst other duties, primary responsibility for OCSC’s endorsement of the operating manuals and procedures of both public and private providers.
• The monitoring methodology adopted by the team was developed in consultation with legal advice. The methodology involved the development of a monitoring program which examined the generic criteria by utilising the particulars of the service failures contained in Default Notice 3 as proxy’s for an effective response. Additional items were added to the assessment if they had a bearing on the assessment against the service criteria. Each criteria was drawn from the relevant MWCC policies detailed in the Centre’s Operating Procedures.
• The monitoring team reviewed the Centre’s delivery of correctional services, for the period 26 July to 15 August 2000. The frequency of reviewing each correctional service criterion differed, depending on the correctional service reviewed. A number of the monitoring criteria were examined regularly (daily) and at random, whilst for others it was only necessary to conduct weekly assessments, or only required the one assessment. Assessment reports were compiled for the Commissioner detailing the Monitors findings. These reports were subsequently provided to the Commissioner for assessment of overall performance.
• On 10 August 2000, mid way through the review period, the Commissioner and the Manager Monitoring and Review met with Mr Bradbury and Ms Whyte, General Manager, MWCC, and advised that the monitors had identified concerns about the continuation of lockdowns due to staff shortages, the prison’s performance against its obligations vis-d-vis self-harm management, drugs management and strip searching of prisoners; and that an assessment of performance against the security measure was continuing.
3. Default Notice 3 - MWCC’s Compliance with the Requirements of the PSA
3.1 OCSC assisted by DHS in relation to health matters, has undertaken a comprehensive assessment of MWCC’s compliance with its correctional services obligations in the 9 areas of service failure identified in the Default Notice issued on 18 July 2000. This assessment commenced on 26 July 2000, the day after the 7-day cure period expired. 3.2 The criterion used by OCSC to assess compliance was that:
effective as at the end of the cure period on 25 July 2000 (noting that CCA did not apply for an extension of this period), MWCC has addressed all service deficiencies via its cure plan and its work practices and procedures are fully compliant with the PSA and endorsed Operating Procedures.
An expectation of fall compliance was considered to be appropriate. It is a fair and reasonable test given that CCA was given ample opportunity to resolve the service failures in advance of the Default Notice. The Commissioner has over an extended period of close to 12 months, repeatedly advised MWCC management and the corporate body of the need to improve the prison’s performance; to resolve persistent breaches of its correctional services obligations and to institute remedial action sufficient to ensure the safe and secure containment of prisoners.
3.3 Having due regard to the reports of highly qualified monitoring staff and on site observations made in relation to the aforementioned criteria, I have determined that:
• MWCC has demonstrated compliance with its correctional services obligations and the PSA in respect to 4 of the component particulars of the default;
• MWCC has failed to demonstrate compliance with its correctional services obligations and the PSA in respect to 5 of the component particulars of the default. Service failures in the components have persisted beyond the expiration of the cure period. (See details in Table 1).
Table 1: Commissioner’s Assessment of MWCC’s Compliance with its Correctional Services Obligations in Respect to the 9 Component Particulars of the Default Notice
• Containment and supervision of prisoners at risk Non-Compliant
• Management of non-conforming prisoners Compliant
• Provision of adequate staffing to ensure Non-Compliant*
close prisoner surveillance and maintenance of
security/safety of staff and prisoners
• Breach of prison management specifications Non-Compliant
due to lockdown
• Unauthorised staff members Compliant
• Management of programs and security procedures Non-Compliant
for illicit drugs
• Provision of sufficient security systems to ensure Non-Compliant
security and safety of prisoners and staff
• Management of emergency responses and compliance Compliant
with emergency management procedures
• Assessment of prisoners on reception Compliant
(*The issue of lockdowns is deemed an area of non-compliance in two components - the Provision of Adequate Staffing to Ensure Close Prisoner Surveillance and Maintenance of Security/Safety of Staff and Prisoners and in the Breach of Prison Management Specifications categories. This means the assessment is non-compliant for both these components of the Default Notice.
Attachment 2 details a summary of the information on which I as Commissioner made this assessment.
4. Commissioner’s Assessment of the Significance of the Non-Compliance
The areas in which MWCC remains non-compliant cover 5 of the most fundamental aspects of the prison’s operations. Each area is essential to ensure the safe custody or welfare of prisoners and staff namely, the maintenance of security; the identification and management of at risk prisoners; prisoners out of cell time and management of illicit drugs.
4.1 Provision of Sufficient Security system to ensure Security and Safety of Prisoners and Staff
Security is of primary importance to every prison, especially a maximum security prison. It is necessary for the protection of the public, staff and prisoners. It prevents escape, controls contraband and promotes the maintenance of good order. It must exist before any other aspect of a facility’s operation. Security procedures must not only be adequate, they must be followed. They must also be monitored continuously to ensure compliance.
The core elements of the security program of any well-managed correctional facility include:
• a highly visible and actively engaged management staff,
• a strong workforce management program;
• a well designed system for the classification of prisoners to different residential units, work functions and programs;
• adequate physical plant and equipment;
• a fully implemented set of policies and procedures (including such critical elements as emergency and incident management procedures, prisoner accountability, key and tool control and prisoner discipline).
Security at MWCC does not satisfy these criteria even though CCA has been advised of the need to significantly upgrade security at MWCC for more than 12 months. For example in correspondence to Mr Terry Lawson, Managing Director CCA, of 9 September 1999, the Commissioner in advising of her concerns over recent significant incidents at the prison (and confirming that these concerns were discussed at a meeting with Mr Lawson and the Deputy Secretary DOJ on I September 1999), advised of "the urgent requirement for key operational strategies to be put in place to resolve these fundamental issues of prisoner and staff security and safety". The letter attached the critical security concerns requiring attention and identified prisoner management; incident management; prisoner discipline; operation of the management unit; staffing levels; security management; and incident response.
Some four months later, the Commissioner’s report tabled at the Quarterly Review meeting on 4 February 2000 affirmed that:
"CCA will need to consolidate improvements in service delivery specifically vis a vis managing the response to, and prevention of, self harm; the management of the protection and management unit prisoners; and ensuring tighter security and maintenance around the site." The Commissioner advised that:
"Consolidation of the MWCC will require continued vigilance on behalf of CCA management, adequate corporate support and staff resources, establishment of improved operational practice and procedures, particularly vis-a-vis security and major incident management".
Further to this, following a number of security breaches at the prison in early 2000, the Commissioner in formal correspondence of 18 April 2000 to Terry Lawson, Managing Director, CCA advised:
"Unfortunately, I do not have confidence that the corrective action implemented to date ensures that the services now fully comply with the correctional services requirements of the Prison Services Agreement. In particular, whilst the Centre undertook to implement a number of strategies to address security at the prison, in the latter half of last year, the security remains of concern to me. I am most concerned that recent incidents at the prison are an indication that the prison is not consolidating this aspect of its performance to the extent that is needed and that ongoing serious lapses of supervision and security are evident at the Centre These non compliance issues adversely impact on the public interest and the safe custody and welfare of prisoners. As such, and given that I have signalled a number of these in monitoring reports, it is imperative that CCA provides an immediate management response to resolve outstanding issues."
Security breaches have featured in all 3 Default Notices issued with respect to MWCC’s service failures. Significant activity has been undertaken by MWCC to address these failures with OCSC Monitors identifying evidence of some consolidation of this aspect of the prison’s operations in the areas of identification of visitors entering and exiting the facility, accountability for tools and knives, escort procedures, intelligence systems, seizure of contraband, accountability for emergency equipment and others (see details in Attachment 2). Whilst this improvement is to be commended and encouraged, it is of significant concern that despite actions implemented in the cure plans of each of the three Defaults, systemic changes have not been made. As a consequence serious lapses in security continue to occur at the prison. Most recently this has been demonstrated by 3 serious security breaches. They include:
a) Bomb Threat
At 2:30am on 1 September 2000, an officer was advised by prisoner ‘A’ of an alleged bomb being located in his car in the car park. The Officer took the threat seriously and advised the Centre Coordinator, who ultimately provided the Officer with a taxi voucher for transport home. The Coordinator did not however initiate CCA’s contingency for Bomb Threat (code orange), as required by MWCC policy 8-102. Instead the Centre Coordinator took no action until 7:00am when he advised the next shift Centre Coordinator and the Operations Manager (8:15am). As a result the bomb threat contingency was not put in place until activated by the General Manager at 9:25am, some seven hours after the threat was made. This practice was highly unsatisfactory. As acknowledged by CCA itself in their correspondence it breached MWCC’s policy. It had the potential to place the security of the prison at risk.
b) Security Breach A2 Management UnitDuring the night shift on 1 September 2000, at 11:15pm a lone officer heard a noise and identified prisoner ‘B’ unsecured in the short side of the A2 Management Unit. The officer contacted the night shift supervisors, who immediately attended and secured the prisoner in her cell. Whilst the prisoner was secured without incident, the security of the management unit / prison could have been totally compromised, given that the S&E officer stationed in the unit at the time could have entered the short side of the Unit unaware and been taken by surprise and overpowered. This officer carried keys which access all cells in the unit as well as its unit entry / exit doors and the perimeter fence.
The review of this incident by OCSC has highlighted a range of serious concerns most notably that:
i) the Management Unit was not staffed from the lock up (8: 00pm) through to 11:10pm on 1 September 2000 (when officer ‘A’ took up her position in the unit). Whilst two visits to the Unit were made at 9:30pm and 10:30pm to check on two prisoners under observation status, there was no staff member in the Unit, contrary to MWCC’s commitment in their cure plan to ensure one staff member is always present in the Unit;
ii) at some point after lock down prisoner ‘B’s’ cell door was unlocked, possibly during the medication round and not resecured. This is a serious security breach most especially as it occurred in the Management Unit;
iii) the incident was not appropriately recorded / reported by MWCC. Rather the A2 officer was instructed by the Supervisor on the night not to log the incident. The next day the Supervisor did instruct the officer to complete a report however he did not report the incident to prison management who only became aware of the incident 5 days after the event when advised by OCSC monitors. MWCC’s reliability of reporting in this instance may not be an isolated example when it is cross referenced with the failure to identify an alleged assault on prisoner ‘C’ on 11 August 2000 (see details at Attachment 2). There is a need for further integrity in the incident reporting process, which is clearly an area requiring ongoing vigilance by MWCC.
c) Presence of Oil Burning Candles in PrisonFurther to a fire in a cell in the Protection Unit at MWCC on 1 July 2000, caused by a candle catching tea towels alight, Mr. Bob Bradbury, Director Operations, CCA advised in correspondence (of 21 July 2000) to the Manager, Monitoring and Review that, "I wish to confirm that candles are no longer allowed in the prison and that they are no longer sold at the Prisoner Shop." Despite this assurance OCSC monitors have recently established that candles are no longer being sold at the prison however stocks have not been removed from the prisoners accommodation. A review of the ‘C’ Accommodation Units on 29 August 2000 indicated numerous oil burners present, including candles for religious purposes. Furthermore, on the visit I made to the prison with the Minister on 18 August 2000 I noted a significant number of candles in the room of a prisoner in B accommodation.
This reflects poorly on CCA’s capacity to effectively implement the directions of its Operations Director, even when the directive relates to a matter as serious as a fire hazard.
Despite improvements in its work practices in some areas of security management, MWCC remains in breach of its obligations to provide a safe and secure environment for prisoners and staff. Recent security breaches have been of particular concern as each has had the potential to place the facility at risk and each indicates that MWCC’s work practices vis-a-vis security are still not being consistently applied despite 3 Default Notices and refresher training for staff.
4.2 Containment and Supervision of Prisoners at Risk
MWCC’s duty of care requires staff to sustain prisoners’ mental well being and to protect them from themselves and others. Its practices and procedures must include adequate means to sustain prisoners in difficulty and enable them as far as possible to cope with the burden of custody.
To do so, MWCC, like other Victorian Prisons, must have effective systems in place to prevent suicide and self-harms and all staff must know, and be accountable for, the part that they are required to play in the response to vulnerable prisoners. Unfortunately, this is not currently the case at MWCC even though CCA has been repeatedly advised of the need to improve its prevention of, and management of prisoners at risk, who are self-harming.
For example, at the Quarterly Review meeting on 4 February 2000, the Commissioner’s Report noted the unacceptable increase in self-mutilation and commented that:
"CCA will need to continue to consolidate improvements in service delivery specifically vis-a-vis managing the response to, and prevention of self-harm."
Also, at this meeting, DHS advised of the need for systems to validate the "at risk" assessments and to determine that prisoners were assessed within 2 hours of referral as required by the SDO. The DHS report noted that:
"This has been raised with CCA who have given an assurance that recording systems have been amended and can now he validated".
The report also noted that CCA reported that for November 1999, only 2 prisoners were assessed as "at risk" which did not reflect the 15 incidents of self-harm for the month. The report noted:
"It is assumed that prisoners who self-harm are deemed "at risk" in accordance with the agreed definition and subsequently should be appropriately assessed to ensure their ongoing safety."
This advice followed earlier advice from the Commissioner in a letter to Terry Lawson on 7 December 1999 referring to "at risk" assessments which stated:
"...Ray Wiley has been advised that the requirement to provide an assessment by a psychiatric professional within 2 hours is non-negotiable and must be provided in 100% of at risk cases. This is a critical SDO in ensuring the appropriate duty of care is taken for prisoners and 1 was disappointed that the new MWCC management were not familiar with the details of such a critical service delivery outcome".
Terry Lawson in his response of 16 December noted these comments and the SDO requirement.
DHS has also raised this issue with CCA at the two most recent quarterly meetings (30 May 2000 and 21 July 2000). On both these occasions, the A/Manager, Service Monitoring and Review, DHS, advised in formal correspondence of 15 August 2000, "CCA has given assurances to DHS and (OCSC) that appropriate systems were in place to ensure prisoners referred for "at risk" assessment are assessed within 2 hours of referral. DHS checked again to see whether these systems are in place and again found no evidence that a system has been established for ensuring a timely response to "at risk" referrals at MWCC."
• the issue of Suicide and Self-Harm of prisoners has been the subject of extensive debate within the Victorian Corrections Industry since the Review of Suicide and SelfHarm in Victoria conducted by Mr Peter Kirby, Professor Paul Mullen and Ms Sue Wynne Hughes in 1998.
The Kirby Review stressed the need for a comprehensive response to the prevention of suicide and self-harm which included minimising the impact of individual vulnerabilities, reducing precipitants and augmenting protective factors (Kirby Review: p2).
Since the Kirby Review, OCSC has been working closely with providers (including g MWCC) in order to address a range of factors identified in the Kirby Review, including development of a common risk assessment tool; improving the flow of information between professional groups; and developing a comprehensive framework for the management of prisoners at risk of suicide and self-harm.
• MWCC should be acutely aware of the need to proactively manage these incidents further to the death of prisoner ‘D’ in September 1998. Prisoner ‘D’ was the first female prisoner to die in custody as a result of suicide since 1991 and her death raised a number of issues relating to assessment of suicide risk, communication between professionals (including correctional staff), the role of the case officer, and the response to vulnerable prisoners.
It is therefore extremely concerning that OCSC’s assessment of MWCC’s containment and supervision of prisoners at risk during the post cure period reveals a lack of communication, team work and support as well as deficiencies in procedures and systems of documentation. Thus, despite the action MWCC was to take in relation to its cure plan, a review of the assessment and referral processes and the monitoring of prisoners identified as ‘at risk’, indicates that MWCC’s poor communication and work practices (as evidenced by the examples identified in Attachment 2) persist and have the potential to expose prisoners to serious risk. Its practices fail to meet industry standards and continue to be in breach of MWCC’s operating procedures and PSA.
MWCC remains in default of its correctional services obligations as they relate to the requirements for the containment and supervision of prisoners at risk. The significance of this cannot be under-estimated given that MWCC is a maximum security prison responsible for the care of prisoners at various stages where it is known that they are potentially at their most vulnerable (eg. As acknowledged in the Review of Suicide and Self-Harm in Victorian Prisons, the reception period is regarded as crucial for all prisoners and particularly those regarded as being at risk of self-harm). Despite some decline in self-harm incidents in recent times, MWCC’s performance against this benchmark remains extremely poor with its year to date rate of 9.7 being more than double the benchmark level and the highest result recorded for this SDO for any of the performance years in MWCC’s 4 years of operation. The actual number of self-harm incidents for the 99/00 performance year was 99.
4.3 Provision of Adequate Staffing to Ensure Close Prisoner Surveillance and Maintenance of Security /Safety of Staff and Prisoners; and
Breach of Prison Management Specifications due to Lockdowns
MWCC is from time to time, like all Victorian prisons, locked down during the day to effect an accurate count of the prison muster and to facilitate a range of security operations (eg. cell searches). In addition, MWCC locks down each Tuesday afternoon so that staff can participate in training and on a unit by unit basis at the time medication rounds are conducted.
Over and above this, MWCC has been regularly locked down since 12 May 2000, following the WorkCover Authority’s issuing of Prohibition and Improvement Notices against the prison due to Occupational Health and Safety issues which had resulted from staff shortages. By 28 August 2000 this has resulted in prisoners being locked down in various units for anywhere between 1 and 12 hours. Lockdowns, due to staff shortages, occurred on 53 days of the 109-day period reviewed (from 12 May 2000 to 28 August 2000). Units A4 and A3 were most regularly locked down, with A4 experiencing lockdowns on 29 days (totalling 108 hours) and A3 on 20 days (totalling 77 hours). Other units (C units, B units, Al and A2) experienced lock downs on fewer occasions between I and 7 days (see Attachment 3). The most significant lockdown occurred in unit A2 (management) on 20 May 2000 where the unit was locked down all day. This resulted in prisoners being locked in their cells for 36 hours from the evening of 19 May 2000 to the morning of 21 May 2000.
Disappointingly, lockdowns continued for 10 days after the expiration of the cure period for periods ranging from 1 to 8 hours. The most significant lockdown was on 2 August 2000, where prisoners in unit A4 were locked down for 8 hours, 15 minutes, which effectively meant these prisoners remained secured in their unit for 20 hours/1 5 minutes from 2 August to 3 August 2000.
CCA was advised by the Commissioner on a number of occasions that its PSA obligations continued to apply and could not be forsaken to facilitate compliance with the WorkCover Authority’s notices. For example:
The covering letter to Default Notice 2 , on 19 May 2000, from Secretary, DOJ, to Terry Lawson, Managing Director, CCA, advised of the Secretary’s concerns of lockdowns stating:
"I am advised that the Prohibition Notice requires staffing levels to be maintained in accordance with the staffing, roster viewed by the Inspectors and if staffing levels fall below this level, partial lockdown procedures are to be implemented. I am advised that a partial lockdown of Units A3 and A4 occurred on 13 and 14 May 2000 as a result of this requirement and that unlocking was delayed one hour on 15 May 2000. It is imperative that the prison continue to provide the correctional services agreed in the Prison Services Agreement, whilst at the same time achieving the required occupation health and safety standards."
The Commissioner’s report tabled at the Quarterly Review meeting with CCA on 30 May 2000, noted the level of lockdowns occurring at the facility due to staff shortages (for the period 12 to 26 May 2000) and advised CCA that:
"CCA are required through the Prison Services Agreement, Prison Management Specification, Part 5 (Section 5.2(d)) to provide a 12 hours out of cell time for prisoners per day Of particular concern is the frequency in which the A4 unit has been locked down. This is the prison’s Drug Treatment Unit and OCSC monitor’s have been advised that the regular lockdowns are restricting the delivery of one to one counselling activities with the prisoners. There has also been some interruption to the horticulture industry due to staffing arrangements. It should be noted that the OCSC has received a significant number of complaints from prisoners and concerned stakeholders in relation to the lockdowns.
The General Manager, MWCC, has advised that as of 27 May 2000 the prison will be back to normal operations as the training of management unit staff will have been completed which will make casual staff available for deployment to other areas in the prison."
The issue was also raised with CCA at a meeting with Secretary DOJ and the Commissioner on 23 June 2000 and again at the Quarterly Review Meeting held on 21 July 2000.
In addition, in correspondence of 1 August 2000 to Mr. Bradbury (copy to the General Manager, Excor Investments Pty Ltd), the Commissioner indicated that CCA’s cure plan for the default contained "an ambitious expectation that (it) will have addressed all areas of noncompliance within the cure period", she also noted that "the following correctional services failures are unlikely to be addressed by the cure plan proposed. The need to ensure prisoners have a schedule which each day provides a minimum of 12 hours out of their cells (as indicated by the Prisoner Information Guide included in the cure plan which details a daily routine whereby prisoners are let out at 8:15am and locked down for final count to commence at 8:00pm)".
Mr. Lawson responded in correspondence dated 4 August 2000, indicating that with respect to "Default Notice Three, in the case of the items you have identified, as unlikely to be addressed in the cure plan, I offer the following:
"The Prisoner’s Handbook will be changed to reflect an 8:00am to 8:00pm operational day, staff proceed directly to their allocated posts and unlock, daily briefing are conducted by the coordinator at individual posts."
Clearly both CCA and MWCC were aware of their obligation to ensure that "prisoners have a schedule which each day provides a minimum of twelve hours out of their cells, six hours work (five days a week) and participation in a range of programs and activities" (Section 5.2d of the Annexure T of the PSA). It is therefore of serious concern to OCSC, that MWCC continued to lockdown prisoners due to staff shortages for 10 days after the cure period expired. The lockdowns resulted in prisoners entitlements and access to work, education and programs, telephone calls and the like being seriously compromised. Significant tension was generated in individual units and repeated complaints made about the hardships this generated. This has left some residual disquiet amongst prisoners and has the potential to re-ignite past perceptions of deprivation and injustice into the future. This potential unrest must be monitored carefully, most especially in the Protection Unit where the routine of prisoners is already compromised.
No lockdowns occurred at MWCC for the period 7 August to 26 August after OCSC advised that lockdowns were seen to be indicative of non-compliance and, 4 staff were temporarily transferred from Borallon (on 7 August 2000). These staff left MWCC on 18 August. Disappointingly however on Sunday 27 August, the B Units and A4 unit were again locked down for some hours due to staff shortages.
MWCC has subsequently advised OCSC that recruitment action is being taken and MWCC intends to appoint 5 additional experienced staff. As at 28 August, four of these officers had commenced duties (3 on the weekend of 26/27 August).
The level of past staff turnover, the fact that MWCC will need to recruit extra staff for the muster increase that will occur with the opening of the new demountable unit, and the requirement for newly recruited staff to undertake 6 weeks training unless otherwise exempted, leaves me concerned about MWCC’s ability to maintain its commitment to its OH&S Agreement and avoid future lockdowns.
MWCC remained in default of its contractual obligations for 10 days after the expiration of the cure period with respect to lockdowns. I remain unconvinced that the strategies adopted by CCA will maintain sufficient staff to honour the MWCC OH&S Agreement as well as the service obligations specified in the PSA. Instead, I fear that from time to time lockdowns will continue to occur as a result of staff shortages and that, prisoner entitlements and rights will continue to be unduly compromised.
4.4 Management of Programs and Security Procedures for Illicit Drugs
The Victorian Prison Drug Strategy (VPDS) has provided the framework for managing all aspects of drugs in Victorian prisons for the last 8 years. This strategy was provided to all prison providers as a mandatory policy and compliance was required with all components. It was also mandatory that the policy was included in all provider’s operating manuals. It was the basis for the dispersal of Turning the Tide funding and has been the subject of review and redevelopment for the past 3 years.
Regrettably at this time, management and staff of MWCC, in strong contrast to other providers, appear to have little understanding of the mandatory nature of the strategy or the need to apply it consistently. Few systems appear to be in place at MWCC to monitor or encourage compliance with this strategy and despite significant attention given to the issue of strip searching associated with the strategy because of criticism of lobby groups, MWCC is still non- compliant with this aspect of the strategy.
This is of grave concern given MWCC’s rate of illicit drug use is the highest of any of Victoria’s prisons (see Attachment 4). It also has the highest number of drug overdose incidents reported in the daily report for the period of 22 August 99 - 21 August 2000, with its 11 reported overdoses constituting 45.83% of all overdoses in Victoria’s male and female prisons (see Attachment 5).
Despite this CCA has, in the view of OCSC, been slow to demonstrate a proactive and rigorous approach to the detection and deterrence of drugs in the prison (see details in Attachment 2). For example, notwithstanding the rate of illicit drug use, MWCC has reduced its barrier control exercises at the prison over the current performance year. It has also failed to:
i) effectively target prisoners for testing who may be suspected of using or trafficking illicit drugs. During the review period (26 July to 15 August 2000) four instances of drug related activity (2 seizures, 2 Protel entries) were identified by the OCSC review, which were considered to warrant targeted urinalysis testing. MWCC did not conduct any targeted testing on any of the prisoners involved in these four instances;
ii) be compliant with the VPDS by not conducting mandatory weekly urinalysis for Identified Drug User (IDU) prisoners. The review examined IDU prisoners (for two weekly periods during the review) participating in (i) residential drug program and (ii) other drug programs.
For the residential program for week I all prisoners only provided one instead of two samples. (For week two all prisoners provided the required samples). For the other drug programs for week 1, none of the 25 participants provided a sample. For week two, all 24 prisoners provided samples however, 6 provided only one sample, instead of their required 2.
Furthermore OCSC’s monitoring of compliance has confirmed some extremely unusual practices in relation to urinalysis testing which have implications for security and prisoner safety. These practices include:
• prisoners being removed from their accommodation during the night shift period for drug testing, when there is only a minimum staff complement to manage the process. Whilst the VPDS is not prescriptive as to when testing should be conducted, the practice of removing numbers of prisoners out of their accommodation at night has the potential to significantly compromise the security of the prison after hours. OCSC’s review examined the drug testing times for prisoners for the month of August 2000 and identified that 27 prisoners (16% of all urines collected for the month) were let out of their accommodation between the hours of 8:00pm and 6:45am 24 of these prisoners were released from their accommodation to be tested as part of a drug treatment program. The release of prisoners was either on an individual basis or as in the case of 5 August 2000, 11 prisoners were removed from their accommodation between 4:00am and 6:34am. OCSC confirmed that no additional staff were present to assist with this urinalysis process on 5 August 2000;
• a prisoner who appears to be dictating the terms of her drug testing routine. For the last 3 months, prisoner ‘E’ has been tested on 13 occasions between 4:00am and 5:20am. The MWCC Manager Health Services has advised OCSC there is no medical reason as to why prisoner ‘E’ has to be tested at these times.
• The testing of prisoner ‘E’ at these times is of significant concern as the predictability of testing enables the prisoner to use drugs with a decreased likelihood of being detected through the urinalysis process, as the prisoner can flush drugs through her system prior to the testing time. In the case of prisoner ‘E’ the most recent pathology report from Dorevitch warns "The creatinine level in the urine sample taken on 4 August 2000 is < 2. 0 mmol/L which suggests dilution of the sample and possible false negative results." It is clear that prisoner ‘E’ continues to use unauthorised drugs, as during the above mentioned period she has returned 2 positive results and has also overdosed on one occasion.
Dorevitch Pathology advise (on the basis of most recent research) that for any drug class, that this will dilute the drug by 10 times which is likely to drop the drug levels to below the cut off level for a positive result.
It has been pleasing to note that there has been some decline in the Random General Testing illicit drug rate at MWCC between June and August 2000, the MWCC’s performance year result (8.57%) is above the maximum allowed benchmark of 8.26%. Regrettably, as demonstrated by the factors detailed above this alone is insufficient to suggest that MWCC is performing as it should in relation to the detection and deterrence of drugs in the facility.
MWCC remains in default with respect to its obligations in the management of programs and security procedures for illicit drugs. Its work practices are not consistent with the requirements of the Victorian Prison Drug Strategy and potentially expose prisoners to significant risk.
5. Contractual Options Available to Government in Response to the Commissioner’s Assessment of MWCC’s Compliance with its PSA
As you are aware, I formally advised CCA on 1 August 2000, that you had determined that all of the Defaults that have occurred at MWCC are material defaults and have an adverse effect on the public interest and the safe custody or welfare of prisoners.
Section 57.2 of the PSA Sub-Section C(1) indicates that if the Default is a Material Default, it must be cured or remedied to the Minister’s satisfaction within the cure period described in Clause 57(a). Failing this, the Minister may (without prejudice to any other rights provided for and conferred by the Agreement with respect to the Correctional Services Default) where the Default is a Material Default exercise all or any of the following remedies:
• Terminate the Agreement; or
• Sue the Contractor for Compensation for that Correctional Services Default and exercise all available legal and equitable remedies without limitation suing for specific performance, injunctive relief or such other orders as the Minister considers appropriate; or
• Require the Contractor to remove the Operator and appoint a new Operator; or
• If the provider of the Accommodation Services under the Accommodation Services Support Agreement is also the Operator, require the Contractor to terminate the Accommodation Services Support Agreement and to make alternative arrangements for the provision of Accommodation Services, which are satisfactory to the Minister.
6. Communication with CCA
Earlier today I met with Bob Bradbury, Director Operations, CCA, and advised him that I have assessed MWCC to be non-compliant against 5 critical areas of its prison operations. I had earlier advised him of this assessment by telephone on 6 September 2000. I conveyed my concern that this non-compliance has been persistent over an extended period and that OCSC monitoring post the cure period had identified a number of serious shortcomings in the delivery of Correctional Services at MWCC. I also conveyed that there are further concerns arising out of the Clinical Audit which is currently being finalised. I advised that my report to the Minister was highly critical on the current performance of the prison.
Mr Bradbury acknowledged these concerns and expressed his consternation about the most recent security breaches. He acknowledged that they reflected poorly on work practices at MWCC and the efficacy of remedial strategies implemented as a result of Defaults 1 to 3.
Mr Bradbury confirmed his advice forwarded to me on Thursday 7 th September indicating that as a result of my assessment he has liaised further with Sodexho in Paris and confirmed that the Board of Directors had agreed to resource a range of proposals put to it by Mr Bradbury for resourcing at MWCC. On this basis Mr Bradbury indicated in his correspondence that he had "confidence that the support now provided will achieve the long awaited outcome. The intention is to provide initially 8 experienced staff positions .... continue to assess and apply the ongoing staff requirement in relation to prison numbers and assess staff capability in specific positions. I have evaluated the physical security enhancements at the Centre and have recommended changes which have been positively met.." I acknowledged these intentions, however expressed concern that the commitments had been made so late in the process.
Additional experienced, appropriately trained and supervised staff should result in improved services, however, as I have indicated previously, there remain deficiencies which I consider are impacting on the performance of the prison. For example, poor leadership, which was recently demonstrated again, whereby an experienced Centre Coordinator did not initiate an emergency response (bomb threat) and failed to advise management in relation to a major security breach within the Management Unit.
CCA have been given ample opportunities over the last 12 months to respond appropriately to the wide ranging and persistent failures in their delivery of correctional services . CCA’s expressed intention to improve levels of resourcing has been left very late and after a lengthy and continuing period of extensive compromise to prisoner welfare and entitlements. Notwithstanding CCA’s latest commitment, I remain highly skeptical on their ability to deliver a satisfactory correctional service in the operation of the MWCC.
7. Further Monitoring
Pending resolution of this matter OCSC will deploy monitors on site from time to time to ensure compliance with service obligations. Information gathered will inform a contemporaneous assessment of the prison environment as well as the status of remedies.
It is recommended that you:
• instruct the Secretary to advise CCA that they remain in default in 5 areas of the service failures noted above. These defaults are persistent and continuing in nature;
• take legal advice in respect of the exercise of the options under the Contract, the requirements of the Corrections Act, and in respect of the implications of those failures for the Minister and Secretary in the discharge of their obligations under the Corrections Act;
• note that should further service failures be indicated I will deploy OCSC monitors to the prison to conduct on site assessments. The results of these assessments will be conveyed to the Minister, as they become available; and
• note that I will advise the Minister further on my assessment of the MWCC health service following receipt of the Clinical Audit later this week and the finalisation of the OCSC investigation into the management of the attempted suicide incident on 1 September 2000.
13 September 2000